WINCHESTER TOOL, LLC

(“BUYER”)

TERMS AND CONDITIONS OF PURCHASE

 

  1. Acceptance of Terms and Conditions. The acceptance of the terms and conditions herein is an essential prerequisite to any contract of purchase made by Buyer. Any offer or acceptance by Buyer is made subject to the terms and conditions contained herein and no additional or different terms offered by Seller shall become a part of the agreement of sale between Buyer and Seller unless such terms have been expressly approved in writing by an authorized agent of Buyer. If this document is an offer, acceptance of this offer is expressly limited to the terms thereof, and Buyer reserves the right to withdraw this offer at any time before its acceptance by Seller. If this document has been issued by Buyer in response to a written offer made by Seller, Buyer’s acceptance of Seller’s offer is expressly conditioned on Seller’s assent to the additional or different terms contained herein. If these terms and conditions are not acceptable, Seller shall notify Buyer in writing at once. Seller’s action in (a) acknowledging this Purchase Order, (b) commencing performance, or making shipment of products, (c) performing services called for hereunder, or (d) receiving this purchase order without disaffirmance within three (3) business days of receipt shall constitute an unqualified acceptance by Seller of the terms and conditions contained herein.
  2. Changes. Buyer reserves the right to change specifications, requirements or date of delivery. Differences in contract prices resulting from such changes shall be equitably adjusted between Buyer and Seller.
  3. Risk of Loss and Title. Risk of loss and title shall pass to Buyer upon delivery of goods to Buyer’s designated destination.
  4. Shipping and Delivery. Seller is responsible, at its expense, for damage-free delivery of goods to the delivery point specified herein – on the vehicle where delivery is at shipping point and upon arrival of the vehicle where delivery is at destination. Time is of the essence, and if delivery of items or rendering of services is not completed by  the time promised, Buyer may, without liability and in addition to its other rights and remedies, (i) terminate this order as to items not yet shipped or services not yet   rendered, (ii) purchase substitute items or services elsewhere, and/or (iii) charge Seller with any damages incurred, whether special, direct, indirect, incidental or    consequential. No C.O.D.’s will be accepted by Buyer.
  5. Inspection. Materials or equipment purchased are subject to inspection and approval at Buyer’s destination. Buyer reserves the right to reject and refuse acceptance of items which are not in accordance with applicable instructions, specifications, drawings, data or other descriptions furnished or specified by Buyer, or with Seller’s samples or Seller’s warranties (express or implied). Buyer may charge Seller for the cost of inspecting merchandise rejected pursuant to this paragraph. Items not accepted will be returned to Seller at Seller’s expense. Payment for any item delivered shall not constitute acceptance thereof.
  6. Inspecting your Facility. We or our representative may inspect your facility where you make, store, or ship the goods, with reasonable notice and in a reasonable manner, up to two(2) times per year(or more if we find a breach of this order). If the inspection reveals that you have breached this Order, you will immediately take all corrective actions that we reasonably require. We or our representative may return to inspect your facility as often as needed to reasonably ensure that the breach has been corrected. Inspections are at our discretion and do not relieve you of any obligations of this Order.
  7. Prices and Invoices. Separate invoices for each order are required. All taxes are for the account of Seller unless specifically and separately stated on the front of the invoice and accepted by Buyer. No invoice will be rendered at a price higher than that stated on this purchase order unless authorized in writing by Buyer. No extra charges will be accepted against any purchase order without written approval of Buyer. Unless otherwise indicated on the face of this purchase order, shipping and handling costs are included in the amount set forth thereon. Any due date or discount date will be calculated from the date the invoice is received by Buyer, acceptable in accordance with the terms and instructions contained herein. Buyer accepts no charges on any invoices with respect to liquidated damages or delinquent charges.
  8. Limitation of Liability. Buyer’s liability for breach of this purchase order will not exceed the difference between the resale price of any materials sold in good faith and in a commercially reasonable manner and the contract price for such materials, less expenses saved in consequence of Buyer’s breach. Buyer will not be liable for any consequential, incidental, special, delay, punitive or liquidated damages of any type.
  9. Packing and Cartage. No charge will be allowed for packing, boxing or cartage without the written approval of Buyer. Damage to any items not packed or labeled to ensure proper protection thereto will be charged to Seller. Shipping documents and a separate invoice for each shipment on this order must be mailed to Buyer’s office issuing this order on the day shipment is made. Packing lists must accompany each shipment. Each package, invoice, bill of lading and shipping notice must be marked plainly with Buyer’s order number.
  10. Warranty. In addition to all warranties imposed by law, Seller expressly warrants that all goods delivered pursuant hereto will conform to the specifications, drawings, samples or other description furnished or specified by Buyer and will be fit for the purpose intended, merchantable, of good material and workmanship and free from  defects, including, without limitation, defects in manufacture and design. Seller further warrants that no hazardous materials, medical waste, or other materials that could be deemed hazardous to Buyer or its agents will be a part of any shipment. Neither payment nor inspection by Buyer can constitute a waiver of any breach of warranty. Goods returned to Seller for breach of warranty will be credited to Buyer’s account.
  11. Indemnity. Seller will indemnify, defend and hold harmless Buyer against any and all liabilities whatsoever for damages and/or injuries, and cost and expense, including reasonable attorney’s fees, which may be incurred by Buyer by virtue of defective materials or workmanship in articles or materials supplied hereunder, or for any breach of the warranty or other obligations of Seller set forth herein, including all costs and reasonable attorney’s fees incurred by Buyer in securing this indemnity. This indemnity obligation shall run to Buyer, its successors, assigns, customers and the users of its products.
  12. Compliance with Laws. Seller will at all times comply with all state and federal laws applicable to its performance. The goods and services provided by Seller on this order will be provided in accordance with Executive Order 11246, as amended, of the President of the United States on equal employment opportunity and the rules and regulations issued pursuant thereto.
  13. Patents, Trademarks and Copyrights. Seller shall defend at its own expense any suit, action or proceeding in which Buyer, Buyer’s agents or the users of Buyer’s products are made defendants for actual or alleged infringement of any U.S. or foreign patent, trademark or copyright resulting from the use or sale of the items        purchased hereunder (except for infringement necessarily resulting from adherence by Seller to Buyer’s specifications or drawings), and Seller shall pay and discharge    any and all judgments or decrees which may be rendered in any such suit, action or proceeding against such defendant and otherwise indemnify and defend Buyer      against any damages or expenses, including reasonable attorney’s fees, incurred by Buyer in any manner arising from any such suit, action or proceeding.
  14. Buyer’s Property. Any of Buyer’s property delivered to Seller for Seller’s performance of this contract, including, without limitation, blueprints, patterns and tools, shall remain Buyer’s property and Seller is responsible to return them to Buyer in the same condition as received.
  15. Confidential Information. This purchase order is a matter of confidential information, and Seller will strictly protect the confidentiality hereof. Information on this purchase order is furnished by Buyer on the understanding that it may and will be used only for the purpose of satisfying this order.
  16. Liens. Seller will place no liens against Buyer. In the event Seller obtains any mechanic’s or other lien, by operation of law or otherwise, Seller will execute an appropriate document waiving all liens against Buyer.
  17. Force Majeure. Fires, accidents, labor disturbances, war conditions, acts of terrorism, nuclear incidents, acts of God, governmental acts, laws or regulations, involuntary cessation of operation of any of Buyer’s plants for any reason, or other causes beyond the reasonable control of Buyer rendering Buyer unable to receive the items or services covered by this purchase order will permit Buyer at its option to cancel this order by notice to Seller, without liability of Buyer to Seller for such cancellation.
  18. Non-Waiver. Any waiver or failure by Buyer to require strict compliance with any of the provisions hereof shall not operate as a waiver of Buyer’s right to insist upon strict compliance therewith thereafter.
  19. Termination. Buyer may at any time demand that Seller terminate work on this order. In the event such termination is not due to the default or breach of Seller hereunder, any claim arising out of such termination shall be settled exclusively by Buyer’s reimbursing Seller for documented costs actually and properly incurred by Seller for the purchase, assembly or manufacture of the goods (with due allowance for their salvage value after Buyer has had full opportunity to recommend disposition). In the event such termination is due to the default or breach of Seller hereunder, Buyer shall have no liability to Seller and Buyer shall have all rights and remedies against Seller as provided under this purchase order and under applicable law.
  20. Remedies Cumulative. All remedies provided Buyer herein are cumulative and are in addition to any other remedies of Buyer at law or in equity.
  21. Assignment. Buyer may, in its sole discretion, assign this contract to any successor to all or substantially all of its business. Seller may assign this contract only with the prior written consent of Buyer.
  22. Modification. This order represents the entire agreement between the parties concerning the matters covered herein and there are no oral understandings or representations affecting it. No waiver, alteration or modification of the terms of this purchase order shall be binding unless in writing and signed by an authorized agent of Buyer.
  23. Governing Law, Jurisdiction and Venue. The contract between the parties hereto shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia and shall be deemed entered into at Buyer’s place of business. The parties agree that any controversy arising under the contract herein shall be determined by the Courts of the Commonwealth of Virginia, and both parties hereby submit and consent to the jurisdiction of said Courts and agree that venue for any action arising hereunder shall lie in Frederick County, Commonwealth of Virginia or the U.S. District Court for the Western District of Virginia (Harrisonburg Division).

Flow Down Requirements:

  1. Seller Nonconforming Goods: Seller must notify Purchasing Agent if a nonconformance arises before or after shipment and notification must be done by e-mail or fax. The Buyer also has the right to notify the vendor if product is received and a nonconformance is found. Any goods or services which are nonconforming as to quality, quantity, delivery schedule, or AS/ISO compliance will constitute a breach of this purchase order. In the event such a tender, Buyer will be entitled to all remedies as provided by law, and in addition thereto will have the right to do any or all of the following, at the Seller’s risk and expense: (1) to reject the goods or services in whole or part (2) to return such nonconforming goods to the Seller for replacement and or correction (Buyer’s Election) (3) to accept such nonconforming goods or services subject equitable price reduction (4) to replace or correct such nonconforming goods and charge to Seller the cost occasioned to Buyer thereby; (5) to reject and repackage nonconforming deliveries at Seller’s expense (6) to recover by offset or otherwise any and all expenses, costs, price reductions, and damages paid, incurred, or suffered by Buyer as a result of any of foregoing (including those related to late deliveries)
  2. Seller Notification: Seller is to send notification by e-mail or fax to Purchasing Agent if changes arise in product, process, and change of supplier, change of manufacture facility or location and request approval of the change by Purchasing Agent.
  3. Seller Record Retention: Seller is required to retain records on product, service, documents (including material certification/mill specifications) or material for 5 years.
  4. Access to Seller Facility: Seller shall comply with Buyer’s or regulatory authorities’ rules and regulations for access to and activities in and around facilities or premises controlled by Buyer or Buyer’s customers (Including Sellers Records).