Webb-Stiles Company - Terms and Conditions of Purchase from Vendors

All purchases of products, materials and services by Webb-Stiles Company (the “Buyer”) from you (the “Seller”) are subject to the terms and conditions set forth hereinbelow, and these terms and conditions are hereby incorporated into each quotation, proposal, purchase order, sales order, acknowledgement, invoice and similar document related thereto (collectively, an “Order”):

1. PRICE: The price shall not be higher than that appearing on the face of the Buyer’s Order, or if no price appears thereon, then no higher than that last quoted by Seller.

2. INSPECTION & ACCEPTANCE: Delivery of the goods, materials and services shall not constitute acceptance of such goods, materials and services. All goods and materials ordered shall be subject to inspection and acceptance by Buyer after delivery to Buyer’s location. Material failing to meet the requirements of Buyer’s Order will be held at Seller’s risk and may be returned at Seller’s expense. Any new, inconsistent or additional terms contained in any quotation or previous offer from Seller are hereby rejected unless expressly accepted in writing by Buyer within ten (10) days after delivery of such Order.

3. SUBSTITUTION AND EXTRAS: No substitutions of products, materials or accessories may be made without Buyer’s written consent. No charge will be allowed for extras, shipping, packing, crating, freight, express or other carrier’s charges for cartage, unless designated on Buyer’s Order. If Buyer designates a specific shipper on the front of its Order, Seller agrees to use such shipper. In the event Seller fails to use such shipper, Seller shall be responsible for any increase in shipping costs to Buyer along with any other costs and expenses incurred by Buyer due to Seller’s failure to use the designated shipper.

4. CANCELLATION: In addition to any other rights which the Buyer may have, Buyer reserves the right to cancel any Order in whole or in part, holding the Seller responsible if any products, material or accessories furnished pursuant to an Order or any shipment thereunder are not as specified or if delivery is not made when and as specified. TIME IS OF THE ESSENCE AS TO THE PERFORMANCE OF ANY ORDER. Buyer may cancel an Order in whole or in part if the Seller is adjudicated a bankrupt, if a petition under the Bankruptcy Act is filed against Seller, if the Seller makes an assignment for the benefit of creditors, if a receiver of the property of the Seller is appointed or if an action under any law for the relief of debtors is taken in respect of the Seller. Upon any cancellation of an Order by Buyer, the Buyer’s sole liability shall be for Seller’s actual out of pocket expenses in performing such Order up to the date of cancellation (not to exceed the total Order price) and in no event shall Seller be entitled to direct, indirect, punitive, incidental, special or consequential damages, including, without limitation, lost opportunity costs, unabsorbed overhead or anticipated profits as a result of such cancellation.

5. DELIVERY: Unless otherwise agreed in an Order, Seller shall not make material commitments or production arrangements in excess of the amount, or in advance of the time, necessary to meet Buyer’s delivery schedule, except at Seller’s own risk. It is the Seller’s responsibility to comply with this schedule, but not to anticipate Buyer’s requirements.

6. PATENT, COPYRIGHT AND TRADEMARK INDEMNIFICATION: Seller warrants that it will defend at its expense the allegations of any suit against Buyer or Buyer’s customers respecting infringement of any U.S. or other Patent, or violation of any copyright or trademark, covering all or part of the products, materials or accessories furnished under any Order, their manufacture and/or use, or Seller shall procure for Buyer or Buyer’s customers the right to continue to use such products, materials or accessories, or replace it with substantially equivalent non-infringing or non-violating products, materials or accessories. Buyer shall reasonably notify Seller of any charge of and suit for such infringement and tender to Seller the defense of such allegations, Buyer having the right to be represented in such defense at its own expense.

7. OVER SHIPMENT: Materials shipped in excess of quantity ordered may be returned at Seller’s expense, which expense shall include, but not be limited to, packing, crating, freight and express costs and charges along with Buyer’s labor costs, or, alternatively, at Buyer’s option, Buyer may charge Seller an amount not to exceed fifty dollars per package, plus shipping costs, for each package returned.

8. TITLE & RISK OF LOSS: Unless otherwise specified on the face of an Order, all risk of loss or damage and title to the material or equipment furnished under an Order shall pass to Buyer upon delivery at Buyer’s premises.

9. WARRANTY: Seller expressly warrants that all products, goods, materials, accessories and/or services specified in each Order shall conform to the specifications, drawings, samples of other description upon which such Order is based, shall be fit and sufficient for the purpose intended, merchantable, of good material and workmanship and free from defect. Inspection, test, acceptance or use of the products, goods, materials, accessories and/or services furnished under such Order shall not affect Seller’s obligation under this warranty, and such warranty shall survive inspection, test, acceptance and use. This warranty shall run to Buyer, its successor, assigns and customers and the user of its products, goods, materials, accessories and/or services and shall survive termination or cancellation of this contract. Seller agrees to replace or correct defects (including labor and transportation) in any products, goods, materials, accessories and/or services not conforming to the foregoing warranty promptly without expense to Buyer, when notified of such non-conformity by Buyer. In the event of failure by Seller to correct defects in or replace non-conforming products, goods, materials, accessories and/or services promptly, Buyer may make such corrections or replace such products, goods, materials, accessories and/or services and charge Seller for costs incurred by Buyer thereby. The warranties and remedies contained herein supplement the warranties and remedies provided by the Uniform Commercial Code, which warranties and remedies shall not be disclaimed or limited in any way by Seller. In the event Buyer incurs any cost, expense and/or fee (including, but not limited to, reasonable attorney fees, court costs and related expenses) in the enforcement of its rights hereunder (“Enforcement Costs”), then Seller shall reimburse Buyer for all such Enforcement Costs upon demand.

10. INDEMNITY: Seller shall defend and indemnify Buyer against all damages, liabilities, claims, losses and expenses either direct, indirect or consequential (including attorneys’ fees) arising out of, or resulting in any way, except from Buyer’s gross negligence or intentional misconduct, from any defect in the products, goods, materials, accessories and/or services purchased hereunder or from any act or omission of Seller, its agents, employees or subcontractors. This indemnity obligation of Seller shall survive the expiration, termination or cancellation of this contract.

11. DATA: Seller shall not use or disclose any data, designs, or other information belonging to or supplied by or on behalf of Buyer, except in the performance of Orders for Buyer. Upon Buyer’s request such data, designs, or other information and any copies thereof shall be returned to Buyer. Where Buyer’s data, designs, or other information are furnished to Seller’s suppliers for procurement of supplies by Seller for use in the performance of Buyer’s Orders, Seller shall insert the substance of this provision in its orders. Any knowledge or information which the Seller shall have disclosed or may hereafter disclose to the Buyer incident to the placing and filling of any Order, shall not, unless otherwise specifically agreed upon in writing by the Buyer, be deemed to be confidential or proprietary information, and accordingly will be acquired free from any restriction. No employee of Buyer has authority to make any agreement, express or implied, limiting the use or publication of or providing for confidential treatment of information or suggestions of whatever kind received by him, unless such agreement is made in writing and signed by the Buyer’s President.

12. SPECIAL EQUIPMENT: Unless otherwise agreed in writing, all tools, equipment or materials of every description furnished to Seller by Buyer and specifically paid for by Buyer and any replacement thereof, of any materials affixed or attached thereto, shall be and remain the personal property of Buyer. Such property, and whenever practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as “Property of Buyer” and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for Buyer’s property and shall not use such property except in filling Buyer’s orders. Such property while in Seller’s custody or control shall be held at Seller’s risk, shall be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to Buyer. Such property shall be subject to removal at Buyer’s written request, in which event Seller shall prepare such property for shipment and shall deliver it to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted, all at Seller’s expense.

13. COMPLIANCE WITH LAWS & REGULATIONS: Seller shall cause the work and materials contemplated hereunder to be performed and manufactured in strict conformity with federal, state and local laws and ordinances, and all lawful regulations of any public authority applicable to this transaction, and Seller agrees, upon request, to furnish Buyer a Certificate of Compliance with any or all such laws in such form as Buyer may require.

14. APPLICABLE LAW: The right and duties of the parties hereto shall be determined under the exclusive jurisdiction by the laws of the State of Ohio and to that end this contract shall be construed and considered as a contract made and to be performed in the State of Ohio. The parties agree that the United Nations Convention of Contracts for the International Sale of Goods will not apply to this contract. Further, the Buyer and Seller agree to submit to the exclusive jurisdiction of the appropriate local, state or federal courts within Medina County, Ohio for purposes of resolving any dispute or claim arising in connection with said transaction. Nothing in these terms and conditions shall be construed as creating any act or beneficial right in or on behalf of any third party. The failure of either party to insist or enforce in any instance strict performance of any of the terms of this contract or to exercise any rights hereunder conferred, shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon such terms or rights on any future occasion.

15. SET-OFF: If delivery is not made within the time specified in an Order, Buyer may purchase elsewhere and charge Seller the difference in price and/or Buyer may cancel the entire Order or any undelivered portion thereof. Payments due Seller may be offset against sums owed by Seller to Buyer.

16. CHANGES IN WRITING: Each Order represents the final written expression of agreement between Buyer and Seller constituting the entire contract between Buyer and Seller and superseding all previous communications, either oral or written. In the event the terms and conditions of an Order are inconsistent in any manner with a quotation or proposal from Seller, such Order shall be deemed a counteroffer and Seller’s subsequent delivery shall be deemed Seller’s acceptance of such counteroffer on the terms and conditions contained in such Order. No terms or conditions other than those set forth above and on the face of Buyer’s Order shall be effective unless said changes are reduced to writing and signed by both parties. Shipment by Seller of goods or materials pursuant to an Order shall be deemed to be an acceptance by Seller of these Terms and Conditions. Any new, inconsistent or additional terms or conditions in Seller’s acknowledgment of any Order or Seller’s invoice, regardless of whether such terms and conditions are material or not, shall not be binding unless expressly accepted in writing by Buyer specifically referencing these terms and conditions and the new, inconsistent or additional terms by Seller. Buyer specifically objects to the inclusion of any new, inconsistent or additional terms or conditions by the Seller in acknowledging, confirming or accepting any Order. If Seller does include different or additional terms and conditions in its acknowledgement, acceptance, confirmation, invoice or other written form sent in response to an Order, neither Buyer’s acceptance or delivery of all or part of the products, goods, materials, accessories and/or services, nor Buyer’s payment for the products, goods, materials, accessories and/or services shall constitute acceptance of such new, inconsistent or additional terms, but instead these terms and conditions shall govern. Neither an Order nor any interest therein nor any claim arising thereunder shall be transferred or assigned by Seller without the written approval of Buyer.

17. PAYMENTS: All payments will be made at NET 45 days unless otherwise specified on order.

18. UNAUTHORIZED SHIPMENT: If unauthorized partial shipments occur, payment of order will be made against date of final invoice, less any additional freight charges.