CONTRACT TERMS AND CONDITIONS

The FD. Johnson Company herein referred to as “Buyer,” hereby offers to purchase from the party, herein to as “Seller,” the materials, work and/or service herein specified, subject to the following terms and conditions.

1. Acceptance of Contract.  This order becomes a contract subject to the terms and conditions set forth herein when accepted by acknowledgement or commencement of performance by Seller. No change in, modification of, or revision of this order or the terms and conditions hereof, shall be valid unless agreed to in writing by, hereinafter called the “Buyer”. The failure of Buyer to actively reject orally or in writing, any conflicting or contradictory terms contained in any document forwarded by Seller or Buyer subsequent to this Purchase Order shall not be deemed to be an assent to such terms.
2. Prices. Unit cost chargers shall be confirmed to Buyer within five (5) business days prior to shipment. Such prices shall be the price of the goods and full extent of Buyer’s liability for the goods, unless a different price is agreed to in writing by Buyer. In no event shall Seller invoice Buyer for the goods at a price higher than such quoted price, or, if no price has been quoted, the price appearing on the face hereof Sellers warrants that the prices for the goods are not less favorable than those currently extended to any other customer for the same or like articles in equal or less quantities. In the event Seller establishes or offers to reduce the prices hereof such articles in such quantities, either generally or for any one sale to any other consumer, from the date of acceptance of this order to the date the goods are invoiced to Buyer, Seller agrees to reduce prices hereof correspondingly
3. Extra Charges. No additional charges of any kind, including charges for boxing, packing, or cartage, taxes, imports or exports duties, excises or other extras will be allowed unless specifically agreed in writing in advance by Buyer.
4. Taxes. Seller’s prices shall exclude any Federal, state, or local sales, use or excise taxes levied upon, or measured by the sale, the sales price of the goods. All such taxes, lawfully applicable, shall be listed separately on seller’s invoice. If such applicable taxes are not separately listed, Seller assumes responsibility for the payment of them, and shall indemnify and hold Buyer harmless from any and all liability in connection with such taxes. Tax exemption certificates other evidence of exemption, furnished by Buyer, shall be accepted by Seller in lieu of such taxes.
5. Delivery. Deliveries are to be made both in quantities and at specified herein. If delivery is not made within specified on the order, which is of the essence, or within the time mutually agreed upon or if unspecified, with a reasonable time, Buyer may (1) cancel and void this order or any part thereof without liability, and (ii) charge Seller for the losses and damages incurred as a result of Seller’s failure to timely deliver the goods.
6. Transportation and Packaging. If the goods are not packaged, marked, shipped  and routed in accordance  with Buyer’s direction and the instructions set out in this order, Buyer may reject the goods; if Buyer does accept them, Seller shall pay to Buyer any excess cost occasioned it thereby. Buyer will not accept boxes, Bundles, containers, or pallets weighing over 600 lbs., which shall be returned to Seller at Seller’s risk, and all transportation and handling charges, both to and from the original destination, shall be paid by Seller. Buyer shall have no obligation to accept any deliveries for the order which are not accompanied by an itemized packing slip. The Purchase Order Number must be referenced on the packing slip, all shipping labels and all other documents and corresponding pertaining to his order.
7. Title and Risk of Loss. Except as otherwise expressly provided herein , title to and risk of loss on all goods shipped by Seller to Buyer shall not pass to Buyer until Buyer’s inspection and acceptance of such goods at Buyer’s warehouse or job site specified.
8. Acceptance of Goods and Inspections. Acceptance of the goods shall take place at the time when such goods have been delivered to Buyer and have passed Buyer’s inspection and test. Inspection and test of the articles by Buyer may at Buyer’s option be made at Seller’s plant and/or the point of destination. Acceptance of all or any part of the goods by Buyer shall not relieve Seller from any of its obligations and warranties hereunder, nor will acceptance of any part of the order bind the Buyer to accept future shipments or deprive Buyer of any rights which may have to return goods already accepted.  Acceptance of all or any part of the order shall not be deemed a wavier of the Buyer’s right either to cancel or to return all or any portion of the goods because of failure to conform to the order by reason of defects, latent or patent, or other breach of warranty, or to make any claim for damages, suffered by the Buyer as a result of any default of the Sellers or the Seller’s products or performance. In no event shall payment deemed to constitute acceptance.                                                                                                                                                  If inspection discloses that any part of the good received, including the packaging thereof, is not in accordance with Buyer’s specifications and directions, or if any of the goods fail to meet the warranties contained in Paragraph 10 hereof, Seller, upon notice thereof from Buyer, shall promptly correct or replace the same at Seller’s expenses. If Seller shall fail so to do, Buyer may cancel this order as to all such goods and in addition, may cancel the then remaining balance of this order. After notice to Seller, all such goods will be held at Seller’s risk. Any rejected material held for instructions from Seller is held at no cost or liability to the buyer. Buyer may, and at Seller’s direction shall return such goods to Seller’s risk, and all transportation and handling charges, both to and from the original destination , shall be paid Seller. Any payment for such goods shall be refunded by Seller unless Seller promptly corrects or replaces the same as its expense. Return of any defective material by Buyer shall not be deemed a waiver of any right or remedy which Buyer may have as a result of or in connections with the existence of such defect or defects.
9. Payment. Payment shall be made according to the terms set forth of this order. Unless otherwise agreed, invoices shall be paid within 60 days after the receipt of the invoice or of the goods by Buyer, whichever is later. It is understood that the cash discount period will date from the receipt by Buyer of the goods or of the invoice, whichever is later. C. O. D. shipments will not be accepted.
10. Warranties. Buyer shall have the right to all Buyer’s remedies and Seller’s warranties to the fullest extent provided under the  Uniform Commercial Code, including , but not limited to warranties or merchantability and fitness and such remedies and warranties shall survive inspection, test, acceptable and payments.
11. Indemnification. Seller shall indemnify and hold Buyer harmless against all loss an account of claims of injuries to person or damage to property based in whole or in part upon a defect in the goods or from any act or omission of Seller, its agents, employees and subcontractors. Further, Seller agrees to indemnify and hold harmless the Buyer, its successor and assigns, against any and all claims, liabilities, cost and expenses ( including, but not limited to , court cost, attorney fees, inspections fees, or cost of testing) incurred by Buyer in connection with or related to any recall, inspection, test, replacement or correction of the goods or any and all parts or equipment in which the goods are incorporated when such recall, inspection, test, replacement  or correction result from or are related to, in whole or in part, a defect in the goods.
12. Excess Goods. Except for customary quantity variations recognize by trade practice, goods in excess of those specified need not be accepted by Buyer and any such goods not accepted will be held at Seller’s risk. Buyer may, and at Seller’s direction shall, return such goods at Seller’s risk, and all transportation charges, both to and from the original destination, shall be paid by Seller.
13. Fabrications and Material Commitments. Unless otherwise authorized in writing by Buyer, Seller shall not make commitments for materials nor fabricate in advance of time necessary to permit shipment on delivery dates.
14. Changes. Buyer shall have the right by written notice to cancel, suspend or change from time to time the goods and services to be furnished by Seller hereunder.

Upon the receipt of such notice, Seller shall immediately comply with the notice and adjust operations in connection with this order accordingly. All cost and expenses relating to this order and incurred by Seller subsequent to the receipt of such notice, which would not have been incurred if Seller had complied with such notice, shall be the sole responsibility of Seller.

In the event of cancellation of this order, Buyer shall be responsible and liable only for the price of the goods accepted prior to such notice plus the actual and reasonable cost incurred by Seller prior to notice of cancellation with respect to the goods cancelled.

In the event of suspension of this order Buyer shall be responsible and liable only for the price of the goods eventually accepted. Any increase in the price of such goods shall be subject to the prior approval of Buyer.

In the event of a modification of this order by Buyer (including, but not limited to, a change in the number or design of the goods), Buyer shall be responsible and liable only for the price of the goods accepted plus the actual and reasonable cost incurred by Seller to accomplish such modification. Any increase in the price of the goods resulting from modification of this order is subject to prior approval of Buyer.

In the event of any cancellation, suspension or modification of this order, Buyer shall not be responsible or liable for any cost of production, processing or shipping of the goods apart from the price of goods accepted if such cost represent a portion of and are included in the price of such accepted goods.

In the event of any cancellation, suspension or modification of this order, Seller shall not be entitled to, nor shall Buyer be responsible for, anticipatory profits or consequential damages.

1. Default. Buyer reserves the right by written notice, to cancel this order without liability to Buyer in the event of (l) insolvency of Seller, (ll) the filing of a voluntary Petition in Bankruptcy by Seller, (lll) the filing of an involuntary petition to have Seller declared bankrupt, (lV) the appointment of a Receiver or Trustee for Seller, (V) or the execution by Seller of an Assignment for THE Benefit of Creditors. If Seller fails to perform, or breaches any of the terms, Buyer reserves the right, immediately upon such failure of performance or breach, and without any liability to Buyer (l) to cancel this order in whole or in part by written notice to Seller, or (ll) after notifying Seller of such failure pr breach and of Buyer’s intent to exercise such right, to obtain goods from another source, with any excess cost resulting therefrom, chargeable to Seller. Seller shall be liable for Buyer’s damages in connection with such breach or failure to perform including consequential damages reasonably foreseeable by Seller or of which Seller was apprised by Buyer, provided, however, the Seller shall not be responsible for delays or defaults occasioned by fires, Acts of God, wars or riots, but in the event of such occurrence, Buyer reserves the right to cancel this order without liability of any kind.
   1. Patent Indemnification. Except when Buyer supplies all specification for the goods , Seller shall hold and save Buyer, its successors, assigns, customers and users harmless from loss and/or liability of any nature of kind arising out of or existing because of the infringement of any patent for or on account of the manufacture, sale or use of any goods furnished hereunder. Buyer shall notify Seller in writing of any suit files against it or their customers, on account of any such infringement or alleged infringement, and at Seller’s request shall give Seller control of the defense of such suit, insofar as Buyer has the authority to do so, and information and assistance for the same, all at Seller’s Buyer and the party against whom suit is brought, may be represented by their own counsel in any such suit. Furthermore, in the event that Buyer should be enjoined in such suit or proceeding from using any part of the goods delivered hereunder, Seller, at its option, shall promptly either (a.) secure termination of the injunction or liability; or (b.) replace said goods with non-infringing goods or modify  them to become non-infringing, all at Seller’s expense. The provisions of this paragraph shall not apply to the Buyer’s use of any of the goods delivered hereunder in combination with other materials or in the practice of any process, or to infringement by reason of such case.
   2. Consignment. Machinery, equipment, patterns, drawings, specification and samples furnished to Seller by Buyer on other than a charge basis shall be held by Seller as upon consignment, and upon the completion of this order shall be returned by Buyer or otherwise satisfactory  accounted for. Unless otherwise agreed, Seller at its expense shall insure all such items for the reasonable value thereof against loss or damage of any kind.
   3. Buyer’s Property. All tools, equipment dies, gauges, models, drawings, or other materials furnished by Buyer to Seller or made by Seller for the purpose of this order of paid for by the Buyer, and all replacements thereof and materials fixed or attached thereto, shall be and remain the property of the Buyer. All of Buyer’s property and whenever applicable, each individual item thereof will be plainly marked  and otherwise adequately identified by Seller as property of Buyer, and will at Seller’s expense be safely stored ( separate and apart from Seller’s property whenever practicable) and will be kept free of all liens, claims, encumbrances and interest of third parties. Upon completion by Seller of this order, or upon the written request of Buyer at any time, Seller will prepare all such property of buyer for shipment and delivery such property to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted.
   4. Confidential Information. All specifications, drawings, designs, manufacturing and placement details and other information delivered by Buyer to Seller are the property of Buyer. They are delivered solely for the purposes of Seller’s performance of this order and on express condition that neither they nor the information contained therein shall be disclosed to others nor used for any purpose other than in connection with this order without the prior written consent of Buyer. Such specifications, drawings, designs, manufacturing and placement details and other information are to be returned to Buyer promptly upon Seller’s completion of this order. The obligations under this paragraph will survive the cancellation, termination or completion of this order.
   5. Compliance with Laws. Seller shall, in the performance of work under this order, comply fully with applicable Federal, State and local laws and regulation, and Seller herby certifies that the performance of such work and the goods provided hereunder do in fact comply with all such laws and regulations. Seller shall indemnify and hold Buyer harmless from any cost, loss or liability resulting from Seller’s failure of compliance with such laws and regulations.
   6. Assignment. Seller shall not assign or transfer this order or any interest herein or monies payable thereunder without consent with Buyer, and any assignment or transfer made without such consent shall be null and void.
   7. Remedies. The remedies provided Buyer herein shall be cumulative and in addition to any other remedies provided by law or equity. A wavier of a breach of any provision hereunder shall not constitute a wavier of any other breach.
   8. Applicable Law. The contract resulting from the acceptance of this order shall be governed by and construed according to the laws of the State of Ohio.