Terms & Conditions

TERMS AND CONDITIONS: SALE

TERMS OF OFFER. Prices quoted are open for acceptance for thirty (30) days after the date of quotation. Prices quoted are subject to adjustment to Seller’s price in effect at the time of shipment.

ACCEPTANCE, GOVERNING TERMS, CANCELLATION. No order for products or services of Seller shall be binding upon Seller unless accepted in writing by an authorized official of Seller at its home office. Any such order shall be subject to these terms and conditions, and any acceptance of an order by Seller shall be expressly conditioned on assent to such terms and conditions, which assent by Buyer shall be deemed given unless Buyer shall expressly notify Seller to the contrary within ten (10) days after receipt of acknowledgement or confirmation of an order, and in all events prior to commencement of any delivery or performance of such order. No modified or other terms or conditions will be recognized by Seller unless specifically agreed to by Seller in writing, and failure of Seller to object to provisions contained in any purchase order or other communication from Buyer shall not be construed as a waiver of these terms and conditions, nor an acceptance of any such provisions. Stenographic or clerical errors are subject to correction. No order accepted by Seller may be altered or modified by Buyer unless agreed to in writing by Seller; and no such order may be cancelled or terminated except upon payment of Seller’s loss, damages and expenses, prorated selling price (which includes seller’s profit margin) arising from such cancellation or termination.

PRICE.
The price of the products or services shall be as stated on the applicable order; however, Seller’s prices are subject to adjustment to take account of any variation in the Seller’s costs (beyond the reasonable control of Seller) including (but not limited to) variations in the cost of materials, exchange rate fluctuation, alterations of duties, changes to the specifications by the Buyer and other costs since the issuance of the order. Seller accordingly reserves the right to adjust the price by the amount of any increase in such cost after issuance of the order. Buyer agrees to issue a new purchase order with the adjusted purchase price. The invoice so adjusted shall be payable as if the price set out therein were the original agreed upon price.
All prices are FCA (INCOTERMS 2010) Seller’s plant. All charges for service field work, which is charged on a per diem basis plus transportation and living expenses, shall be billed to Buyer and paid separately from the price quoted. Prices are exclusive of any use, sales, excise or other tax, federal, state, county or municipal taxes, which may be imposed or levied on the sale of Seller’s products or services, and Buyer agrees to pay any such taxes. If Seller pays such taxes, Buyer shall reimburse Seller the amount of Seller’s payment. Prices are based on running the full quantity for shipment at one time and to one destination unless otherwise agreed to in writing.

DELIVERY. Delivery shall be FCA (INCOTERMS 2010) Seller’s plant. Delivery of products to a carrier at Seller’s plant or other shipping point shall constitute delivery to Buyer, and title shall pass at that time; regardless of freight payment, all risks of loss or damage in transit shall be borne by Buyer. Delivery estimates are based on Seller’s best judgment, and Seller will attempt to fill orders at the agreed time. However, Seller shall not be liable for any damages claimed to result from any delays in delivery due to any cause whatsoever.

TERMS OF PAYMENT. Unless otherwise agreed by the parties in writing, all invoices are due and payable net thirty (30) days from date of invoice. Delays in transportation shall not extend terms of payment. Any amounts not paid when due will be subject to a late payment fee computed daily at a rate equal to the lower of one and one-half percent (1.5%) per month or the highest rate permissible under applicable law. Buyer agrees to pay Seller’s reasonable attorneys’ fees and other costs incurred in the collection of any amounts not paid when due. Should Buyer’s financial responsibility become unsatisfactory to Seller, Seller may demand cash payment or satisfactory security, and in default of such cash payment or said security, deliveries herein may be discontinued at the option of Seller and a charge rendered covering the value of any partially finished articles that are being manufactured on this order or contract.

WARRANTY. SELLER WARRANTS ITS GEARBOX MANUFACTURED PRODUCTS TO BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP UNDER NORMAL USE AND SERVICE FOR A PERIOD OF EIGHTEEN (18) MONTHS FROM DATE OF SHIPMENT OR ONE YEAR IN SERVICE (WHICHEVER OCCURS SOONER), AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS AND ANY OTHER IMPLIED WARRANTIES AND ANY EXPRESS WARRANTIES CONCERNING ITS PRODUCTS EXCEPT THE WARRANTY STATED ABOVE.

REMEDY FOR BREACH OF WARRANTY. Buyer’s sole and exclusive remedy for breach of the aforesaid warranty and for any damages resulting from, caused by or arising out of the use or operation of any products Seller sells to Buyer shall be limited to the repair or replacement (at Seller’s option) of products defective in workmanship or material. Seller shall be notified in writing within ten (10) days after any alleged breach of the aforesaid warranty. Seller shall have the option of inspecting the products at Buyer’s plant or Seller’s plant before allowing or rejecting Buyer’s claim. If the products are inspected at Seller’s plant, then all shipping, crating, handling and other charges with respect to the transfer of the products to and from Seller’s plant shall be paid by Buyer. Claims for shortages or other errors must be made in writing to Seller within ten (10) days after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. No claim for correction will be allowed except for work done with the prior written consent of Seller. No claim will be allowed for products misused by Buyer or damaged in transit. Defects that do not impair the service of the product shall not be a cause for rejection.

AGMA STANDARDS; MTI STATEMENT OF LIMITED LIABILITY. The standards of the American Gear Manufacturing Association will be used where applicable in the manufacture of gears, unless an express written agreement to the contrary is executed between Buyer and Seller. In ordance with the standards of the Metal Treating Institute, the Statement of Limited Liability on the reverse side hereof shall apply to all work involving metal treatment.

BUYER’S MATERIAL. When Buyer furnishes the material that is to be worked by Seller, and it proves defective or involves expenses not normally contemplated by Seller at the time the order is placed, Seller will bill Buyer and Buyer will pay for all expenses involved up to the time of discovery of the defect, or the need for such additional expense. Seller shall, after discovery of any defect in the material, notify Buyer of the discovery and obtain authorization to proceed with the work. Seller shall not be liable for any costs of the material or other damages in the event of spoilage or rejection for whatever cause or reason.

PATTERNS AND TOOLING. Seller shall not be liable for loss of patterns, tooling or merchandise by reason of circumstances beyond Seller’s control.

DEVELOPMENT, DRAWING, PATTERN AND/OR TOOL CHARGES. Development, drawing, pattern and/or tool charges quoted in any proposal represent Buyer’s proportionate cost thereof, and it is expressly understood that such drawings, patterns and/or tools remain the property of Seller, unless otherwise agreed in writing.

PATENTS, ETC. Buyer will indemnify, defend and save Seller harmless from any claims, damages, cost or expenses arising out of any claim of infringement of any patents, designs, copyrights or trademarks with respect to any goods supplied or services rendered pursuant to Buyer’s designs, plans or specifications.

OVERRUNS/UNDERRUNS; ALTERATIONS. All quotations are based on Buyer accepting overruns or underruns not exceeding 10% of quantity ordered, to be paid for or allowed on a prorated basis. No alterations in specifications, either for total quantity, delivery, mechanical, chemical or other details, may be made without written consent of an authorized official of Seller and readjustment of price.

DEFERRED DELIVERY AND WORK STOPPAGE. Should Buyer for good and sufficient cause desire that Buyer’s order be held up or delivery deferred until some later time, approval of the deferred delivery or work stoppage must be obtained from Seller in writing, and Seller may grant said requests subject to the following conditions:

As to work completed prior to Seller’s consent to a deferred delivery or work stoppage, said work shall be held by Seller for Buyer for a period of time not to exceed thirty (30) days. If at the expiration of said period, Buyer has not informed Seller as to the disposition of the completed products, then Seller may ship the products to the destination specified in this agreement, or if Buyer notifies Seller of a destination, Seller may ship the products to said destination. Buyer shall pay all charges and costs, as determined by Seller, concerning all the products covered hereby.

As to work which is uncompleted prior to Seller’s consent to a deferred delivery or work stoppage, Seller shall stop all work and hold the unfinished products for Buyer for a period of time not to exceed ninety (90) days. If by the expiration of said time period, Buyer does not notify Seller to proceed with the work upon the same terms and conditions contained herein and give a delivery date acceptable to Seller, then Seller may declare Buyer in default of Buyer’s obligations hereunder and assess damages against Buyer.

FORCE MAJEURE. Seller shall not be liable to Buyer or any other party for any delay, failure of delivery or other nonperformance caused in whole or part by any contingency or event beyond Seller’s reasonable control, including, without limitation, acts of any government or any agency or subdivision thereof, war, terrorism, riots, equipment breakage, labor trouble, weather conditions and acts of God.

GOVERNING LAW AND FORUM. The validity, performance and construction of the agreement and relationship between Seller and Buyer shall be governed by the laws of the State of Illinois, notwithstanding any other laws which may apply under applicable conflicts of law rules, and all related disputes shall be resolved exclusively in state or federal courts within the State of Illinois, which courts shall have personal jurisdiction over the parties.

EXPORT. Buyer acknowledges that products manufactured by Seller may be subject to U.S. export laws and regulations, and that any foreign use or transfer of such products must be authorized under those laws and regulations. Buyer agrees that it shall (i) comply with all U.S. export laws and regulations which control the products Buyer purchases from Seller, (ii) not use, distribute or transfer such products (even if incorporated into other goods or products) except in compliance with all U.S. export laws/ regulations, and (iii) not sell, export, transfer, ship or otherwise divert any such products to any person, entity or country to the extent prohibited by U.S. export laws/regulations.

STATEMENT OF LIMITED LIABILITY. It is recognized that even after employing all the scientific methods known to Seller, hazards still remain in metal treating. THEREFORE, SELLER’S LIABILITY FOR METAL TREATMENT WORK SHALL NOT EXCEED TWICE THE AMOUNT OF SELLER’S CHARGES FOR THE WORK DONE ON ANY MATERIAL (FIRST TO REIMBURSE BUYER FOR THE CHARGES, AND SECOND TO COMPENSATE BUYER IN THE AMOUNT OF THE CHARGES), EXCEPT AS OTHERWISE PROVIDED BY WRITTEN AGREEMENT SIGNED BY SELLER. BUYER, BY CONTRACTING FOR METAL TREATMENT, AGREES TO ACCEPT THE LIMITS OF LIABILITY AS EXPRESSED IN THIS STATEMENT TO THE EXCLUSION OF ANY AND ALL PROVISIONS AS TO LIABILITY ON BUYER’S OWN INVOICES, PURCHASE ORDERS OR OTHER DOCUMENTS. IF BUYER DESIRES ITS OWN PROVISIONS AS TO LIABILITY TO REMAIN IN FORCE AND EFFECT, THIS MUST BE AGREED TO IN WRITING, SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SELLER. IN SUCH EVENT, A DIFFERENT CHARGE FOR SELLER’S WORK, REFLECTING THE HIGHER RISK TO SELLER, SHALL BE DETERMINED BY SELLER AND BUYER. SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES, AND SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS TO THE PERFORMANCE OF CAPABILITIES OF THE MATERIAL AS HEAT TREATED, OR THE HEAT TREATMENT. THE AFOREMENTIONED LIMITATION OF LIABILITY STATED ABOVE IS SPECIFICALLY IN LIEU OF ANY EXPRESS OR IMPLIED WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS, AND OF ANY OTHER SUCH OBLIGATION ON THE PART OF SELLER. No claims for shortage in weight or count will be entertained unless presented within five (5) working days after receipt of materials by Buyer. No claims will be allowed for shrinkage, expansion, deformity, or rupture of material in treating or straightening, except by prior written agreement, as above, nor in any case for rupture caused by or occurring during subsequent grinding. Whenever Seller is given material with detailed instructions as to treatment, Seller’s responsibility shall end with the carrying out of those instructions. Failure by Buyer to indicate plainly and correctly the kind of material (i.e., proper alloy designation) to be treated shall cause an extra charge to be made to cover any additional expense incurred as a result thereof, but shall not change the limitation of liability stated above. Buyer agrees there will be no liability on the part of Seller in contract or tort (including negligence and strict liability action) for any special, indirect or consequential damages arising from any reason whatsoever, including but not limited to personal injury, property damages, loss of profits, loss of production, recall or any other losses, expenses or liabilities allegedly occasioned by the work performed by Seller. It shall be the duty of Buyer to inspect the merchandise immediately upon its return, and in any event claims must be reported prior to the time that any further processing, assembling or any other work is undertaken. SELLER’S LIABILITY TO BUYER SHALL CEASE ONCE ANY FURTHER PROCESSING, ASSEMBLING OR ANY OTHER WORK HAS BEEN UNDERTAKEN ON SAID MATERIAL.

These terms and conditions are subject to change from time to time, without notice, at Seller’s sole discretion. Revised August 2020.

ALL ORDERS ARE PLACED AND ALL PRODUCTS AND SERVICES ARE PURCHASED SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:

1. Prices and quantities shall be as specified in the purchase order form to which these terms and conditions are attached (collectively, the “Order”). If this Order is not accepted exactly as written, Seller shall advise Buyer immediately with a written explanation. This Order is not final until the terms and conditions as specified are agreed upon. Buyer shall have the right to cancel this Order and to stop any shipments prior to the transportation thereof by giving Seller notice of Buyer’s election to do so, and Buyer shall have no liability nor shall Seller have any recourse if Buyer exercises such right. This Order shall be subject to modification or cancellation by Buyer in the event of fire, accidents, strikes, government acts or other conditions beyond Buyer’s control.

2. This Order constitutes the entire agreement between the parties relating to the subject matter hereof and supersedes any and all prior and contemporaneous oral or written understandings between the parties regarding the subject matter hereof. Nothing in the attached purchase order form shall modify any of these terms and conditions unless specific reference is made to the term or condition which is to be changed. No verbal agreement or other understanding shall in any way modify this Order. No purported amendment, modification or waiver of any provision of this Order shall be binding unless set forth in a writing signed by both parties (in the case of amendments and modifications) or by the party to be charged thereby (in the case of waivers). Any waiver shall be limited to the circumstance or event specifically referenced in the written waiver document and shall not be deemed a waiver of any other term of this Order or of the same circumstance or event under any recurrence of such circumstance or event.

3. Seller shall have full and exclusive responsibility for the payment of (i) any and all contributions or taxes for unemployment insurance and/or pensions or annuities now or hereafter imposed by federal, state or local laws which are measured by the remuneration paid to persons employed on the work performed under this Order, and (ii) all federal, state or local contributions or taxes based upon materials, tools, equipment or other items acquired, performed, furnished or used in connection with services provided hereunder.

4. Seller shall send a separate invoice for each shipment against this Order. Each invoice must bear Buyer’s Order and requisition number, part number and amount of material shipped. All invoices are due and payable net sixty (60) days from the date the applicable goods are actually received and accepted at Buyer’s location.

5. Seller shall not ship goods prior to any specified delivery date, unless otherwise notified by Buyer. Seller shall transmit to Buyer via mail, fax and/or e-mail invoices, bills of lading, chemical and physical reports (if required) immediately after each shipment is made. No charges will be allowed for boxing or crating unless previously agreed in by Buyer writing. All containers, drums, carboys, etc. to be returned to Seller must be shipped on a no charge or consignment basis. Buyer will pay for only such containers as Buyer does not return within a reasonable time.

6. To the fullest extent permitted by applicable law, all lien rights of Seller, its Sellers and suppliers with respect to the services performed hereunder are hereby waived. When required by Buyer and as a prerequisite of payment, Seller shall provide, in a form satisfactory to Buyer, lien or claim waivers and affidavits from Seller, its subcontractors and suppliers for completed services.

7. Supplier must ensure that products are produced / manufactured / packaged / shipped in a manner that eliminates the presence of any dust, debris, or other foreign objects / material that may damage or put into question the conformity of the products.

8. All material will be received by Buyer subject to count, inspection and rejection (notwithstanding prior payment to obtain cash discount), and rejected material may be returned immediately at Seller’s expense plus all transportation charges paid by Buyer; replacement of materials will not be accepted unless such replacement has been authorized by Buyer. Buyer’s count or weight shall be final and conclusive on shipments not accompanied by a packing list.

9. Castings, forgings or other materials that show defects after machining operations have been performed will be rejected and returned at Seller’s expense for credit at the full invoice price, and Seller shall reimburse Buyer for any costs or expenses incurred in machining such defective parts and for any sums Buyer may be required to pay to any customer by reason of such defects.

10. Time is of the essence of this Order. If Seller’s deliveries fail to meet the schedule specified by Buyer, to the extent that Buyer is compelled to call upon Seller for express shipments, it is agreed that Seller shall allow the difference between the freight and express rate. In the event Seller is unable to make deliveries in time to meet Buyer’s requirements Buyer reserves the right to modify or cancel this Order with no charges to Buyer.

11. Seller warrants that the sale and use of the material covered by this Order (except when the material is of Buyer’s design), and the services provided hereunder, shall not infringe any inventions, copyrights, trade secrets or patents issued either in the United States or in foreign countries, and that Seller covenants to defend every suit which shall be brought against Buyer for any alleged infringement of any patent or other intellectual property rights by reason of the sale or use of said materials or the performance of said services, and to pay all expenses and fees of counsel which shall be incurred by Seller and Buyer in and about defending, and all costs, damages and profits recoverable in any such suit. Any part made according to Buyer’s own design shall not be furnished by Seller to any other person, firm or corporation.

12. Material will not be accepted unless tagged or marked with Buyer’s Order number, heat number (when required), job number and quantity, as embodied in this Order. Progress payments or final payment by Buyer shall not be deemed acceptance of improper, faulty or defective materials or services, shall not release Seller from any of its obligations under this Order, and shall not constitute a waiver of any rights or provisions hereof by Buyer. Services are not accepted by Buyer until all applicable drawings, manuals and reports have been received by Buyer and notice of acceptance has been given by Buyer. Beneficial use or occupancy shall not be deemed acceptance of services.

13. Seller warrants that all goods to be furnished and all work to be performed hereunder shall comply with all applicable federal, state and local laws, rules and regulations, including but not limited to the Occupational Safety and Health Act of 1970, as same may be amended from time to time, and regulations adopted pursuant thereto, and all other applicable laws, rules and regulations pertaining to health, safety and the environment. Seller agrees to indemnify and hold Buyer harmless from all liability resulting from failure of such compliance.

14. Seller shall not subcontract, assign or transfer, in whole or in part, by operation of law or otherwise, this Order, any of Seller’s duties or obligations hereunder, or any monies due or to become due hereunder, without the prior written consent of Buyer, which consent may be granted or withheld in Buyer’s sole discretion. In the event of an assignment with such consent, payment hereunder shall be subject to set-off or recoupment for any claims, whether or not matured, which Buyer may have against Seller.

15.   Seller expressly warrants that all material and work covered by this Order shall conform to the specifications, drawings, samples or other description furnished or specified by Buyer and shall be merchantable, of good material and workmanship and free from defect. Seller expressly warrants that all material covered by this Order which is the product of Seller or is in accordance with Seller’s specification shall be fit and sufficient for the purposes intended. Buyer and its authorized representatives shall have the right to inspect services and components at all times and places to verify compliance with this Order and standards of good workmanship.

16. (a)  The Supplier warrants that counterfeit supplies shall not be supplied to the Purchaser

or installed in the Purchaser’s products by the Supplier.

(b)  The Supplier warrants that only new, unused, authentic, genuine and legitimate items

shall form part of the Supplies supplied to the Purchaser.

(c) The Supplier may only purchase or source items directly from Original Component

Manufacturers (“OCM”), OCM authorized (e.g. franchised) distributors or aftermarket

Manufacturers. Use, purchase or the sourcing of items from non OCM authorized independent distributors or brokers is not permitted unless first approved in writing by the Purchaser. The Supplier must present compelling support for its request to use such non OCM authorized suppliers for the Purchaser’s approval (including but not limited to OCM documentation that authenticates supply chain traceability of the parts to the OCM) and include in its request all necessary actions it shall take to ensure those items thus procured are new, unused, authentic, genuine and legitimate items.

(d) The Supplier shall maintain a method of traceability that ensures tracking of the supply

chain back to the manufacturer of all items included in the Supplies being supplied or

installed. This traceability method shall clearly identify the name and location of all supply chain intermediaries from the manufacturer to the direct source of each item for the Supplier and shall include the manufacturer’s batch identification for the item such as but not limited to date codes, lot codes, serializations, or other batch identifications. Full supply chain traceability documentation includes but is not limited to OCM, Original Equipment Manufacturer (“OEM”) and authorized (e.g. franchised) Supplier certificates of conformity, purchase orders and test/inspection data and/or certificates. The Order shall specify any such additional documentation (other than as specified in this condition) required by the Purchaser.

(e) If Counterfeit Supplies or Suspect Counterfeit Supplies are supplied or furnished under the Order such Supplies shall be impounded. The Supplier shall promptly replace such Supplies with Supplies acceptable to the Purchaser and the Supplier shall be liable for all costs relating to impoundment, removal and replacement. If Supplier is unable to replace the counterfeit or suspected counterfeit supplies within a reasonable time, then Purchaser may,  at its sole discretion, cancel the Order or any portion thereof without penalty, or replace the Supplies at Supplier’s expense. The Purchaser may notify and turn Counterfeit Supplies over to the relevant local or international Government authorities for investigation and the Purchaser reserves the right to withhold payment pending the results of such investigations.

(f) This condition applies in addition to any quality provision, specification, statement of work or other provision included in the Order addressing the authenticity of Supplies. To the extent that such provisions conflict with this condition, this condition shall prevail.

(g) The Supplier shall flow down these requirements contained in this condition to the

Supplier’s supply chain for any items that are intended for supply to the Purchaser.

17. Buyer reserves the right to cancel all or any part of the undelivered portion of this Order at no cost to Buyer if Seller does not make deliveries as specified in the schedule, or if Seller breaches any of the terms hereof including (without limitation) the warranties of Seller. Buyer shall have no liability to Seller or any other party for incidental, consequential, special, exemplary, or other indirect damages of any sort, under any circumstances.

18. Buyer reserves the right at any time to make changes in drawings and specifications as to any material and/or work covered by this Order. Any difference in price or time for performance resulting from such changes shall be equitably adjusted and the contract shall be modified in writing accordingly.

19.  Any materials furnished by Buyer on other than a charge basis in connectionwith this Order shall be deemed as held by Seller upon consignment. All such materials not used in the manufacture of the products covered by this Order shall, as directed, be returned to Buyer at Buyer’s expense, and if not accounted for or so returned, shall be paid for by Seller. All such materials, including but not limited to tools, dies, gauges, jigs, fixtures, etc., owned by Buyer shall be fully insured by Seller against loss by fire or by causes covered under extended coverage insurance in Illinois, or by any other cause customarily insured against in the Chicago, Illinois area.

20. In the event the material to be purchased under this Order is for use by Buyer in connection with any contract or sub-contract with the United States of America, or any department, division or instrumentality thereof, Seller agrees as follows:

(a) Seller shall be bound by any and every law, statute, regulation, executive Order or administrative ruling applicable to suppliers of such materials or products as are supplied hereunder to contractors with, or subcontractors of any tier to contractors with, the United States, or any department, division or instrumentality thereof, as fully and to the same extent as though such law, statute, regulation, executive Order or administrative ruling were set out in full in this Order.

(b) Subparagraph (a) above shall include, among others and without limitation, laws, statutes, regulations, executive orders and administrative rulings dealing with or relating to discrimination by reason of race, color, creed or national origin, secrecy, employment of aliens, inspection and audit of books, retention of records, termination or cancellation of orders, payments in connection with termination or cancellation, price redetermination, price renegotiation and use of materials, supplies and products mined, produced or manufactured in the United States.

(c) This Order is expressly made subject to the terms of all contracts of Buyer of or for the United States Government or with any branch, department or agency thereof and Seller agrees that any change in such contracts which makes it advisable or necessary that work be discontinued on this Order shall give Buyer the right to revoke this Order by notice in writing to Seller. Seller is to receive, in such event, payments to the extent that Buyer is compensated therefor by its customers for material purchased and work in process and actual pending obligations.

21. The validity, performance and construction of the agreement and relationship between the parties shall be governed by the laws of the State of Illinois, notwithstanding any other laws which may apply under applicable conflicts of law rules, and all related disputes shall be resolved exclusively in the state or federal courts located in Cook County, Illinois, which courts shall have personal jurisdiction over the parties. The prevailing party in any action against the other party arising out of or in connection with this Order shall be entitled to recover all costs and expenses which it incurs in connection with such action, including without limitation reasonable attorneys’ fees, expenses and court costs.

22.Seller shall conduct a thorough background investigation of relevant criminal convictions, education and work experience with respect to all personnel prior to using such personnel for the performance of any services hereunder. All Seller personnel shall be subject to “post-accident” and/or “reasonable suspicion” controlled substances and alcohol testing while at the job site. Buyer shall have the right to require the immediate removal and permanent expulsion from the job site of any Seller personnel found to be under the influence of or in possession of alcohol or illegal drugs.

23.This Order shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. In the event that a court of competent jurisdiction holds a provision of this Order invalid, the remaining provisions shall nonetheless be enforceable in accordance with their terms. Further, in the event that any provision hereof is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law and shall be enforced as amended. No person not a party to this Order, including Seller’s employees and agents, shall have or acquire any rights by reason of this Order, nor shall any party to this Order have any obligations or liabilities to any such third party by reason of this Order.

24. All notices required or permitted to be given hereunder shall be in writing and shall be deemed to have been duly given (i) when received, if delivered by hand before 4:00 p.m. (receiver’s time) on a business day; or (ii) on the next business day after placement with a reputable overnight carrier for next morning delivery; or (iii) four (4) business days after deposit, if placed in the U.S. mail for delivery by first class mail, postage pre-paid, and addressed to the appropriate party at the address set forth on the first page hereof. If either party should change its address, such party shall give written notice to the other party of the new address in the manner set forth above, but any such notice shall not be effective until actually received by the addressee.

25. Seller is an independent contractor, and nothing herein shall be construed to create the relationship of employer and employee, principal and agent, joint venturers or partners between the parties. Seller understands and acknowledges that, as an independent contractor, none of its employees will be eligible for any paid vacation, paid holidays, sick pay, disability pay or any other benefits payable to employees of Buyer. Seller shall be solely responsible for (i) filing all tax returns and paying all taxes associated with payments received under this Order, and (ii) compliance with all applicable laws codes, ordinances, rules, regulations and requirements with respect to worker’s compensation, withholding taxes, unemployment compensation, social security payments, and any other charges against compensation imposed by any governmental authority as to Seller’s own employees. Seller is not authorized to enter into contracts on behalf of Buyer, and shall not attempt or purport to bind Buyer in any manner whatsoever.

26. Prior to starting performance of the services to be provide hereunder, and throughout the term of this Order, Seller shall procure, maintain and pay for such insurance that will protect against claims for bodily injury or death, or for damage to property, including loss of use thereof, which may arise out of any acts of, or services provided by, Seller, its employees or agents. Seller shall procure and maintain the following minimum insurance coverages and limits of liability: (i) Worker’s Compensation-Statutory Limits; (ii) Employer’s Liability-$1,000,000 each accident, $1,000,000 disease policy limit, $1,000,000 disease each employee; (iii) Commercial General Liability-$1,000,000 each occurrence, $2,000,000 aggregate (per project); (iv) Comprehensive Automobile Liability-$1,000,000 each accident; (v) Excess Liability-$1,000,000 each occurrence. Seller’s insurance policies shall be primary and shall contain a waiver of subrogation against Buyer and its insurers. Employer’s Liability, Commercial General Liability and Comprehensive Automobile Liability insurance coverage may be arranged under single policies for full minimum limits required, or by a combination of underlying policies with the balance provided by an Excess or Umbrella Liability policy. The general aggregate on the Commercial General Liability policy shall apply on a project specific basis. All insurance policies required hereunder shall contain a provision stating that the coverage and limits afforded thereunder shall not be canceled, materially changed or non-renewed, or restrictive modifications added, without thirty (30) days prior written notice to Buyer. Seller shall name Buyer as an additional insured on the foregoing insurance policies, and Certificates of Insurance and proof of additional insured status shall be provided to Buyer upon request. Renewal certificates shall be provided to Buyer not less than ten (10) days prior to the expiration date of any of the required policies.

227. Seller shall perform all services in a safe manner, and shall comply with all reasonable safety measures initiated by Buyer or required by this Order and with all applicable laws codes, ordinances, rules, regulations, requirements and orders of any public authority for the safety of persons or property, including such provisions as are stricter than the safety measures initiated by Buyer or required by this Order. Seller shall be solely responsible for the protection and safety of its employees, including employees of its subcontractors and suppliers of every tier, for final selection of safety methods, for required safety reports and records, for daily inspection of its work area and its employees’ safety equipment, for instruction of employees on health and safety and related equipment, including regular safety meetings. Notwithstanding anything to the contrary in this Order, if Buyer determines, in its sole discretion, that any individual rendering any part of the services is not complying with applicable safety measures or is putting him/herself or anyone else at risk, or may otherwise damage the property or reputation of Buyer, Buyer shall have the right (but not the obligation) to take any action necessary to cause that individual to immediately leave the premises where the services are being performed.

228. Seller, at its expense, shall obtain and comply with all permits and licenses necessary to complete the services in accordance with this Order. Seller shall perform the services and shall acquire, perform, furnish and use all labor, services, materials, tools, equipment and other items hereunder in compliance with all applicable federal, state, municipal and local laws, codes, ordinances, rules, regulations and requirements, including without limitation those relating to health, safety and the environment, discrimination in employment, fair employment practices and equal employment opportunity, and shall correct, at its expense, any violations thereof resulting from or associated with performance of the services. Seller shall furnish such proof as Buyer may request demonstrating such compliance and correction of any such violations.

29. Seller shall (i) conform to the highest standard of performance in the industry and business ethics in performing its obligations hereunder; (ii) perform the services in a diligent, efficient and skillful manner; (iii) promptly secure all labor, services, materials, tools, equipment and other items required in connection with the services to be furnished in order to avoid delays; (iv) promptly pay for all labor, services, materials, tools, equipment and other items acquired, performed, furnished or used in performance of the services as bills or claims therefor become due; (v) promptly clean up and remove all debris resulting from or associated with its operations; and (vi) be solely responsible for loss or damage to materials, tools, equipment or other personal property used by Seller in performance of the services.

30.        (a)        This clause shall be flowed down to subordinate sellers at all tiers. Buyer conducts its business fairly, impartially and in an ethical and proper manner. Seller shall conduct its business in a similarly fair, impartial, ethical and proper manner. In doing so, Seller shall adhere to Buyer’s code of ethics. Use of the Seller’s standards of business ethics and conduct shall be approved in writing by the Buyer.

(b)      Seller shall implement an awareness program to ensure its employees understand their contribution to product/service conformity, product safety and the importance of ethical behavior.

31.       Seller and its supplier(s) shall establish and maintain a quality management system in accordance with current industry standards (e.g. ISO 9001, AS9100, AS9120) for all products or services provided to aerospace and defense industry customers.

32. Seller shall indemnify and hold Buyer, its affiliates, subsidiaries, officers, directors, members, shareholders, employees, agents, representatives, successors and assigns (collectively, the “Indemnitees”) harmless from and against any and all claims, demands, proceedings, damages, liabilities, costs, charges and expenses (including reasonable legal fees and costs) whatsoever incurred by or asserted against any of them arising out of, related to, or as a consequence of (i) any act or omission, including but not limited to negligence or willful misconduct, of Seller or any of its employees, agents or subcontractors; (ii) any act or omission of Seller or any of its employees, agents or subcontractors which violates this Order or any applicable law, code, ordinance, rule, regulation or requirement; (iii) any claim or demand arising from the employment or engagement by Seller of any person or entity; or (iv) any actual or claimed trademark, patent or copyright infringement or other violation of intellectual property rights, and any litigation based thereon, arising in connection with the performance of the services.

33. Seller warrants that the services furnished under this Order shall be (i) provided in conformance

with all specifications and other descriptions and requirements set forth in this Order; (ii) performed in accordance with standards of care, skill and diligence consistent with recognized and sound industry practices, procedures and techniques; (iii) delivered to Buyer free from faulty design (to the extent of Seller’s design responsibilities); (iv) constructed utilizing new materials and equipment (if furnished by Seller) free from faults and defects and of sufficient size, capability and materials to meet in all respects the requirements and operating conditions specified in this Order or in the applicable Order; (v) suitable for the use intended; (vi) in conformance with applicable laws, regulations and codes; and (vii) conveyed with free and clear title. Seller further warrants that nothing in the services furnished under this Order shall adversely impact or impair the performance specifications and warranties for any Buyer equipment or components that are or have been furnished by others.

34. As used herein the term “Cure” means Seller’s obligation and actions to repair, replace or otherwise correct any failure to meet a warranty obligation or to repair, replace or otherwise correct any defect, deficiency or nonconformance with the conditions and standards prescribed in this Order. If any failure to meet the warranties or performance guarantees specified in this Order occurs or is discovered during the performance of the services or within twelve (12) months after acceptance of the services by Buyer (or such longer period of time as may be stated elsewhere in this Order), Seller shall immediately Cure all materials, equipment or services (including payment for labor associated with such Cure inclusive of disassembly, removal, replacement and reinstallation charges) affected by such failure at Seller’s sole cost and expense. Seller shall reimburse Buyer for costs directly incurred by Buyer as a result of reliance by Buyer on services that fails to meet such warranties. Services so Cured shall be warranted for an additional period of twelve (12) months (or such longer period of time as may be stated elsewhere in this Order) following completion of the Cure. Notwithstanding the above, there shall be no time limitation on Seller’s warranty of free and clear title.

35. Neither payment, nor any other provision of this Order, nor partial or entire use or possession of Seller’s work shall relieve Seller of liability with respect to the warranties contained in this Order. The warranties and remedies provided herein shall be in addition to all warranties and remedies provided by law. Buyer shall give notice to Seller of any failure of the services or nonconformance with the warranties or performance guarantees discovered by Buyer. All warranty work shall be performed on a schedule established by Buyer. Seller shall be granted access to Seller’s work to perform Cure and shall be solely responsible for disassembly, removal, replacement and reinstallation of all ductwork, structures, electrical work, instrumentation, insulation or any equipment or any obstruction, all at Seller’s expense. Upon completion of Cure, all such work shall be returned or restored to its proper and original condition, including but not limited to fit, alignment, adjustment, operability and finish. Seller shall provide labor for Cure on a straight time and overtime basis, at its expense, as necessary to meet Buyer’s schedule. Whenever Cure is required, Seller shall bear the risk of loss or damage for services requiring Cure during the period of such Cure. If any work performed by Seller must be removed from the jobsite, transportation charges associated with any Cure shall be borne by Seller. Seller shall revise any and all drawings, as appropriate, to reflect any changes or modifications made during Cure. If Seller fails or refuses to initiate Cure of nonconforming services within a reasonable period not to exceed ten (10) calendar days after notice of non-conformance and (ii) complete Cure, utilizing its best efforts, within a reasonable period of time not to exceed thirty (30) calendar days (or such longer period as Buyer may authorize in writing), Buyer may effect such Cure without impairing the warranties stated herein, and charge the cost incurred by Buyer to Seller. In addition, if Seller fails to furnish timely disposition instructions, Buyer may dispose of non-conforming work in a reasonable manner, in which case Buyer shall be entitled to reimbursement from Seller for reasonable expenses as well as for any excess cost incurred in the disposition of said work. 

36. Seller shall obtain, for the benefit of Buyer, all available warranties of suppliers and subcontractors for all materials and equipment manufactured or furnished or services performed by them to the extent such warranties exceed the requirements of the warranties set forth in this section. To the extent such warranties are in written form, originals identifying Buyer as the warranty beneficiary shall be furnished to Buyer. Seller’s warranties shall be primary to any such additional warranties. Seller further warrants that written instructions regarding use of Seller’s work shall conform to accepted engineering and operating practices as of the time such instructions are prepared. If any non-conformance to this warranty occurs or is discovered, Seller shall furnish, at no cost to Buyer, corrected instructions.

37. Final payment to Seller for services under this Order shall be made after satisfactory completion of the services, provided that: (i) Seller has furnished evidence satisfactory to Buyer that there are no claims, obligations or liens for labor, services, materials, tools, equipment, taxes or other items acquired, performed, furnished, used or incurred in connection with the services, and (ii) Seller has executed and delivered in a form satisfactory to Buyer a general release in favor of Buyer. Seller shall furnish such additional documentation and other information as Buyer may require to confirm Seller’s entitlement to payment, and Buyer may make such field checks as it considers necessary to verify that the services have been executed in accordance with this Order. Final payment under this Order shall constitute a waiver of any past, present and future claims by Seller against Buyer for payment for products and services provided under this Order.

These terms and conditions are subject to change from time to time, without notice, at Seller’s sole discretion. Revised August 2020.