BROOK AND WHITTLE LIMITED

STANDARD TERMS AND CONDITIONS OF PURCHASE

These terms and conditions of purchase ("Agreement") are applicable to any order placed by Brook and Whittle Limited and its affiliated companies ("buyer") and accepted by supplier (referred to herein as "Seller"):

  1. AGREEMENT: Seller, upon acceptance of an order placed by Buyer, will supply the products and services specified in the order to Buyer, pursuant to the terms and conditions of this Agreement and its exhibits. Seller's acceptance of such order submitted by Buyer is expressly limited to the terms and conditions of this Agreement. By shipping goods or invoicing after receipt of a Purchase Order, Seller shall conclusively be bound by these terms and conditions. All Goods shall be received subject to Buyer's inspection and acceptance or rejection after receipt at Buyer's premises and subject to all of Buyer's rights and remedies under this Purchase Order or under law. No changes are to be made by Seller in materials, method of manufacture, terms, conditions, prices or deliveries without the written consent of Buyer.
  2. PRESENCE ON BUYER'S PREMISES: if Seller's performance hereunder requires the presence of Seller, its agents, employees or subcontractors upon the premises of Buyer, Seller agrees that all work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of the Buyer. Seller shall comply with the Federal Occupation Safety and Health Act, the Fair Labor Standards Act, as amended, and all regulations issued thereunder and otherwise shall take all necessary precautions to prevent the occurrence of any injury to person or damage to real or personal property (both tangible and intangible) during the progress to such work.
  3. TERMINATION: Buyer reserves the right, without liability to Seller, to cancel, in part, or terminate this Purchase Order in the event that Seller Fails or is unable to comply with any of the terms and conditions hereof. Such cancellation or termination shall not constitute a waiver of any other right or remedy Buyer may have against Seller. In addition, Buyer shall, at its option and in its sole discretion, have the right to terminate this Purchase Order or any part thereof for convenience at any time by notice in writing to Seller. Buyers liability for uncompleted Purchase Orders is limited to any costs and expenses incurred, however, this shall not exceed the amount necessary to perform the uncompleted portion of this
  4. FREIGHT: Unless a carrier has been specified on the Buyer's purchase order, Seller will select a carrier for the Buyer, with the express understanding that the carrier is not an agent of Seller. Orders may be shipped in one (1) or more installment(s), which the Buyer agrees to accept and be invoiced for, unless the Buyer has provided Seller with prior, written notification that partial shipments will not be accepted. All products will be packed by Seller in accordance with standard commercial practices. Unless otherwise specified, the price quoted is for a single shipment, without storage, F.O.B. Seller's plant. Proposals are based on continuous and uninterrupted delivery of complete order, unless specifications distinctly state otherwise. Charges related to delivery from Buyer to Seller, or from Buyer's supplier to Seller, are not included in any quotations unless specified. Special priority pickup (including air freight) or delivery service will be provided at current rates upon Buyer's request
  5. SHIPPING TERMS: Unless agreed to separately, all products will be shipped FOB Buyer's Plant. Risk of loss and/or damage and title to the products will transfer to the Buyer on delivery to the plant.
  6. FREIGHT: Unless a carrier or specific shipping method has been specified on the Buyer's purchase order, Seller will select a carrier for the Buyer, with the express understanding that the carrier is not an agent of Seller. All products will be packed by Seller in accordance with standard commercial practices. Unless otherwise specified, the price quoted is for a single shipment, F.O.B. Buyer's plant. Special priority pickup (including air freight) or delivery service will be provided at current rates upon Buyer's request.
  7. PAYMENT TERMS: Prices reflected in the Purchase Order are complete, and no additional charges of any type shall be added without Buy's express consent. A complete packing list must accompany each shipment. The time period for payment shall commence upon receipt of Seller's invoice or upon receipt of the Goods or Services, whichever is later. Any invoice subject to a cash discount shall be mailed by Seller on the date it is dated. Unless otherwise agreed to in writing, in no event shall Buyer's payment terms be less favorable than "2%-30, net 90 days."
  8. NONDISCLOSURE OF PURCHASES: Without the prior written consent of Buyer, Seller may not disclose in any advertisement or promotional materials or in any other manner that Buyer has purchased Goods and Services from Seller.
  9. TAXES AND PERMITS: Unless otherwise agreed to in writing, Seller agrees to pay and comply with all federal, state and local contributions, taxes, duties or premiums arising out of the performance of this Purchase Order, and all sales, use or other duties or taxes of whatever nature levied or assessed against Buyer or Seller arising out of this Purchase Order, including any interest or penalties. Any tax, tariff or duty which is imposed upon Seller by any governmental authority and included by the Seller in the price shall be separately stated on Seller's invoice(s). In addition to any other indemnity requirements in this Agreement, Seller shall indemnify, defend and hold Buyer harmless from any claims or losses related to Seller's breach of the obligations in this section. Seller shall obtain and pay for all permits, licenses, fees and certificates of inspection necessary for the prosecution and completion of Seller's work hereunder.
  10. WARRANTY: Seller warrants that the goods and services sold hereunder will conform to the description on the face hereof, will be free and clear of all liens, encumbrances and security interests, free of defects in material and workmanship, and will be of Seller's standard quality. This warranty is expressly in lieu of any other warranties, express or implied, including any warranty of merchant ability or fitness for a particular purpose. The goods furnished hereunder do not infringe any patent, design, copyright, trademark or other intellectual property rights with respect to their use, sale, distribution, ownership or otherwise.
  11. INSPECTION: Buyer shall have the right to inspect and test the goods or services ordered at any time, including during the manufacture and construction, or preparation, notwithstanding any prior payment or inspection. Defective goods or services not in compliance with Buyer's drawings, specifications or standards may at any time be rejected even though such goods or services may have previously been inspected and accepted. Without limiting any rights it may have, Buyer at its sole option may require Seller, at Seller's expense to: (i) promptly repair or replace any or all rejected goods and/or services or (ii) refund the fees paid for any or all rejected goods and/or services. All such rejected goods will be held for Seller's prompt instruction and at Seller's risk. Rejected goods will be transported for return to Seller or destroyed at Seller's cost. Nothing contained herein shall relieve in any way Seller from the obligation of testing, inspection, and quality control. Payment for goods or services prior to inspection shall not constitute acceptance thereof and is without prejudice to any and all claims Buyer may have against Seller or any other party.
  12. BUYER'S PROPERTY: Seller will maintain fire, extended coverage, vandalism, malicious and sprinkler leakage insurance on all property belonging to the Buyer while such property is in Seller's possession. Seller's liability for such property shall not exceed the amount recoverable from such insurance.
  13. CONFIDENTIAL INFORMATION: Buyer's confidential and proprietary information includes, without limitation, its business plans; business strategies; marketing plans; industry and competitive information; technology, product and proposed product information; pricing and cost arrangements and agreements with Buyer, distributors, customers, suppliers, licensers and licensees; information relating to its customer base; information concerning employees and financial information. All such confidential and proprietary information shall (a) remain the property of Buyer, (b) be carefully preserved and maintained by Seller at its expense, and (c) be promptly returned to Buyer or satisfactorily accounted for upon completion of this Purchase Order or upon Buyer's written demand.
  14. PROPRIETARY MATERIALS: Unless otherwise agreed in writing, any confidential or proprietary information, designs, artwork, blueprints, drawings, specifications, special dies, molds, patterns, fixtures and any other property furnished or paid for by Buyer for use in the performance hereunder: (a) shall be and remain the property of Buyer; (b) shall not be reproduced, used for the benefit of or disclosed by Seller to others without Buyer's prior written consent; (c) shall be subject to removal upon Buyer's instructions; (d) shall be used only in filling orders from Buyer; (e) shall be held at Seller's risk; and (f) shall be kept insured by Seller at Seller's expense while in its custody or control in an amount equal to the replacement cost thereof with loss payable to Buyer. Certificates of such insurance will be furnished to Buyer on demand. Upon completion of the Purchase Order or its termination, any such proprietary or confidential materials shall be delivered to Buyer unless Seller is advised to the contrary in writing.
  15. ASSIGNMENT: Except as otherwise provided, the order and this Agreement shall be binding upon and inure to the benefit of the parties' successors and lawful assigns.
  16. STATUS: Buyer and Supplier are separate entities. Nothing in the order or this Agreement shall be construed as creating an employer-employee or joint venture relationship.
  17. INDEMNITY DEFENSE: To the fullest extent permitted by law, Seller shall save and hold Buyer, its directors, officers, employees, agents and representatives harmless, protect, and indemnify such parties against all losses, claims, actions, causes of action, threats, costs, expenses, demands, and damages of third parties, arising out of or relating to (a) Seller's misrepresentation or breach of any obligation, covenant, or warranty in connection with the Purchase Order; (b) Seller's violation of any Laws, including without limitation any Laws regarding disposal of materials and wastes used or generated by Seller; (c) any subcontracting arrangements; (d) any third party claim against Buyer for amounts owed by Seller or for which Seller is otherwise responsible; (e) SELLER'S ACTIONS OR OMISSIONS RESULTING IN PERSONAL INJURY, DEATH OR PROPERTY DAMAGE, REGARDLESS OF ANY CLAIM OR FINDING THAT IN INDEMNITEE IS PARTIALLY AT FAULT. Seller shall also defend at its expense (including attorney fees and other litigation costs) the Buyer Indemnities from any demands, claims, threats, or causes of action arising out of or related to Seller's performance or actions.
  18. COMPLIANCE WITH LAW: Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
  19. RESOLUTION OF DISPUTES: These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of Connecticut.
  20. FORCE MAJEURE: Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, pandemics, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party's commercially reasonable control.
  21. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND VENDOR'S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND THE ORDER SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.