1. Agreement; Acceptance; Modification: These Purchase Order Terms and Conditions (these “Terms”) and the purchase order, proposal or other purchase document to which these Terms are attached (the “Purchase Order,” and together with these Terms, this “Agreement”), together with any terms, drawings, specifications, or other documents specified or incorporated by reference in the Purchase Order, constitute the final, complete and entire understanding and agreement between A. Stucki Company, a Delaware corporation, or (if applicable) the subsidiary thereof set forth in the Purchase Order (such party, “Buyer”), and the other party named in the Purchase Order (“Seller”) (each of Buyer and Seller, a “Party,” and together, the “Parties”) with respect to the subject matter of the Purchase Order and the products and services of Seller specified in the Purchase Order (as applicable, the “Products” and the “Services”). If the Parties have entered into a separate mutually-executed purchase agreement pertaining to the Products or Services that are the subject of the Purchase Order, the terms and conditions of that agreement shall take precedence over these Terms to (and only to) the extent of any conflicting provisions. These Terms may not be modified except in a writing signed by both Parties. No prior oral agreement or communications, or any prior written communications (other than a mutually-executed agreement as discussed above) will in any way modify this Agreement, and Buyer expressly rejects all conflicting or additional terms contained in any such agreement or communications. If the Purchase Order is deemed an offer to purchase by Buyer, these Terms expressly limit Seller’s acceptance to these Terms by execution and return of the acknowledgment copy of the Purchase Order, or by any other conduct consistent with acceptance, including, but not limited to, performance. If the Purchase Order is deemed an acceptance by Buyer, its acceptance is limited to these Terms, and no conduct by Buyer will be deemed to change these Terms.

2. Changes: Buyer may make changes at any time in drawings, designs, specifications, materials, quantities, packaging, time and place of delivery or performance, and method of transportation, and an equitable adjustment to purchase price or delivery date will be made if such changes cause an increase or decrease in cost or time required for performance. Seller must notify Buyer of any changes to manufacturing processes or inputs for Products manufactured to Buyer’s specifications, as these may be subject to first article or other approvals from Buyer.

3. Inspection/Testing: Buyer or its designated representative may enter Seller’s facility, during Seller’s normal business hours, upon reasonable prior notice, to inspect Buyer’s materials, progress of work-in-process, final Product, or any other matter related to Seller’s performance of this Agreement. Buyer may remove its raw materials, work-in-process, parts and components to which Buyer has title whenever, in Buyer’s judgment, Seller cannot or will not fulfill this Agreement or any other accepted order of Buyer. Buyer has the right (but not the obligation) to inspect all Products delivered and Services performed. Buyer may reject any or all Products and Services that are defective or otherwise non-conforming. If Buyer rejects any portion of the Products or Services, Buyer shall have the right, effective upon written notice to Seller, to: (a) terminate this Agreement in its entirety; (b) accept the Products or Services at a reasonably reduced price; or (c) require replacement/reperformance of the rejected Products or Services. Payment will not constitute acceptance of Products or Services. At Buyer’s option, Buyer may return quantities of Products delivered by Seller in excess of the quantities ordered by Buyer, as well as Products rejected due to defect or other non-conformity, request replacement Products, and charge Seller for costs and expenses related to inspecting and reshipping rejected or excess Products. Nothing in this Agreement will relieve Seller from obligations of testing, inspection, and quality control.

4. Warranty: Seller warrants to Buyer (and its successors, assigns, customers and end-users of Products) that: (a) all Products and Services will conform in all material respects to applicable descriptions, specifications, drawings and approved samples (if any), and the requirements of Permits and Laws (each as defined in Section 19 hereof); (b) all Services will be performed in a competent, diligent and timely manner in accordance with any specifications; and (c) all Products will be free from defects in design, material and workmanship for a period of two (2) years from the date of delivery or any longer warranty period customarily offered by Seller. The foregoing warranties are cumulative and in addition to any other warranties provided by Laws or equity. Seller’s warranties shall not be avoided or diminished by inspections, tests or acceptance by Buyer. Seller’s obligations for breach of warranty include re-performance of Services and complete replacement or repair of Products, including, but not limited to, associated disassembly, installation, shipping, and other costs and expenses. If Seller’s remedy fails of its essential purpose, any limitation of Seller’s liability for damages will be void. Buyer reserves the right to re-work or replace defective Products and Services and to charge Seller for the cost of such re-work or replacement.

5. Title; Risk of Loss; Shipment; Delivery; Packaging: Unless otherwise expressly specified in the Purchase Order, Seller shall deliver Products to Buyer DDP (Incoterms 2020) the destination (whether of Buyer, its customer or a third party facility) specified in the Purchase Order. Title and risk of loss shall pass to Buyer upon such delivery. All Products shall be delivered free and clear of liens and encumbrances. Unless otherwise expressly specified in the Purchase Order, Seller shall arrange carriage (by method of transport, and with a carrier, approved by Buyer), fully insured (unless otherwise agreed by Buyer), and carriage and insurance charges shall be pre-paid by Seller, charged to Buyer (without mark-up), and specified on the applicable invoice as express line items. Time is of the essence for performance of this Agreement. All delivery dates are firm, and failure to deliver when specified, except as otherwise agreed in writing by Buyer, will constitute a breach of this Agreement, and in such event, Buyer may terminate this Agreement immediately by written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses, directly attributable to Seller’s failure to deliver on a timely basis. Unless otherwise agreed, deliveries more than seven (7) days before specified delivery dates may be rejected and/or associated costs will be assessed for Seller’s account. All Products shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Products are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material, and any return of such packaging material shall be made at Seller’s expense.

6. Force Majeure: A Party will not be liable for delays in performance due to causes beyond its reasonable control, including, but not limited to, government action or failure to act, strike or other labor trouble, accident, fire, pandemic, act of God or unusually severe weather; provided, however, that such Party must notify the other Party in writing within five (5) days of commencement of any such delay and keep it reasonably informed of the circumstances and status of delay.
Prices; Sales Taxes; Invoices; Payments: Prices specified in the Purchase Order are firm, and no adjustments will be made (except pursuant to Sections 2, 3 or 8 hereof), including for currency fluctuations. Seller shall be solely responsible for, and shall duly and timely remit to applicable taxing authorities, any and all sales, service, ad valorem and similar taxes and charges payable with respect to its provision of the Products and performance of the Services. Any such taxes and charges for which Buyer is responsible under applicable Laws shall be added to Seller’s invoices as express line items. Itemized invoices showing the order number, accompanied by a manifest and bill of lading, must be sent to Buyer at time of shipment. Seller’s and Buyer’s names must appear on all packages. Packing slips must accompany each shipment. Invoices for progress payments (if any) must be accompanied by dated photographs or other evidence of production or performance milestones met to support the invoice. Buyer shall pay each duly-delivered invoice within the number of days after receipt of such invoice specified in the Purchase Order, or in the absence thereof, Buyer shall pay 2%/10 net 60 days.
Termination: Buyer may terminate all or part of this Agreement for its sole convenience or for cause (i.e., any breach, anticipatory breach or default by Seller). Upon receipt of a termination notice, Seller shall stop, and cause its applicable suppliers and subcontractors to stop, all work on the applicable Products or Services under this Agreement. Buyer will pay Seller only for work satisfactorily performed prior to termination, and Seller will deliver all materials, work-in-process, parts and components to Buyer. Buyer will not pay for (a) any lost or anticipated profits associated with the work so terminated, (b) any work by Seller after delivery of notice of termination (unless Buyer has requested completion of work), or (c) any costs incurred by Seller’s suppliers or subcontractors that could reasonably have been avoided.

7. Prices; Sales Taxes; Invoices; Payments:  Prices specified in the Purchase Order are firm, and no adjustments will be made (except pursuant to Sections 2, 3 or 8 hereof), including for currency fluctuations.  Seller shall be solely responsible for, and shall duly and timely remit to applicable taxing authorities, any and all sales, service, ad valorem and similar taxes and charges payable with respect to its provision of the Products and performance of the Services.  Any such taxes and charges for which Buyer is responsible under applicable Laws shall be added to Seller’s invoices as express line items.  Itemized invoices showing the order number, accompanied by a manifest and bill of lading, must be sent to Buyer at time of shipment.  Seller’s and Buyer’s names must appear on all packages.  Packing slips must accompany each shipment.  Invoices for progress payments (if any) must be accompanied by dated photographs or other evidence of production or performance milestones met to support the invoice.  Buyer shall pay each duly-delivered invoice within the number of days after receipt of such invoice specified in the Purchase Order, or in the absence thereof, Buyer shall pay 2%/10 net 60 days.

8. Termination:  Buyer may terminate all or part of this Agreement for its sole convenience or for cause (i.e., any breach, anticipatory breach or default by Seller).  Upon receipt of a termination notice, Seller shall stop, and cause its applicable suppliers and subcontractors to stop, all work on the applicable Products or Services under this Agreement.  Buyer will pay Seller only for work satisfactorily performed prior to termination, and Seller will deliver all materials, work-in-process, parts and components to Buyer.  Buyer will not pay for (a) any lost or anticipated profits associated with the work so terminated, (b) any work by Seller after delivery of notice of termination (unless Buyer has requested completion of work), or (c) any costs incurred by Seller’s suppliers or subcontractors that could reasonably have been avoided.

9. Limitation of Liability: Buyer shall not be liable under or in connection with this Agreement for any special, indirect, consequential or incidental damages, including, without limitation, lost profits, revenue or overhead, whether arising under contract, warranty, tort, negligence, strict liability or any other theory of liability, irrespective of the circumstances and regardless of whether notified of the possibility thereof.

10. Tools, Dies, Etc.: All tools, dies, patterns, molds, templates, or other equipment or material provided or paid for by Buyer (“Buyer’s Goods”) will be marked as Buyer’s property, are subject to return or destruction upon Buyer’s demand, and may be used only to fill Buyer’s orders. Seller authorizes Buyer to file UCC financing statements evidencing Buyer’s interests in Buyer’s Goods. Seller will not assert any right, title or interest in Buyer’s Goods or use Buyer’s Goods as collateral to secure financing.

11. Governing Law; Venue for Disputes: This Agreement and the rights and duties of the Parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania (U.S.A.) without regard to its conflict of laws provisions. The United Nations Convention on the International Sale of Goods expressly shall not apply in any manner to this Agreement or the performance of the Parties hereunder. Any and all legal actions with respect to this Agreement and the performance of the Parties hereunder shall be brought exclusively in the Court of Common Pleas of Allegheny County or the U.S. District Court for the Western District of Pennsylvania, and each Party hereby irrevocably consents to the foregoing venues in any such action.

12. Patents and Copyrights: Seller agrees to defend, indemnify, and hold harmless Buyer and its customers and end-users of Products and Services from all damages, claims, liabilities, losses, costs and expenses (including reasonable attorney fees) for patent, trademark, copyright or trade secret infringement arising out of or resulting from use of the Products provided or Services performed under this Agreement, except to the extent based on Buyer’s designs or specifications.
Safety Data Sheets: As to any Product to be provided under this Agreement that constitutes or contains a hazardous chemical and thus requires a Safety Data Sheet (SDS) under applicable Law, Seller agrees to furnish a complete and accurate SDS for such Product prior to delivery, and to indemnify Buyer for any damages or fines resulting from Seller’s failure to provide such SDS.

13. Indemnity and Insurance: Seller agrees to indemnify, defend and hold Buyer harmless from and against any and all losses, damages, claims, liabilities, injuries, fines, penalties, costs and/or expenses (including reasonable attorney’s fees) related in any way to any (a) alleged defect or other non-conformity in the Products or Services, (b) negligent or intentional act or omission of Seller in its performance hereunder, or (c) breach of this Agreement by Seller. Seller agrees to reimburse Buyer for all costs and attorney’s fees incurred by Buyer to enforce these Terms. The foregoing obligations are in addition to Seller’s warranty obligations and any other rights or remedies available to Buyer under applicable Law. Seller will also maintain and carry, at its own expense, insurance in types and amounts and with insurers reasonably acceptable to Buyer.

14. Assignments and Subcontracting: No part of this Agreement or Seller’s performance hereunder may be assigned or subcontracted by Seller without the written consent of Buyer, which consent shall not be unreasonably withheld. Any attempted assignment or subcontract in contravention hereof shall be null and void.

15. Setoff: Buyer may, in addition to any other rights or remedies, deduct or setoff from any amounts due to Seller under this Agreement or any other order, the price, cost of unpacking, examining, repacking, and reshipping any rejected Products, or any amounts due or to become due from Seller to Buyer or any of Buyer’s subsidiaries or affiliates.

17. Waiver: Buyer’s failure to insist on performance of any of these Terms or to exercise any right or privilege under this Agreement, or Buyer’s waiver of any breach, will not be deemed a waiver of any subsequent performance, right, privilege or breach.

18. Other Rights Reserved: All duties and obligations of Seller under this Agreement, and all rights and remedies of Buyer under this Agreement, in each case including for Seller’s breach of warranty or other provisions of this Agreement, are without limitation of Buyer’s other rights and remedies under this Agreement or under applicable Laws, all of which are hereby reserved.

19. Compliance with Permits and Laws: Seller shall procure, hold and comply with any and all applicable permits, licenses and certifications of any governmental authority or trade association (“Permits”) that are required for Seller’s performance under this Agreement and shall deliver copies of any such Permits to Buyer upon request. Seller shall comply with all applicable federal, state and local laws, rules and regulations (“Laws”) relating to this Agreement or Seller’s performance hereunder, including but not limited to, tax, safety, environmental, and employment Laws. At Buyer’s request, Seller will provide information and/or certifications regarding Seller’s and its suppliers’ use (or non-use) of conflict minerals in Products provided under this Agreement (Section 1502 of Dodd-Frank Wall Street Reform and Consumer Protection Act). Seller and its employees and subcontractors will not engage with any “anti-social forces” (such as organized crime, hate groups, gangs, terrorists, etc.) which pose a threat to the order and safety of civil society, and Seller agrees that such anti-social activity will be cause for immediate termination of this Agreement.

20. Export/Import: Seller will comply with all applicable export/import Laws and supply Harmonized Tariff Schedule (HTS) Codes and Export Control Classification Numbers (ECCNs) for each Product being purchased hereunder, along with such additional information as is necessary for Buyer to either determine the applicable HTS Codes and ECCNs or confirm the accuracy of the supplied HTS Codes and ECCNs. Products delivered hereunder shall also be marked in English with the country of origin in accordance with U.S. Customs marking requirements. Seller will supply and certify country of origin in the format specified by Buyer to comply with applicable Laws, including preferential certificates of origin, duty draw back documentation and/or manufacturer’s affidavit as requested. It is the responsibility of Seller to monitor information related to Country of Origin, HTS and ECCN and immediately notify Buyer in writing of any changes.

21. Proprietary Information; Confidentiality; Advertising: All nonpublic information (including, but not limited to, drawings and specifications) furnished by Buyer to Seller in connection with this Agreement is confidential and/or proprietary information of Buyer, may not be disclosed by Seller to any person or used for any purpose other than performing this Agreement without Buyer’s written permission, and must be returned or destroyed upon Buyer’s demand. Seller agrees not to furnish Products made to Buyer’s specifications to any other party. Seller may not advertise or publish this Agreement or the relationship of the Parties hereunder without Buyer’s written consent.