Terms

GROTE STANDARD TERMS AND CONDITIONS

This order by Grote Industries, LLC is subject to the following terms and conditions. Grote Industries, LLC is hereinafter referred to as “Buyer,” the company from which goods and/or services are ordered is hereinafter referred to as “Vendor,” and the goods or services listed on this order are hereinafter referred to as the “goods.”

1.

These terms and conditions are the complete and exclusive statement of the terms and condition of any purchase of good from Vendor to Buyer. Upon Vendor’s acceptance of the order by Vendor’s acknowledge hereof, the commencement by Vendor of any work of the performance of any service required under the order, including, but not limited to, the shipment of any conforming or conforming goods, whichever occurs first, Vendor shall be deemed to have agreed to all the terms and conditions contained herein.

BUYER SPECIFICALLY OBJECTS TO THE INCLUSION OF, AND BUYER REJECTS ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS PROPOSED BY THE VENDOR IN ACKNOWLEDGING OR ACCEPTING THIS ORDER. SUCH PROPOSALS BY VENDOR MATERIALLY ALTER THIS ORDER BUT SHALL NOT OPERATE AS A REJECTION OF THIS ORDER UNLESS SUCH VARIANCES ARE IN THE DESCRIPTION, QUANTITY, PRICE OR DELIVERY SCHEDULE OF THE GOODS AND THIS ORDER SHALL DE BEAMED ACCEPTED BY VENDOR WITHOUT SUCH DIFFERENT OR ADDITIONAL TERMS . THE TERMS HEREIN SHALL CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AND CONDITIONS OF THE CONTRACT BETWEEN BUYER AND VENDOR WHICH MAY HEREAFTER BE MODIFIED ONLY BY WRITTEN INSTRUMENT EXECUTED BY THE AUTHORIZED REPRESENTATIVE OF BOTH PARTIES.

2. PRICES -

Price is firm. Cash discount periods shall be calculated from the later of the date of receipt of Vendor’s correct invoice or the date of receipt of goods by Buyer. Buyer shall receive the benefit of any general reduction in Vendor’s prices prior to delivery and in no event shall Buyer be charged a price higher that that charged to Vendor’s other customers for goods of like grade and quality and in substantially the same quantities. No increase in the purchase price, whether for extra work or otherwise, shall be effective unless authorized in writing signed by Buyer.

Buyer shall pay sales or use tax, if any is due, in the State of Indiana. Vendor agrees to pay and bear any other federal, state, local or foreign taxes or other governmental charges upon the production, transportation or sale of the goods supplied hereunder.

3. DELIVERY -

Time is of the essence and Vendor is notified that failure to perform in a timely manner will result is substantial damage to Buyer. Unless otherwise specified by this order, all goods purchased hereunder, must be tendered in a single delivery and not in lots from time to time. If delivery is not made as specified in this order, in addition to its other rights and remedies, Buyer may terminate the contract as to all or any portion of the goods ordered, purchase substitute goods elsewhere and charge Vendor with any loss incurred. Vendor further agrees to indemnify Buyer for any loss, damage or penalty resulting from Vendor’s failure to make delivery as specified, including any incidental and consequential damages. If Vendor fails to meet Buyer’s time schedule, Vendor, upon Buyer’s request, will make express shipments at Vendor’s expense.

4. SHIPMENT -

Unless specified on the face of this order or otherwise authorized in writing by Buyer, all shipments are F.O.B. Buyer’s plant and shall be made at Vendor’s own expense and risk. Vendor will not reserve a security interest in any goods shipped. Vendor will follow Buyer’s instructions as to mode and routing of shipments. In addition to Buyer’s other rights and remedies, Buyer may rejects goods shipped contrary to instruction or not in recognized standard containers. Unless otherwise shown on the front side of this order, no charge will be allowed for packing, boxing, freight, express or cartage.

5. INSPECTION/TESTING/REJECTION -

Payment for the goods delivered hereunder shall not constitute acceptance thereof. Buyer shall have the rights to inspect such goods and to reject any all goods which are in Buyer’s judgment defective. Goods so rejected and goods supplied in excess of quantities called for herein may be returned to Vendor at it expense and, in addition to Buyer’s other rights, Buyer may charge Vendor all expenses of unpacking, examining, repackaging and reshipping such goods. In addition, at Buyer’s option, Vendor will promptly correct or replace the rejected goods at Vendor’s expense, including transportation costs, but no goods returned as defective will be replaced without Buyer’s written authorization. In the event Buyer receives goods whose defects or nonconformity is not apparent on examination, Buyer reserves the right to require replacement as well as payment of damages. Acceptance of any goods under this order shall not bind Buyer to accept future goods nor deprive Buyer of the right to return goods already accepted.

6. RISK OF LOSS -

The risk of loss of the goods will not pass to Buyer until delivery of the goods at Buyer’s plant and acceptance of the goods by Buyer.

7. WARRANTY -

Vendor expressly warrants that the goods covered by this order are fit for the purpose for which such goods are normally used, are merchantable, are free of defects, whether patent or latent in material and workmanship, and are in full conformity with the specifications, drawings or samples, if any included in this order. Vendor warrants that it has good title to the goods supplied, that the goods are free and clear from liens and encumbrances, that that goods will conform to any statements made in the containers, labels or advertisements for such goods and that the goods will be adequately contained, packaged, marked and labeled. If Vendor knows or has reason to know the particular purpose for which Buyer intends to use the goods, Vendor warrants that such goods will be fit for such particular purpose. Vendor agrees that these warranties shall survive Buyer’s acceptance of the goods. Acceptance of this order shall constitute an agreement upon Vendor’s part to indemnify and hold Buyer harmless from all liability, loss, damage and expenses, including incidental and consequential damages and reasonable counsel fees, incurred or sustained by Buyer by reason of the failure of the goods to conform to such warranties. Vendor, if requested to do so, shall promptly repair or replace at destination and at its sole expense, any goods, materials and work furnished hereunder which do not comply with the warranties. THE WARRANTIES AND REMEDIES CONTAINED IN THIS PARAGRAPH ARE IN ADDITION TO THE WARRANTIES AND REMEDIES PROVIDED BY LAW INCLUDING, WITHOUT LIMITATION, THE UNIFORM COMMERCIAL CODE. Buyer’s inspection and/or acceptance of and/or payment for goods shall not constitute a waiver by it of any warranties. Buyer’s approval of any sample or acceptance of any goods shall not relieve Vendor from responsibility to deliver goods and to perform services conforming to Buyer’s specification, drawings, and Description.

8. COMPLIANCE WITH LAWS -

Vendor warrants and represents that the goods covered by this order have been or will be manufactured, fabricated, distributed, shipped, packaged, delivered and/or performed in accordance with the requirements of the Fair Labor Standards Act, the Occupational Safety and Health Act of 1970, and all other applicable federal, state and municipal laws, rules and regulations, including, but not limited to, those in force at the point of manufacture and the point of destination of the goods.

Vendor shall comply with all federal, state and local Right-to-Know laws then applicable. Vendor further warrants that each and every chemical substance constituting or contained in the goods sold or otherwise transferred to Buyer under this order is in compliance with all applicable federal, state and local environmental laws and that the goods are properly labeled to identify all such chemical substances.

9. HOLD HARMLESS -

Vendor agrees to indemnify and hold buyer harmless, assume legal liability for and, at Vendor’s option defend Buyer, it agents, employees, officers and directors form an claim or action by any third person arising out of or alleged to arise out of the delivery of the goods or the performance of services purchased with this order, or from the use of the goods by Buyer or third person. Any costs, settlement, judgement or other expense that Buyer, its agents, employees, officers or directors may pay, or become obligated to pay in connection with any such claim or action will be reimbursed by Vendor. This indemnification shall be in addition to the warranty obligations of Vendor.

If Vendor’s work under the contract involves operation by its employees on the premise of Buyer or on of Buyer’s customers, Vendor will indemnify Buyer from all loss or damage arising out of such work, and will maintain adequate public liability, property damage and employee liability and compensation insurance, and furnish evidence of such insurance at Buyer’s request.

Vendor further agrees to defend at its own expense, all suits and claims against Buyer or its customer for any alleged violation for infringement of any patent, trademark, copyright or any other proprietary or intellectual property right in any way accruing from the purchase and/or use or resale of the goods covered by this order. Buyer may, at its option and at Vendor’s expense, be represented by and actively participate through its own counsel in any such suit or proceeding. Vendor agrees to indemnify and hold Buyer and its customers harmless from loss, damage, or expense of any kind whatsoever including costs and attorney’s fee arising from such alleged violation or infringement.

10. CHANGES -

Buyer shall have the right at any time to make changes to drawings, designs, specifications, materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost or the time required for performance hereunder, an equitable adjustment shall be made and this agreement shall be modified in writing accordingly. Vendor agrees to accept any changes made according to this paragraph.

11. FORCE MAJEURE -

Any cause beyond the control of the Buyer, including but not limited to sabotage, fire, floods, strike, riot, labor disputes, insurrection, war, act of government authority, priorities granted at the request of or the benefit, directly, or indirectly of any government or agency thereof, act of God, breakdown of machinery or equipment, or inability to obtain material, labor, equipment or transportation which results in Buyer’s failure to perform in accordance with the terms hereof shall not give rise to any liability on the part of Buyer for damages on account of such delay or nonperformance. Vendor shall hold the goods subject to this order at the direction of Buyer and shall deliver them when the cause of the delay has been removed.

12. VENDOR NOTICE OF DELAYED OR IMPAIRED PERFORMANCE -

Whenever an actual or potential events such as labor dispute, act of God, change in Vendor’s business, material shortage, or any other event will or threatens to delay or impair Vendors performance under this order, Vendor will immediately give written notice thereof to Buyer including all relevant information with respect thereto. The giving of such notice will not relieve Vendor of any of its obligation under this order.

13. LIMITATION OF VENDOR'S REMEDIES -

Vendor will not be entitled to recover any incidental or consequential damages upon any breach by Buyer under or related to this order.

14. CONFINDENTIALITY -

All specifications, documents, and prototype articles delivered by Buyer to Vendor are the property of Buyer. They are delivered solely for the purpose of Vendor’s performance of this order and on the 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 express written consent of Buyer. Such specifications, documents and articles are to be returned to be returned to Buyer promptly upon its written request. Such request may be made at any time during or after completion of Vendor’s performance. No news releases, advertisement, public announcement, denial or confirmation of same, of any kind regarding any part of the subject of this contract shall be made without the prior written approval of Buyer. The obligations under this clause will survive the cancellation, termination or completion of this order.

15. TERMINATION -

Buyer reserves the right to terminate this order or any part hereof for its sole convenience. In the event of such termination, Vendor shall immediately stop all work hereunder, and shall immediately cause any of its suppliers of subcontractors to cease such work. Vendor shall be paid a reasonable termination charge consisting of a percentage of the order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Vendor shall not be paid for any work done after receipt of the notice of termination nor for any cost incurred by Vendors suppliers or subcontractors which Vendor could reasonably have avoided.

Buyer may also terminate this order, or any part thereof, for cause in the event of any default by Vendor or if Vendor fails to comply with any of the terms and conditions of this order. Late deliveries, deliveries of goods which are defective or which do not conform to this order, and failure to provide Buyer, upon request, of reasonable assurances of future performance shall be caused allowing Buyer to terminate this order for cause. In the event of termination for cause, Buyer shall not be liable to Vendor for any amount and the Vendor shall be liable to Buyer for any and all damages sustained by reason of the default which gave rise to the termination.

16. WAIVER -

No waiver, discharge or renunciation of any claim or right of Buyer arising out of breach of these terms and conditions by Vendor will be effective unless in writing signed by Buyer and supported by consideration. Any waiver by Buyer of any breach by Vendor will be a waiver of the breach only and not of any other prior or subsequent breach.

17. ASSIGNMENT -

No right or interest in this order shall be assigned, nor any obligations delegated, by Vendor without Buyer’s prior written consent

18. SETOFF -

Payment for the goods will be subject to setoff or recoupment for any present or future claims which Buyer or any of its affiliated companies may have against Vendor.

19. SEVERABILITY -

In the event that any words, phrase, clause, sentence, or other provision hereof shall violate any applicable statute, ordinance, or rule of law in any jurisdiction in which it is used, such provision shall be ineffective to the extent is such violation with invalidating any other provision hereof.

20. APPLICABLE LAW -

This contract and the obligations arising hereunder shall be governed by and construed according to the laws of the State of Indiana.

21.

All shipments must be guaranteed to meet all Canada customs requirements

Rev. G August, 2009
Printed Copy Uncontrolled

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