PERFORMANX SPECIALTY CHEMICALS – PURCHASE ORDER TERMS AND CONDITIONS

This purchase order (the “Order”) is an offer by the company identified on the face of this purchase order (the “Buyer”) for the purchase of the goods (“Goods”) or services (“Services”) specified, from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”).  This Order will be deemed accepted by Seller upon the first of the following to occur: (a) Seller making, signing, or delivering to Buyer any letter, form, or other writing or instrument acknowledging acceptance; (b) any performance by Seller under the Order; or (c) the passage of ten (10) days after Seller’s receipt of the Order without written notice to Buyer that Seller does not accept.  This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order, unless a separate overriding written contract has been entered into and signed by the parties. This Order expressly limits Seller’s acceptance to the Terms of the Order. These Terms expressly exclude any of Seller’s terms and conditions of sale or any other document issued by Seller in connection with this Order.

  1. PRICING; PAYMENT. The price of the Goods or Services is the price stated on the face of this Order. Seller shall invoice Buyer for the Order within thirty (30) days of delivery. Buyer shall pay all properly invoiced amounts due to Seller within sixty (60) days after receipt of such invoice, except for any amounts disputed by Buyer.  The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.  Without prejudice to any other right or remedy, Buyer reserves the right to set off any amount owing to it by Seller against any amount payable by Buyer to Seller. Payment of an invoice is not evidence or admission that the Goods or Services meet the requirements of the Order.
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  3. TRANSPORTATION; DELIVERY. Seller shall deliver the Goods and/or perform the Services at the delivery point, and on the date(s) specified in this Order. Delivery dates are firm and TIME IS OF THE ESSENCE WITH RESPECT TO DELIVERY.  If Seller fails to deliver the Goods or Services in full, on the specified delivery date, Buyer may terminate the Order immediately and Seller shall indemnify Buyer against any losses, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver.
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  5. INSPECTION. Buyer may inspect and test all Goods. Buyer, at its sole option, may reject all or any portion of the Goods if it determines the Goods are defective or nonconforming. If Buyer requires replacement of the Goods, pursuant to Section 4, Seller shall promptly replace the nonconforming Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 19. Any inspection or other action by Buyer under this Section shall not affect Seller’s obligations under the Order, and Buyer shall have the right to further inspection after Seller takes remedial action.
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  7. WARRANTIES. In addition to any warranty implied by fact or law Seller warrants to Buyer that: (a) for a period of eighteen (18) months from the delivery date, all Goods: (i) be new and free from any defects in workmanship, material and design; (ii) conform to applicable specifications; (iii) be fit for their intended purpose and operate as intended; (iv) be free and clear of all liens, security interests or other encumbrances; and (v) not infringe or misappropriate any third party’s intellectual property rights; and (b) Services will be performed in accordance with the standards of care and diligence normally practiced by persons performing similar services and in the best workmanlike manner.  Notwithstanding the foregoing, where a latent defect is discovered, the warranties will be in effect for a period of twelve (12) months from the earlier of the date of discovery by Buyer of a latent defect in Goods or Services or the date such latent defect should reasonably have been discovered by Buyer with the exercise of reasonable diligence.  These warranties survive any delivery, inspection, acceptance or payment. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance. If Buyer gives Seller notice of noncompliance, in addition to the other remedies available to Buyer, Seller shall, at its own cost and expense, promptly replace or repair the nonconforming Goods or Services.
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  9. QUANTITY TERMINATION; ORDER CHANGES. (a) Buyer may, by written notice to Seller, terminate its purchase of any quantity of Goods or Services (i) for convenience, (ii) if Seller fails to complete or deliver any part thereof when required, and/or (iii) if Seller is in breach of any term of the Order.  If terminating for convenience, Buyer will pay Seller termination charges equal to the cost of materials and labor incurred on ordered Goods or Services prior to the date of Buyer’s termination notice; provided Seller takes all steps reasonably necessary to mitigate such costs.  Seller will notify Buyer, in writing, specifying the actual termination charges within thirty (30) days after termination.  If termination is due to a failure of completion of delivery or breach of any material term of the Order, no termination charges will apply and Buyer may procure substitute products or Services and Seller will be liable to Buyer for all costs incurred by Buyer as a result of such failure or breach.
    (b) Prior to shipment or completion, Buyer may request changes with respect to the Goods or Services to be provided, including, but not limited to, changes in method of shipping or packing, time or place of delivery and increases in delivered quantity.  Seller will promptly notify Buyer of any resulting increase or decrease in cost and Buyer and Seller will agree on any price adjustment before implementing any such change, unless Buyer, at its sole option, chooses to withdraw its request for any such change.

 

  1. COMPLIANCE WITH LAWS. Seller will comply with all applicable laws, rules, regulations and orders in performing its obligations under the Order, including, but not limited to, environmental, health and safety laws and regulations, immigration laws and those dealing with equal employment opportunity.

 

  1. CONFIDENTIAL INFORMATION; OWNERSHIP OF DOCUMENTS AND MATERIALS. (a) All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) rightfully and legally known to Seller at the time of disclosure; or (c) rightfully and legally obtained by Seller on a non-confidential basis from a third party.
    (b) All drawings, models, specifications and other documents and materials prepared by Seller specifically in connection with the Goods or Services will become Buyer’s property and be delivered to Buyer, as part of the consideration for the Order, upon (i) completion, abandonment or postponement of the Services or delivery of the Goods required by the Order, or (ii) termination of the Order.  Seller hereby assigns any and all rights that it has in and to all such drawings, models, specifications, documents and materials to Buyer.

    (c) Any proprietary rights in any drawings, models, specifications and other documents and materials provided to Seller by Buyer in connection with the Order shall at all times and for all purposes vest and remain vested in Buyer.

 

  1. INTELLECTUAL PROPERTY INFRINGEMENT. Seller represents, warrants, certifies and covenants that the sale or use of the Goods or Services provided to Buyer will not infringe or contribute to the infringement of any patents, trademarks, or copyrights anywhere in the world. If any product, service or part thereof is held to constitute an infringement, Seller will, at its expense, obtain for Buyer a license to use the product, service or part thereof or replace or modify the same, in a manner satisfactory to Buyer, so as to avoid the infringement.  Seller shall not assert any of its patents or other intellectual property rights against Buyer or Buyer’s affiliates, subsidiaries or customers worldwide in connection with any use of Goods, Services or parts thereof provided to Buyer in the production, use, preparation, sale, or delivery of, or other action with respect to, the Goods or Services of Buyer or Buyer’s affiliates, subsidiaries or customers.
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  3. CHANGES. Seller will not change the manufacturing process, raw materials or the source of such raw materials, proportions of raw materials used in Goods delivered to Buyer, or the product specifications unless Seller notifies Buyer in writing of the change at least ninety (90) days before its implementation and Buyer agrees to the change in writing. Seller will be liable for all costs, losses and damages that Buyer may incur or suffer if Seller does not comply with the requirements of the preceding sentence.  At Buyer’s request, Seller will provide samples of product produced with the proposed change to test in Buyer’s manufacturing process.
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  5. INSURANCE. Seller shall maintain in full force and effect from the date of first sale of Goods and for three (3) years following the date of Buyer’s last acceptance of Goods or Services, the following minimum insurance coverages: (i) Commercial General Liability insurance on an “occurrence” basis including coverage for premises, contractual, products and completed operations liability with a combined single limit of $2,000,000 for bodily injury and property damages; and (ii) Umbrella insurance with a limit of $5,000,000 that follows form over the Commercial General Liability policy. The policies shall provide a worldwide coverage territory, respond to claims made anywhere in the world, and shall name Buyer as an “additional insured” on a primary and non-contributory basis. All required insurance must be with companies licensed in the jurisdiction in which the Goods are sold or services are rendered, and be acceptable to Buyer. No insurance will be deemed to be in effect until satisfactory certificates thereof are delivered to Buyer, containing provisions requiring the insurance carrier to notify Buyer at least thirty (30) days prior to any expiration or termination of, or material change to, the policy.
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  7. LIENS. Upon Seller receipt of amounts properly invoiced, Seller waives and releases all rights to, for itself and its subcontractors, and at its sole cost shall obtain prompt removal of any lien fixed against Buyer, for Goods or Services and Seller will fully defend, indemnify, hold harmless and reimburse Buyer with respect thereto.
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  9. INDEMNIFICATION. Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s parent company, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders, and employees against any and all loss, injury, death, damage, liability, claim, action, judgment, interest, penalty, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder arising out of or occurring in connection with Seller’s performance of its obligations or Seller’s negligence, willful misconduct or breach of the Terms of this Order or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
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  11. FORCE MAJEURE. (a) Any non-performance or delay in performance of any obligation of Seller or Buyer under the Order will be excused to the extent such failure or non-performance is caused by “Force Majeure.”  “Force Majeure” means any cause preventing performance of an obligation under the Order which is beyond the reasonable control of Seller or Buyer, and which, by the exercise of due diligence, could not be overcome, including without limitation, fire, flood, sabotage, shipwreck, embargo, explosion, strike or other labor trouble, accident, riot, acts of a governmental authority, and acts of God.  In no event shall Seller’s ability to sell the Goods or Services at a better price or Seller’s economic hardship in buying raw materials necessary to manufacture Goods at a commercially reasonable price constitute Force Majeure or an event of commercial impracticality.
    (b) If Buyer or Seller is affected by Force Majeure, it will (i) promptly provide written notice to the other party, explaining the full particulars and the expected duration of the Force Majeure and (ii) use its commercially reasonable efforts to remedy the interruption or delay.  In the event of Force Majeure, notwithstanding any other provision of the Order, Buyer will have the right to purchase goods and services from other sources during the period of Force Majeure.  If a Force Majeure extends for more than thirty (30) days, the Order may be terminated by Buyer upon written notice without any liability on its part.

    (c) If a Force Majeure compels Seller to allocate deliveries of Goods or Services, Seller will make such allocation in a manner that ensures Buyer at least the same proportion of Seller’s total output as was purchased by Buyer prior to the Force Majeure.  Seller will use best efforts to source Goods or other items, at Seller’s expense, from its own or its affiliates’ and/or subsidiaries’ global operations or the market in order to meet Buyer’s required delivery dates.

 

  1. TERMINATION. Each party reserves the right to terminate this Order and all of its obligations and liabilities hereunder by written notice to the other party if the other party breaches any of the Terms and fails to cure the same to the terminating party’s reasonable satisfaction within thirty (30) days of the date of the terminating party’s written notice specifying the nature of such breach. After receipt of a notice of termination, Seller shall immediately: (i) stop work as directed in the notice; (ii) place no further subcontracts or purchase orders for materials, services or facilities, except as necessary to complete the continued portion of the Order, if any; and (iii) terminate all subcontracts to the extent that they relate to the work terminated.
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  3. RELATIONSHIP OF THE PARTIES. Seller is an independent contractor of Buyer. Nothing contained herein shall be construed as creating any agency, partnership, employment or fiduciary relationship. Neither party shall have authority to bind the other party in any manner whatsoever.
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  5. GOVERNING LAW AND VENUE. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Ohio, excluding its choice or conflict of law rules.  Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the State of Ohio and the courts of appeal from them.
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  7. MISCELLANEOUS. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment shall relieve the Seller of any of its obligations hereunder. No modification, alteration or amendment of the Order shall be binding unless agreed to in writing and signed by Buyer.  If any term or provision of this Order is found invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this Order or invalidate or render unenforceable such term in any other jurisdiction.  No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order by Buyer shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or privilege hereunder preclude any other exercise of any additional right, remedy, or privilege.

 

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