Supplier Terms and Conditions


United States

A. ACCEPTANCE:

  1. The order is an offer by the EJ Group entity named, where such entity may be EJ USA, Inc., EJ Group, Inc., EJ Americas, LLC, or Ardmore Foundry, Inc. on any order ("Buyer"), to purchase goods and/or services from Seller. Buyer's placement of the order with Seller is expressly conditioned upon Seller's acceptance of all of the terms and conditions of purchase contained herein.
  2. In these Terms of Purchase, "Seller" means the seller named in the order, "goods" and "services" mean the goods or services that Buyer is to purchase from Seller, as described in the order, "Contract" means any contract formed pursuant to the order, and "order" means any Buyer purchase order sent to or received by Seller.
  3. The Contract includes the terms of any written agreement between Buyer and Seller in which they have agreed that these Terms of Purchase will apply to Buyer's purchases from Seller. If for any reason, however, no such agreement applies to Buyer's purchase from Seller under the order, then (1) the order is an offer to buy by Buyer, and Buyer rejects any earlier offers to sell made by Seller, (2) if the order nevertheless is in legal effect an acceptance of an earlier offer by Seller, then Buyer's acceptance is conditional upon Seller's assent to all of these Terms of Purchase that are additional to or different from the terms of Seller's offer, and (3) by signing and returning a copy of the order or by accepting the order electronically or by shipping the goods or performing the services, Seller accepts, and agrees and assents to, all of these Terms of Purchase. Notwithstanding the foregoing, if both Buyer and Seller have signed a separate contract that specifies the terms that will apply to Seller's sales to Buyer, and Buyer's purchases from Seller, of the goods and/or the services ("Special Contract") and if there is ever a direct conflict between a provision of the Special Contract and these Terms of Purchase, then the provision of the Special Contract shall control.
  4. Any additional or different terms or conditions which may appear in any communication from Seller are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing by Buyer's Purchasing Department, and no such additional or different terms or conditions in any printed form of Seller shall become part of the Contract despite Buyer's acceptance of goods or services, unless such acceptance specifically recognizes and assents to their inclusions.
  5. Any objection by Seller these Terms of Purchase shall be ineffective unless Buyer is advised in writing thereof within 10 days of the order.

B. IDENTIFICATION: All invoices, packages, shipping notices, instruction manuals and other written documents affecting the order shall contain the applicable purchase order number. Packing lists shall be enclosed in each box or package shipped pursuant to the order, indicating the contents therein. Invoices will not be processed for payment until all items invoices are received.

C. SHIPPING INSTRUCTIONS: All goods are to be shipped freight prepaid, F.O.B. destination, unless otherwise stated on the order. Where Buyer has so authorized in writing, goods may be shipped F.O.B. shipping point, but Seller shall prepay all shipping charges, including any insurance charges, route the goods by (i) the lowest cost common carrier, (ii) as set forth on the order, or (iii) the carrier specified by Buyer, and list said charges as a separate item on Seller's invoice. Buyer reserves the right to reject C.O.D. shipments.

D. SPECIAL CHARGES: Seller shall be responsible for the payment of all charges for handling, packaging, wrapping, bags, containers and related matters unless Buyer has assumed an express obligation therefore by notation on the order.

E. DELIVERY: Time is of the essence, and the order or the Contract may be terminated if delivery is not made or services are not performed by the date specified on the order. No changes in the scheduled delivery date or performance will be permitted without Buyer's prior written consent. No acceptance of goods or services after the scheduled delivery date will waive Buyer's rights with respect to such late delivery nor shall it be deemed a waiver of future compliance with the terms hereof. If Seller delivers more goods than Buyer ordered, then, unless Buyer agrees otherwise in writing, Buyer shall not have to pay for the excess. Unless Buyer agrees otherwise in writing or otherwise set forth in the order, Seller shall deliver all of the goods in a single delivery and not in installments. Buyer's acceptance of a delivery that contains less than the required quantity shall not relieve Seller of its obligation to deliver the balance of the ordered goods at the price and on the other terms that the order specifies. If Seller delivers the goods before the scheduled delivery date, then Buyer may, at Seller's expense and risk, either store them or return them to Seller. Buyer's acceptance of an early delivery shall not change the payment terms.

F. PAYMENT: Buyer will remit payment to Seller by mail or by any other means Seller requests. Seller agrees not to deliver goods on a sight draft basis. Payment of a purchase price does not constitute acceptance of the goods. If Buyer pays any part of the purchase price of the goods before Seller delivers them to Buyer, then (1) title (but not risk of loss) to each item of the goods shall pass to Buyer upon identification of the item to the Contract, (2) to the extent necessary to protect Buyer's title to the goods, Seller grants Buyer a security interest in the goods to secure Seller's obligation to deliver them to Buyer and all of Seller's other present and future obligations to Buyer, and (3) Seller shall obtain from each person that holds a security interest in or lien upon the goods a written agreement releasing that security interest or lien or subordinating it to Buyer's interest in the goods.

G. PRICES: If a price is not stated on the order, it is agreed that the goods or services shall be billed at the price last quoted, or paid by the customer of Seller, or the prevailing market price, whichever is lower. Except as otherwise set forth herein, Seller is responsible for all transportation costs (including, without limitation, packaging, loading, unloading and insurance costs), duties, taxes, charges and fees related to any goods and such costs are included in the purchase price on the order.

H. CASH DISCOUNT: If Buyer is entitled to a cash discount, the period of computation thereof will commence on the date of acceptance or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date on which an agreed adjustment of price is reached. If a cash discount is made part of the contract, but the invoice does not reflect the existence thereof, Buyer is entitled to a cash discount with the period commencing on the date Buyer determines that a cash discount applies.

I. TAXES: Seller shall pay all taxes that may arise out of its sale of the goods and services to Buyer. Buyer agrees to pay Michigan States Sales or Use taxes or to provide an exemption certificate.

J. ASSIGNMENT: Seller shall not assign the Contract or the right to payment due hereunder, without Buyer's prior written consent.

K. LIENS, CLAIMS, AND ENCUMBRANCES: Seller warrants and represents that all the goods will, when delivered hereunder, be free and clear of all liens, claims or encumbrances of any kind. Except as permitted by law, no mechanics' or other lien, or notice creating such lien, or claim or action thereon shall be filed or recorded by Seller or any agent or subcontractor of seller, for services performed to the extend Buyer has paid Seller. Where applicable, Seller and any agent or subcontractor will deliver to Buyer contemporaneously with any payment or application for payment, recordable unconditional waivers of lien for any payments previously received, and a recordable, statutory unconditional full waiver of lien for the final payment. If any lien is filed or recorded in violation of this Paragraph K, Seller will remove the lien, at its expense, within 10 business days of the filing or recording of the lien.

L. REJECTION: All goods purchased hereunder are subject to Buyer's inspection and approval. Goods rejected by Buyer for whatever reason shall be held, transported and/or stored at Seller's sole expense. Seller shall promptly reimburse Buyer for any such expenses.

M. DEFAULT: Buyer may, subject to the provisions of Paragraph N, by written notice of default to Seller, cancel the whole or any part of the order or the Contract or exercise any other remedy provided Buyers of goods by law or in equity including any remedy under the Uniform Commercial Code, in any of the following circumstances:

  1. If Seller fails to make delivery of the goods or to perform the services within the time specified herein or any extension thereof;
  2. If, in Buyer's good faith judgment, Seller fails to perform any of the other provisions of the Contract or fails to make progress as to endanger performance of the order or the Contract in accordance with its terms and does not cure such failure within a period of ten days, or such longer period as Buyer may authorize in writing, after receipt of notice from Buyer specifying such failure.
  3. Seller is in breach of any of the terms or conditions of the Contract; or
  4. If Seller becomes insolvent or makes an assignment for the benefit of creditors, or if there shall be instituted by or against Seller any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of Seller's property and such proceeding is not dismissed or cured within 60 days.

N. REMEDIES: Not by way of limitation, the remedies of the parties include:

  1. Without limiting other rights and remedies available to it, Buyer may, at its option, (1) return nonconforming goods to Seller, at Seller's risk and expense, and require Seller either to give Buyer full credit against the price or promptly to repair or replace the goods at Seller's risk and expense, (2) retain nonconforming goods and set off losses against any amount that Buyer owes Seller or (3) repair or replace nonconforming goods and charge Seller with the expense. If at any time (a) Seller defaults in the performance of any of Seller's obligations to Buyer under the Contract or under any other agreement between Seller and Buyer, (b) Seller repudiates the Contract, or (c) a warranty or representation that Seller made to Buyer in or in connection with the Contract is false or misleading in a material respect, then Buyer may terminate the Contract, in whole or part, without liability to Seller, and Seller shall promptly pay to Buyer all damages that Buyer incurred as a result of the termination and as a result of the event or circumstance on the basis of which Buyer terminated. In addition, Buyer may procure upon such terms and in such manner as Buyer may deem appropriate goods or services similar to those cancelled and Seller shall be liable to Buyer for any excess costs for such similar supplies or services, provided that Seller shall continue the performance of the Contract to the extent not cancelled under the provisions of the order.
  2. If Buyer does terminate the Contract, then Seller, if and to the extent that Buyer demands, shall immediately deliver to Buyer all finished and unfinished goods and all work-in-process and raw materials that Seller acquired for use in the manufacture or processing of the goods and all designs, drawings, specifications and software that Buyer is purchasing from Seller under the Contract, including all work-in-process, all source, object and pseudo codes, all preexisting programs intended to be incorporated in the software and all intellectual property rights in the foregoing. Buyer's payment of part or all of the purchase price shall not be a precondition to Seller's obligation to make the delivery. After Seller has made the delivery and Buyer has determined its damages (including, without limitation, any cost of "cover" or of completing the manufacture or processing of the goods), then Buyer will pay to Seller any excess of (1) any unpaid part of the purchase price properly allocable to any conforming goods, work-in-process and raw materials that Seller delivered to Buyer over (2) Buyer's damages.
  3. The rights and remedies of Buyer provided in this clause shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Contract.
  4. The failure of Buyer to insist upon strict performance of any terms of the Contract to exercise any rights hereunder shall not be construed as a waiver of Buyer's rights.
  5. Seller may be excused from performance under the order or the Contract upon the occurrence of any of the below-mentioned events provided Seller notifies Buyer within 10 days of discovery of any of the below-mentioned events:
    1. Events beyond the control of Seller which give rise to the excused party's failure to perform, including, without limitation, acts of God, public enemy, Buyer, or a government with lawful jurisdiction over Buyer in either its sovereign or contractual capacity, or fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather.
    2. Default of a supplier or subcontractor, if such default gives rise to Seller's failure to perform and arises out of causes beyond the control of both Seller and the supplier or subcontractor, without the fault or negligence of either of them, and Seller makes a concerted effort to obtain replacement supplies or services in time to meet the requirements of the order.
  6. Credits and/or adjustments not received within 60 days following the return of material or verbal agreement will be deducted from the next available invoice or billed to the shipper at the agreed amount including any shipping and handling charges. Alternatively, Buyer may set off any amounts owed to Seller against any present or futures claims which Buyer may have against Seller.
  7. Seller's remedies for any alleged breach by Buyer are limited to those provided by the Uniform Commercial Code. Seller shall not be entitled to recover any incidental or consequential damages, as those terms are defined in the Uniform Commercial Code.
  8. If a material part of Buyer's business in which the goods and/or services are to be employed is shut down, permanently or temporarily, because of anything Buyer cannot reasonably control (such as cancellation of a key contract, casualty or labor trouble), Buyer may cancel the order without liability except as to conforming goods delivered to Buyer or conforming services performed for Buyer before Buyer cancels.
  9. Buyer's termination under this Paragraph N shall terminate only Seller's obligation and right to deliver goods or provide services other than as this Paragraph N requires and shall not terminate or impair Seller's other obligations, or any of Buyer's rights, under the Contract. In addition to Buyer's rights described in these Terms of Purchase, Buyer has all of the other rights and remedies that the law gives to buyers, including the right to recover incidental and consequential damages that result from Seller's breach. Buyer shall not lose a right just because it does not exercise it. Buyer shall have the full statutory period of limitations to bring an action that arises out of Buyer's agreement with Seller. The parties agree that a reasonable time for Buyer to notify Seller of a breach is not less than two years from when Buyer discovers the breach.

O. WARRANTIES: Seller warrants goods supplied and work or services performed under the order conform to specifications in the Contract and are MERCHANTABLE and fit for the particular purposes for which Buyer intends the goods and for which goods are ordinarily employed.

  1. Seller further warrants to Buyer and to any third party ultimately using an item whether such third party is a customer of Buyer or not, that all items delivered under the order (a) the goods shall be new, (b) the goods and services shall be of good material, workmanship and quality, and free from faults and defects, (c) the goods and services shall conform to any samples, drawings, specifications, performance criteria standards or other requirements that are referred to in the order or that Buyer has otherwise specified or agreed to in writing, (d) the prices of the goods and services and any discounts, advertising allowances or other merchandising payments or services that the Contract requires Seller to provide to Buyer are as favorable to Buyer as the lowest prices and the highest discounts, advertising allowances or other merchandising payments or services that Seller provides to other buyers of comparable goods or services, (e) Seller shall promptly furnish to Buyer all information and copies of documents (including, but not limited to, complaints, inquiries, test or inspection results and warnings) that Seller receives from an end-user of the goods, a government agency, an employee or agent of Seller or any other person or source and that suggests or indicates that the goods may not conform to the requirements of this Paragraph O, and (f) Seller has and follows, and will continue to have and follow, adequate quality and security procedures that will assure that the goods and services will comply with the foregoing warranties, representations and agreements. If Buyer requests it, Seller shall give Buyer certificates of compliance with applicable laws and regulations. Buyer's approval of a sample, drawing, specification or standard shall not relieve Seller of any of its obligations or warranties under this Paragraph O, including, without limitation, its warranties of merchantability, fitness for a particular purpose, and compliance with laws.
  2. Seller shall be liable for all damages both to Buyer and its customers incurred as a result of any defect or breach of warranty in any goods covered by the order. At Buyer's option, Seller shall promptly correct any defect identified by Buyer, at Seller's expense.
  3. The foregoing express warranties shall not be limited and shall be in addition to any warranty customarily made by Seller of its products and any implied warranties and shall be construed as conditions as well as warranties.
  4. SELLER'S WARRANTY SHALL EXTEND FOR A PERIOD OF 12 MONTHS AFTER THE ITEM IS DELIVERED AND ACCEPTED BY BUYER AND APPLIED TO ITS INTENDED USE and survive inspection, tests, acceptance and payment and shall be considered to have been given not only to Buyer but also to Buyer's customers and to end-users of the goods. Where Buyer incorporates that item into a product of Buyer to be delivered to its customer, Seller's obligation under this clause shall be for the benefit of Buyer's customer and shall extend to one year after application of the item to its intended use.
  5. The warranties represented and covenants of parties hereto shall survive the delivery of the goods or completion of the work or services provided and shall be fully enforceable thereafter and shall extend such warranties to any third party ultimately using any goods. Seller's warranty hereunder is part consideration for the Contract; any payment by Buyer hereunder is conditional upon this warranty remaining in effect; and no modification or other change of this warranty shall be valid unless evidenced by Buyer's written change order.

P. QUALITY STANDINGS: If a special brand is listed in the order, the goods being purchased must meet the standard for quality, performance, and use of such brand. If Seller is willing to supply a product equivalent to the designated special brand, it must first provide Buyer with descriptive literature identifying its brand, including the quality, performance, and specifications therefore. If Buyer elects to accept goods purported to be equal to the special brand, the goods may be rejected and dealt with as provided in Paragraph L hereof, if any goods are determined to be non-conforming.

Q. INSPECTION AND QUALITY CONTROL:

  1. All items furnished under the order by Seller to Buyer shall be subject to inspection and tests by Buyer, or representatives of third party purchasing Buyer's product in which items will be used ("User's Representative"). To the extent practicable, inspection may be made at all times and places, including the period and location of manufacture and prior to acceptance.
  2. If inspections or tests are made by Buyer or User's Representative on the premises of Seller, supplier or subcontractor, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors in the performance of their duties. If inspection or test is made at a point other than the premises of Seller, supplier or subcontractor, it shall be at the expense of Buyer except as otherwise provided in the order. In case of rejection, Buyer shall not be liable for any reduction in value of samples used in connection with such inspection or test. All inspections and tests by Buyer or User's Representative shall be performed in such manner as to not unduly delay the work. Buyer reserves the right to charge Seller any additional cost to inspect and test when supplies are not ready at the time such inspection and test is requested by Seller or when re-inspection or retest is necessitated by prior rejection. Inspection and acceptance or rejection of the supplies shall be made as promptly as practicable after delivery as may be specified herein, regardless of prior payment. Failure to inspect, accept or reject goods shall neither relieve Seller from responsibility for such supplies as are not in accordance with the order's requirements nor impose liability on Buyer.
  3. Seller shall provide and maintain inspection and quality control systems acceptable to Buyer covering the items furnished hereunder. Records of all inspection work by both Buyer and Seller shall be kept intact and made available upon request to the other party during the performance of the order and for six years following delivery under the order.
  4. Without limiting the generality of Paragraph Q.1., Seller agrees if a special production run is made, that the first item produced on the order (the "First Article") is subject to first article acceptance prior to further fabrication (the "First Article Acceptance"). If the initial First Article submitted fails to meet the First Article Acceptance requirements, a new First Article will be submitted for approval. This procedure shall be continued until an acceptable First Article has been approved. First Article Acceptance shall be based on the requirements of the drawings, specifications, and purchase documents, as applicable under the order. Acceptance of the First Article shall not be considered acceptance of subsequent goods production. The submission of a First Article shall be accompanied by the physical data found by Seller, the tool number used to produce the First Article and, in the case of goods produced in molds, dies, etc., with more than one cavity, Seller shall submit a First Article from each cavity and identify the cavity each First Article represents.
  5. Seller shall provide Buyer appropriate material certifications as described on the order, including, but not limited to, American Bureau of Shipping Inspection Certificates, material, physical, and/or chemical analysis certifications, OSHA/WISHA Material Safety Data Sheets, and U.S. Coast Guard acceptance certifications.

R. Changes. Buyer may at any time, by written notice to Seller, change the order or the Contract as to (1) specifications for the goods or services, (2) time or place of delivery or performance, (3) method of packing or shipment, or (4) quantity of the goods or extent of the services. If this causes a change in Seller's cost or time of performance, then an equitable adjustment shall be made in the price or time for delivery or performance, or both, if Seller gives Buyer a written request for an adjustment within 20 days after Buyer notifies Seller of the change.

S. Termination at Buyer's Option. Buyer may terminate the Contract, in whole or in part, at any time by written notice to Seller stating the extent and effective date of termination. When Seller receives notice of termination under the preceding sentence or under Paragraph N, Seller shall, unless otherwise directed by Buyer, stop work and acquisition of materials under the Contract and protect property in Seller's possession in which Buyer has or may acquire an interest. Not later than 30 days after the effective date of termination, Seller may submit to Buyer its claim, if any, for reasonable compensation for termination. Buyer shall have the right to audit and inspect Seller's books, records and other documents that relate to the termination claim. If the parties cannot agree within a reasonable time upon the amount of fair compensation for the termination, then Buyer will pay to Seller, without duplication, (1) the Contract price for conforming goods or services that Seller shall have completed and delivered or performed (as applicable) in accordance with the provisions of the Contract and that Buyer shall not have paid for and (2) the actual costs that Seller incurs and that are properly allocable or apportionable under recognized commercial accounting practices to the terminated portion of the Contract, but not to exceed the Contract price for the terminated portion of the Contract, less (a) any payments that Buyer made and (b) the value to Seller of any raw materials, work-in-process and finished goods that Seller retains and that are allocable to the terminated portion of the Contract under such practices. Buyer will pay these amounts after Seller delivers to Buyer any completed goods. If Buyer shall have made payments of the purchase price to Seller that in the aggregate exceed the total amounts payable by Buyer to Seller under the preceding provisions, then Seller shall promptly refund the excess to Buyer. Termination under this Paragraph S shall terminate only Seller's obligation and right to deliver goods or provide services under any provision of the Contract other than this Paragraph S and shall not terminate or impair Seller's other obligations, or any of Buyer's rights, under the Contract.

T. INFRINGEMENTS: Seller warrants that Buyer's purchase, installation and/or use of the goods or services covered by the Contract will not result in any claim of infringement, or actual infringement of any patent, trademark, copyright, franchise, or other intellectual property right. Seller shall indemnify and hold Buyer harmless from and against all claims, losses, damages, causes of action and liabilities of every kind and nature, including without limitation reasonable attorneys' fees (without waiver of Seller's obligation to indemnify Buyer hereunder), arising from or out of any breach of the foregoing warranty.

U. RISK OF LOSS: Regardless of F.O.B. Point, Seller agrees to bear all risk of loss, injury, or destruction of good and materials ordered herein which occur prior to acceptance by Buyer. No such loss, injury, or destruction shall release Seller from any obligations hereunder.

V. INDEMNIFICATION: HOLD HARMLESS: Seller shall indemnify and hold Buyer and its directors, officers, employees, and agents ("representatives") harmless (and defend Buyer and its representatives if it requests) as to any claims, liabilities, losses, damages and expenses (including, without limitation, attorneys' fees and other legal expenses) brought against or incurred by Buyer or its representatives because of (1) any breach of the Contract or these Terms of Purchase, (2) any breach by Seller of any of its obligations or warranties to, or agreements with, Buyer, (3) any death, injury or damage to any person or property alleged to have been caused by or arising out of (i) the goods or services, (ii) Seller's manufacture and delivery of the goods or performance of the services, or (4) from other acts or omissions of Seller, its officers, agents, employees, subcontractors, and guests.

W. LEGAL COMPLIANCE: Seller represents and warrants that the goods and/or services described on the order will be manufactured, performed, distributed, shipped, packed, labeled and delivered, and that required notices will be given, in compliance with all applicable federal, state and local laws, regulations, ordinances, standards and orders, and Seller shall, upon request, furnish certification of such compliance. By accepting the order, Seller certifies that the goods and/or services purchased hereunder will be manufactured, delivered and performed in accordance with the Fair Labor Standards Act of 1938, as amended, and agrees to furnish on each invoice a certification of such fact in a form approved by the United States Department of Labor. Seller specifically agrees to comply with the provisions of Presidential Executive Order 11246, the Federal Occupational Safety and Health Act of 1970, the Federal Toxic Substances Act, as amended, and the Washington Industrial Safety and Health Act of 1973, as amended, and the standards and regulations issued thereunder.

X. BUYER'S PROPERTY, SPECIAL TOOLINGS, DRAWINGS OR SPECIFICATION:

  1. Any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and any tooling, equipment or other property that Buyer furnishes to, or acquires from, Seller or are prepared by Seller in connection with Seller's manufacture of the goods or performance of the services, including any Special Tooling ("Buyer Property") are and shall at all times be Buyer's sole and exclusive property. Seller shall (1) maintain the Buyer Property in good condition, (2) mark the Buyer Property "Property of EJ USA, Inc.", (3) not commingle the Buyer Property with property of Seller or third parties, (4) allow Buyer to inspect and examine the Buyer Property at any time, and (5) return the Buyer Property to Buyer upon its request.
  2. Seller is responsible for the protection, calibration, maintenance and care (other than normal wear) of all Buyer Property. Said tooling or equipment shall be subject to surveillance inspection upon notice and shall be returned in an acceptable condition upon demand or notice.
  3. Except as otherwise specified in the order, any special tooling, including jigs, fixtures, molds, patterns, special gauges, special test equipment and other items ("Special Tooling") shall be furnished by and at the expense of Seller for Buyer, shall be stamped or painted "Property of EJ USA, Inc.", and shall be stored separately when not in use. Special Tooling shall be properly maintained and services and kept in good condition by Seller and, when necessary, replaced by Seller without expense to Buyer. Title to Special Tooling shall be with Buyer; and all goods made from Buyer's Special Tooling's are to be supplied to Buyer exclusively.

Y. SERVICE OR INSTALLATION OF WORK: In the event the order requires the performance of work or installation of goods by Seller upon any property or project of Buyer, the following conditions shall also be applicable.

  1. Seller shall take precautions to protect all property and persons from damage or injury arising out of its work and shall comply with all fire, safety and other applicable regulations prescribed by any governmental agency and by Buyer and/or owner of the project upon which work is being performed, and shall be responsible for the observance thereof by all subcontractors, employees, agents and representatives of Seller and its subcontractors.
  2. Seller shall promptly pay for all labor and material and if Seller fails to do so Buyer without waiving any rights or remedies against Seller for or by reason of such failure may, but without any obligation to do so, pay the same and deduct the amount of such payments from sums due Seller hereunder; and Buyer may withhold any payment to Seller until receiving such affidavits, waivers, and releases with respect to claims for labor and materials as Buyer may require.
  3. The work shall remain at Seller's risk prior to written acceptance by Buyer and/or the owner of the project and Seller shall replace at its own expense all work damaged or destroyed by any cause whatsoever.
  4. Seller shall observe and comply with, to the extent required by Buyer, the wages, hours and working conditions established by Buyer on the project or required of Buyer by applicable labor agreement
  5. Seller shall act as an independent contractor and not as the agent or representative of Buyer. Seller shall perform its work in accordance with the schedules and work programs established by Buyer and shall fully cooperate with buyer and others engaged in work on the project so that the work on the entire project may be performed with the utmost speed, consistent with good practices. In case of conflict, Buyer may direct the necessary coordination.
  6. Seller shall carry on its work so that the premises shall at all times by clean, orderly and free from debris and upon completion shall remove all equipment and unused materials from the project; clean up all refuse and debris and leave the site of the work clean orderly and in good condition.
  7. Seller shall require Seller's employees, agents, contractors or subcontractors to abide by Buyer's Work and Safety rules when work or services are performed at Buyer's premises. Buyer has the right to exclude personnel from Buyer's premises who do not abide by such rules, and at Buyer's election, to declare a default under the Contract.
  8. Seller is solely liable for its employees, agents, contractors or subcontractors and their action while on Buyer's premises and Seller indemnifies and will protect Buyer from all losses, claims, expenses, damages arising from or out of the presence or activity of Seller's employees while at Buyer's premises. This indemnification is to clarify Paragraph V.

Z. ADVERTISING: No advertising or publicity matter having or containing any reference to Buyer or any of its staff members shall be made by Seller or anyone in Seller's behalf unless Seller has written consent of Buyer.

AA. GOVERNMENT CONTRACTS. If Buyer will use the goods or services covered by the order in connection with a contract with the United States or other government, then all terms and conditions that the government contract or any law or regulation requires to be included in any contract formed pursuant to the order ("Government Terms") are incorporated in the Contract by reference. If a provision of the Contract is inconsistent with a Government Term, then the Government Term shall control.

AB. INSURANCE. Seller shall maintain insurance coverage that will fully protect both Seller and Buyer from all claims and liabilities of any kind or nature for property damage, personal injury, death and economic damage, to any person, that arises from the goods or their use or the performance of the services or any activities connected with the services. Seller shall maintain employee's liability and compensation insurance that will protect Buyer from all claims and liabilities that Seller or any employee or agent of Seller makes under any applicable worker's compensation or occupational disease acts. All insurance that this Paragraph BB requires shall be in amounts and coverages, and shall be issued by insurers, as set forth on the order or that are satisfactory to Buyer. Upon Buyer's request at any time, Seller shall furnish to Buyer certificates evidencing required insurance.

AC. INDEPENDENT CONTRACTOR. Seller is an independent contractor, and neither Seller nor any of Seller's employees or agents shall be considered agents or employees of Buyer, and Seller shall furnish, at Seller's expense, all labor, materials, equipment, transportation, facilities and other items that are necessary to perform the services.

AD. INSECURITY AND ADEQUATE ASSURANCE. If Buyer ever believes in good faith that it has grounds for insecurity as to Seller's performance, then Seller shall provide adequate assurance of due performance within ten days after Buyer demands the assurance, which shall be considered to be a reasonable time. Seller's failure to do so shall be considered to be a repudiation by Seller of the Contract and of all other then-existing contracts that provide for Seller to sell goods and/or services to Buyer ("Outstanding Contracts"). "Grounds for insecurity" include (1) Seller's failure to perform an obligation under an Outstanding Contract, (2) Seller's insolvency, (3) a deterioration in Seller's financial condition after the Contract was entered into, and (4) Seller's failure to provide financial statements and other financial information to Buyer promptly upon Buyer's request.

AE. CONFIDENTIALITY AND NON-USE. Seller shall not sell or offer to sell or otherwise provide to anyone other than Buyer any goods made in accordance with any drawings, designs or specifications that Buyer furnishes to Seller or that incorporate, embody or are made in accordance with any of Buyer's intellectual property or the Buyer Property. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Seller's suppliers), the goods, any designs of or specifications for the goods, any Buyer Property or any information concerning Buyer's business, operations or activities, including, without limitation, information concerning Buyer's present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques ("Confidential Information"), except that Seller may disclose Confidential Information to a third party (other than a competitor of Buyer or a subsidiary or affiliate of a competitor) to the extent disclosure is necessary in order for Seller to perform its obligations under the Contract. If Seller breaches or threatens to breach this Paragraph EE or Paragraph X, then Buyer's remedies at law will be inadequate. Therefore Buyer shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Buyer's rights and remedies shall be cumulative.

AF. INTELLECTUAL PROPERTY. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Seller creates or develops in the course of Seller's performance of the services or Seller's design or development of the goods for Buyer, including all proprietary rights in the foregoing ("Intellectual Property") shall be Buyer's sole property, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in the Intellectual Property. All copyrightable works that Seller creates or develops in the course of Seller's performance of the services or Seller's design or development of the goods for Buyer shall be considered "works made for hire" within the meaning of the federal Copyright Act of 1976, as amended, and under the equivalent laws of any other country. To the extent that any such copyrightable work is not considered a "work made for hire," it shall be the sole property of Buyer, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in it and in all copyright rights in it. Seller shall sign and deliver to Buyer all assignments and other documents, and Seller shall take all other actions, that Buyer requests for the purpose of perfecting Buyer's ownership of and title to the Intellectual Property and in any copyrightable work that is not considered a "work made for hire" and in all copyright rights in it. If the goods or their design are subject to any pre-existing patent rights or other proprietary rights that Seller holds, then Seller grants to Buyer an irrevocable, non-exclusive, royalty-free license of the patent rights and other proprietary rights to the extent necessary to enable Buyer to modify, repair or rebuild any or all of the goods. This license is in addition to all licenses impliedly granted to Buyer as a purchaser of the goods. Seller shall not use Buyer's name or any trademark, trade name, service mark or trade dress that Buyer owns or that is licensed to Buyer or to any affiliate of Buyer, without Buyer's express, written consent, and Seller shall not sell to anyone other than Buyer any goods bearing any such trademark, trade name, service mark or trade dress.

AG. GOVERNMENTAL DECLARATION. If a governmental agency declares that any material included in any of the goods is, or if Buyer at any time believes in good faith that any such material may be, unsafe or unfit for the intended use of the goods, then, without limiting other rights and remedies that are available to Buyer under these Terms of Purchase or applicable law, (1) Seller shall give Buyer written notice of the declaration and shall furnish to Buyer copies of the declaration and of all relevant notices, documents and correspondence, (2) Seller shall stop including the material in the goods, (3) Buyer may terminate the order or the Contract, without liability to Seller, by giving written notice to Seller, which shall be effective immediately or on any later date that the notice specifies, (4) if Buyer does terminate, then Buyer's obligations under the Contract shall terminate immediately and Buyer shall not have an obligation to pay Seller damages or other compensation by reason of the termination, (5) without limiting other remedies that Buyer may exercise, Buyer shall have the right to recall (i.e. purchase or repurchase) any or all of the goods from its customers and end-users and any others having possession of the goods, and Seller shall reimburse Buyer for all costs that Buyer incurs in doing so and shall assist Buyer in the recall, to the extent that Buyer requires Seller to do so, (6) if Seller demonstrates to Buyer's satisfaction that there is a safe and fit substitute material that conforms to all of the requirements of the Contract and that Seller can and will use the substitute in the goods, then Buyer shall have the right, but no obligation, in Buyer's sole discretion, to reinstate the Contract and to require Seller to perform in accordance with the Contract, except that Seller shall use the substitute material, and (7) whether or not Buyer terminates and/or reinstates the Contract, Seller shall pay to Buyer an amount equal to all damages that Buyer incurs by reason of the declaration by the governmental agency or such good faith belief by Buyer and any resulting recall or delay in performance and/or any termination of the Contract by Buyer.

AH. ATTORNEYS' FEES: In any suit or action brought to enforce any term, condition, or covenant herein, or to recover damages arising from any breach of this contract, the losing party shall pay to the prevailing party reasonable attorneys' fees and all other costs and expenses which may be incurred by the prevailing party in any such suit or action and in any reviews thereof and appeals therefrom.

AI. LAW: The laws of the State of Michigan shall govern the Contract, and the venue of any action brought hereunder may be laid in or transferred to the County of Charlevoix, State of Michigan.

AJ. INTENDED USE: Unless otherwise stated, the goods ordered are to have an intended usage in the manufacture, construction, modification, maintenance, repair and/or serving of the company's products and facilities.

October 2012

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Canada

A. ACCEPTANCE:

  1. The order is an offer by the EJ Group entity named, where such entity may be EJ USA, Inc., EJ Group, Inc., EJ Americas, LLC, EJ Canada, ULC; or Ardmore Foundry, Inc. on any order ("Buyer"), to purchase goods and/or services from Seller. Buyer's placement of the order with Seller is expressly conditioned upon Seller's acceptance of all of the terms and conditions of purchase contained herein.
  2. In these Terms of Purchase, "Seller" means the seller named in the order, "goods" and "services" mean the goods or services that Buyer is to purchase from Seller, as described in the order, "Contract" means any contract formed pursuant to the order, and "order" means any Buyer purchase order sent to or received by Seller.
  3. The Contract includes the terms of any written agreement between Buyer and Seller in which they have agreed that these Terms of Purchase will apply to Buyer's purchases from Seller. If for any reason, however, no such agreement applies to Buyer's purchase from Seller under the order, then (1) the order is an offer to buy by Buyer, and Buyer rejects any earlier offers to sell made by Seller, (2) if the order nevertheless is in legal effect an acceptance of an earlier offer by Seller, then Buyer's acceptance is conditional upon Seller's assent to all of these Terms of Purchase that are additional to or different from the terms of Seller's offer, and (3) by signing and returning a copy of the order or by accepting the order electronically or by shipping the goods or performing the services, Seller accepts, and agrees and assents to, all of these Terms of Purchase. Notwithstanding the foregoing, if both Buyer and Seller have signed a separate contract that specifies the terms that will apply to Seller's sales to Buyer, and Buyer's purchases from Seller, of the goods and/or the services ("Special Contract") and if there is ever a direct conflict between a provision of the Special Contract and these Terms of Purchase, then the provision of the Special Contract shall control.
  4. Any additional or different terms or conditions which may appear in any communication from Seller are hereby expressly objected to and shall not be effective or binding unless specifically agreed to in writing by Buyer's Purchasing Department, and no such additional or different terms or conditions in any printed form of Seller shall become part of the Contract despite Buyer's acceptance of goods or services, unless such acceptance specifically recognizes and assents to their inclusions.
  5. Any objection by Seller these Terms of Purchase shall be ineffective unless Buyer is advised in writing thereof within 10 days of the order.

B. IDENTIFICATION: All invoices, packages, shipping notices, instruction manuals and other written documents affecting the order shall contain the applicable purchase order number. Packing lists shall be enclosed in each box or package shipped pursuant to the order, indicating the contents therein. Invoices will not be processed for payment until all items invoices are received.

C. SHIPPING INSTRUCTIONS: All goods are to be shipped freight prepaid, F.O.B. destination, unless otherwise stated on the order. Where Buyer has so authorized in writing, goods may be shipped F.O.B. shipping point, but Seller shall prepay all shipping charges, including any insurance charges, route the goods by the lowest cost common carrier, (ii) as set forth on the order, or (iii) by the carrier specified by Buyer, and list said charges as a separate item on Seller's invoice. Buyer reserves the right to reject C.O.D. shipments.

D. SPECIAL CHARGES: Seller shall be responsible for the payment of all charges for handling, packaging, wrapping, bags, containers and related matters unless Buyer has assumed an express obligation therefore by notation on the order.

E. DELIVERY: Time is of the essence, and the order or the Contract may be terminated if delivery is not made or services are not performed by the date specified on the order. No changes in the scheduled delivery date or performance will be permitted without Buyer's prior written consent. No acceptance of goods or services after the scheduled delivery date will waive Buyer's rights with respect to such late delivery nor shall it be deemed a waiver of future compliance with the terms hereof. If Seller delivers more goods than Buyer ordered, then, unless Buyer agrees otherwise in writing, Buyer shall not have to pay for the excess. Unless Buyer agrees otherwise in writing or otherwise set forth in the order, Seller shall deliver all of the goods in a single delivery and not in installments. Buyer's acceptance of a delivery that contains less than the required quantity shall not relieve Seller of its obligation to deliver the balance of the ordered goods at the price and on the other terms that the order specifies. If Seller delivers the goods before the scheduled delivery date, then Buyer may, at Seller's expense and risk, either store them or return them to Seller. Buyer's acceptance of an early delivery shall not change the payment terms.

F. PAYMENT: Buyer will remit payment to Seller by mail or by any other means Seller requests. Seller agrees not to deliver goods on a sight draft basis. Payment of a purchase price does not constitute acceptance of the goods. If Buyer pays any part of the purchase price of the goods before Seller delivers them to Buyer, then (1) title (but not risk of loss) to each item of the goods shall pass to Buyer upon identification of the item to the Contract, (2) to the extent necessary to protect Buyer's title to the goods, Seller grants Buyer a security interest in the goods to secure Seller's obligation to deliver them to Buyer and all of Seller's other present and future obligations to Buyer, and (3) Seller shall obtain from each person that holds a security interest in or lien upon the goods a written agreement releasing that security interest or lien or subordinating it to Buyer's interest in the goods.

G. PRICES: If a price is not stated on the order, it is agreed that the goods or services shall be billed at the price last quoted, or paid by the customer of Seller, or the prevailing market price, whichever is lower. Except as otherwise set forth herein, Seller is responsible for all transportation costs (including, without limitation, packaging, loading, unloading and insurance costs), duties, taxes, charges and fees related to any goods and such costs are included in the purchase price on the order.

H. CASH DISCOUNT: If Buyer is entitled to a cash discount, the period of computation thereof will commence on the date of acceptance or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date on which an agreed adjustment of price is reached. If a cash discount is made part of the contract, but the invoice does not reflect the existence thereof, Buyer is entitled to a cash discount with the period commencing on the date Buyer determines that a cash discount applies.

I. TAXES: Seller shall pay all taxes that may arise out of its sale of the goods and services to Buyer. Buyer agrees to pay applicable sales or use taxes or to provide an exemption certificate.

J. ASSIGNMENT: Seller shall not assign the Contract or the right to payment due hereunder, without Buyer's prior written consent.

K. LIENS, CLAIMS, AND ENCUMBRANCES: Seller warrants and represents that all the goods will, when delivered hereunder, be free and clear of all liens, claims or encumbrances of any kind. Except as permitted by law, no mechanics' or other lien, or notice creating such lien, or claim or action thereon shall be filed or recorded by Seller or any agent or subcontractor of seller, for services performed to the extent Buyer has paid Seller. Where applicable, Seller and any agent or subcontractor will deliver to Buyer contemporaneously with any payment or application for payment, recordable unconditional waivers of lien for any payments previously received, and a recordable, statutory unconditional full waiver of lien for the final payment. If any lien is filed or recorded in violation of this Paragraph K, Seller will remove the lien, at its expense, within 10 business days of the filing or recording of the lien.

L. REJECTION: All goods purchased hereunder are subject to Buyer's inspection and approval. Goods rejected by Buyer for whatever reason shall be held, transported and/or stored at Seller's sole expense. Seller shall promptly reimburse Buyer for any such expenses.

M. DEFAULT: Buyer may, subject to the provisions of Paragraph N, by written notice of default to Seller, cancel the whole or any part of the order or the Contract or exercise any other remedy provided Buyers of goods by law or in equity including any remedy under the Ontario Sale of Goods Act or any analogous legislation of another province or territory of Canada, in any of the following circumstances:

  1. If Seller fails to make delivery of the goods or to perform the services within the time specified herein or any extension thereof;
  2. If, in Buyer's good faith judgment, Seller fails to perform any of the other provisions of the Contract or fails to make progress as to endanger performance of the order or the Contract in accordance with its terms and does not cure such failure within a period of ten days, or such longer period as Buyer may authorize in writing, after receipt of notice from Buyer specifying such failure;
  3. Seller is in breach of any of the terms or conditions of the Contract; or
  4. If Seller becomes insolvent or makes an assignment for the benefit of creditors, or if there shall be instituted by or against Seller any proceeding under any bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of Seller's property and such proceeding is not dismissed or cured within 60 days.

N. REMEDIES: Not by way of limitation, the remedies of the parties include:

  1. Without limiting other rights and remedies available to it, Buyer may, at its option, (1) return nonconforming goods to Seller, at Seller's risk and expense, and require Seller either to give Buyer full credit against the price or promptly to repair or replace the goods at Seller's risk and expense, (2) retain nonconforming goods and set off losses against any amount that Buyer owes Seller or (3) repair or replace nonconforming goods and charge Seller with the expense. If at any time (a) Seller defaults in the performance of any of Seller's obligations to Buyer under the Contract or under any other agreement between Seller and Buyer, (b) Seller repudiates the Contract, or (c) a warranty or representation that Seller made to Buyer in or in connection with the Contract is false or misleading in a material respect, then Buyer may terminate the Contract, in whole or part, without liability to Seller, and Seller shall promptly pay to Buyer all damages that Buyer incurred as a result of the termination and as a result of the event or circumstance on the basis of which Buyer terminated. In addition, Buyer may procure upon such terms and in such manner as Buyer may deem appropriate goods or services similar to those cancelled and Seller shall be liable to Buyer for any excess costs for such similar supplies or services, provided that Seller shall continue the performance of the Contract to the extent not cancelled under the provisions of the order.
  2. If Buyer does terminate the Contract, then Seller, if and to the extent that Buyer demands, shall immediately deliver to Buyer all finished and unfinished goods and all work-in-process and raw materials that Seller acquired for use in the manufacture or processing of the goods and all designs, drawings, specifications and software that Buyer is purchasing from Seller under the Contract, including all work-in-process, all source, object and pseudo codes, all preexisting programs intended to be incorporated in the software and all intellectual property rights in the foregoing. Buyer's payment of part or all of the purchase price shall not be a precondition to Seller's obligation to make the delivery. After Seller has made the delivery and Buyer has determined its damages (including, without limitation, any cost of "cover" or of completing the manufacture or processing of the goods), then Buyer will pay to Seller any excess of (1) any unpaid part of the purchase price properly allocable to any conforming goods, work-in-process and raw materials that Seller delivered to Buyer over (2) Buyer's damages.
  3. The rights and remedies of Buyer provided in this Paragraph N shall not be exclusive and are in addition to any other rights and remedies provided by law or under the Contract.
  4. The failure of Buyer to insist upon strict performance of any terms of the Contract or to exercise any rights hereunder shall not be construed as a waiver of Buyer's rights.
  5. Seller may be excused from performance under the order or the Contract upon the occurrence of any of the below-mentioned events provided Seller notifies Buyer within 10 days of discovery of any of the below-mentioned events:
    1. Events beyond the control of Seller which give rise to the excused party's failure to perform, including, without limitation, acts of God, public enemy, Buyer, or a government with lawful jurisdiction over Buyer in either its sovereign or contractual capacity, or fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes or unusually severe weather.
    2. Default of a supplier or subcontractor, if such default gives rise to Seller's failure to perform and arises out of causes beyond the control of both Seller and the supplier or subcontractor, without the fault or negligence of either of them, and Seller makes a concerted effort to obtain replacement supplies or services in time to meet the requirements of the order.
  6. Credits and/or adjustments not received within 60 days following the return of material or verbal agreement will be deducted from the next available invoice or billed to the shipper at the agreed amount including any shipping and handling charges. Alternatively, Buyer may set off any amounts owed to Seller against any present or futures claims which Buyer may have against Seller.
  7. Seller's remedies for any alleged breach by Buyer shall be limited to the direct foreseeable damages of Seller and in no event shall Seller be entitled to recover any indirect, incidental or consequential damages.
  8. If a material part of Buyer's business in which the goods and/or services are to be employed is shut down, permanently or temporarily, because of anything Buyer cannot reasonably control (such as cancellation of a key contract, casualty or labor trouble), Buyer may cancel the order without liability except as to conforming goods delivered to Buyer or conforming services performed for Buyer before Buyer cancels.
  9. Buyer's termination under this Paragraph N shall terminate only Seller's obligation and right to deliver goods or provide services other than as this Paragraph N requires and shall not terminate or impair Seller's other obligations, or any of Buyer's rights, under the Contract. In addition to Buyer's rights described in these Terms of Purchase, Buyer has all of the other rights and remedies that the law gives to buyers, including the right to recover incidental and consequential damages that result from Seller's breach. Buyer shall not lose a right just because it does not exercise it. Buyer shall have the full statutory period of limitations to bring an action that arises out of Buyer's agreement with Seller. The parties agree that a reasonable time for Buyer to notify Seller of a breach is not less than two years from when Buyer discovers the breach.

O. WARRANTIES: Seller warrants goods supplied and work or services performed under the order conform to specifications in the Contract and are MERCHANTABLE and fit for the particular purposes for which Buyer intends the goods and for which the goods are ordinarily employed.

  1. Seller further warrants to Buyer and to any third party ultimately using an item whether such third party is a customer of Buyer or not, that (a) the goods shall be new, (b) the goods and services shall be of good material, workmanship and quality, and free from faults and defects, (c) the goods and services shall conform to any samples, drawings, specifications, performance criteria standards or other requirements that are referred to in the order or that Buyer has otherwise specified or agreed to in writing, (d) the prices of the goods and services and any discounts, advertising allowances or other merchandising payments or services that the Contract requires Seller to provide to Buyer are as favorable to Buyer as the lowest prices and the highest discounts, advertising allowances or other merchandising payments or services that Seller provides to other buyers of comparable goods or services, (e) Seller shall promptly furnish to Buyer all information and copies of documents (including, but not limited to, complaints, inquiries, test or inspection results and warnings) that Seller receives from an end-user of the goods, a government agency, an employee or agent of Seller or any other person or source and that suggests or indicates that the goods may not conform to the requirements of this Paragraph O, and (f) Seller has and follows, and will continue to have and follow, adequate quality and security procedures that will assure that the goods and services will comply with the foregoing warranties, representations and agreements. If Buyer requests it, Seller shall give Buyer certificates of compliance with applicable laws and regulations. Buyer's approval of a sample, drawing, specification or standard shall not relieve Seller of any of its obligations or warranties under this Paragraph O, including, without limitation, its warranties of merchantability, fitness for a particular purpose, and compliance with laws.
  2. Seller shall be liable for all damages both to Buyer and its customers incurred as a result of any defect or breach of warranty in any goods covered by the order. At Buyer's option, Seller shall promptly correct any defect identified by Buyer, at Seller's expense.
  3. The foregoing express warranties shall not be limited and shall be in addition to any warranty customarily made by Seller of its products and any implied warranties and shall be construed as conditions as well as warranties.
  4. SELLER'S WARRANTY SHALL EXTEND FOR A PERIOD OF 12 MONTHS AFTER THE ITEM IS DELIVERED AND ACCEPTED BY BUYER AND APPLIED TO ITS INTENDED USE and survive inspection, tests, acceptance and payment and shall be considered to have been given not only to Buyer but also to Buyer's customers and to end-users of the goods. Where Buyer incorporates that item into a product of Buyer to be delivered to its customer, Seller's obligation under this clause shall be for the benefit of Buyer's customer and shall extend to one year after application of the item to its intended use.
  5. The warranties and covenants of the parties hereto shall survive the delivery of the goods or completion of the work or services provided and shall be fully enforceable thereafter and shall extend such warranties to any third party ultimately using any goods. Seller's warranty hereunder is part consideration for the Contract; any payment by Buyer hereunder is conditional upon this warranty remaining in effect; and no modification or other change of this warranty shall be valid unless evidenced by Buyer's written change order.

P. QUALITY STANDINGS: If a special brand is listed in the order, the goods being purchased must meet the standard for quality, performance, and use of such brand. If Seller is willing to supply a product equivalent to the designated special brand, it must first provide Buyer with descriptive literature identifying its brand, including the quality, performance, and specifications therefore. If Buyer elects to accept goods purported to be equal to the special brand, the goods may be rejected and dealt with as provided in Paragraph L hereof, if any goods are determined to be non-conforming.

Q. INSPECTION AND QUALITY CONTROL

  1. All items furnished under the order by Seller to Buyer shall be subject to inspection and tests by Buyer, or representatives of third party purchasing Buyer's product in which items will be used ("User's Representative"). To the extent practicable, inspection may be made at all times and places, including the period and location of manufacture and prior to acceptance.
  2. If inspections or tests are made by Buyer or User's Representative on the premises of Seller, supplier or subcontractor, Seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of such inspectors in the performance of their duties. If inspection or test is made at a point other than the premises of Seller, supplier or subcontractor, it shall be at the expense of Buyer except as otherwise provided in the order. In case of rejection, Buyer shall not be liable for any reduction in value of samples used in connection with such inspection or test. All inspections and tests by Buyer or User's Representative shall be performed in such manner as to not unduly delay the work. Buyer reserves the right to charge Seller any additional cost to inspect and test when supplies are not ready at the time such inspection and test is requested by Seller or when re-inspection or retest is necessitated by prior rejection. Inspection and acceptance or rejection of the supplies shall be made as promptly as practicable after delivery as may be specified herein, regardless of prior payment. Failure to inspect, accept or reject goods shall neither relieve Seller from responsibility for such supplies as are not in accordance with the order's requirements nor impose liability on Buyer.
  3. Seller shall provide and maintain inspection and quality control systems acceptable to Buyer covering the items furnished hereunder. Records of all inspection work by both Buyer and Seller shall be kept intact and made available upon request to the other party during the performance of the order and for six years following delivery under the order.
  4. Without limiting the generality of Paragraph Q.1., Seller agrees if a special production run is made, that the first item produced on the order (the "First Article") is subject to first article acceptance prior to further fabrication (the "First Article Acceptance"). If the initial First Article submitted fails to meet the First Article Acceptance requirements, a new First Article will be submitted for approval. This procedure shall be continued until an acceptable First Article has been approved. First Article Acceptance shall be based on the requirements of the drawings, specifications, and purchase documents, as applicable under the order. Acceptance of the First Article shall not be considered acceptance of subsequent goods production. The submission of a First Article shall be accompanied by the physical data found by Seller, the tool number used to produce the First Article and, in the case of goods produced in molds, dies, etc., with more than one cavity, Seller shall submit a First Article from each cavity and identify the cavity each First Article represents.
  5. Seller shall provide Buyer appropriate material certifications as described on the order, including, but not limited to, applicable shipping certifications, material, physical, and/or chemical analysis certifications, Ontario Workers' Compensation Act and Ontario Occupational Health and Safety Act certifications (or certifications under any analogous legislation of another province or territory of Canada) and Workplace Hazardous Materials Information System (WHMIS) Material Safety Data Sheets.

R. Changes. Buyer may at any time, by written notice to Seller, change the order or the Contract as to (1) specifications for the goods or services, (2) time or place of delivery or performance, (3) method of packing or shipment, or (4) quantity of the goods or extent of the services. If this causes a change in Seller's cost or time of performance, then an equitable adjustment shall be made in the price or time for delivery or performance, or both, if Seller gives Buyer a written request for an adjustment within 20 days after Buyer notifies Seller of the change.

S. Termination at Buyer's Option. Buyer may terminate the Contract, in whole or in part, at any time by written notice to Seller stating the extent and effective date of termination. When Seller receives notice of termination under the preceding sentence or under Paragraph N, Seller shall, unless otherwise directed by Buyer, stop work and acquisition of materials under the Contract and protect property in Seller's possession in which Buyer has or may acquire an interest. Not later than 30 days after the effective date of termination, Seller may submit to Buyer its claim, if any, for reasonable compensation for termination. Buyer shall have the right to audit and inspect Seller's books, records and other documents that relate to the termination claim. If the parties cannot agree within a reasonable time upon the amount of fair compensation for the termination, then Buyer will pay to Seller, without duplication, (1) the Contract price for conforming goods or services that Seller shall have completed and delivered or performed (as applicable) in accordance with the provisions of the Contract and that Buyer shall not have paid for and (2) the actual costs that Seller incurs and that are properly allocable or apportionable under recognized commercial accounting practices to the terminated portion of the Contract, but not to exceed the Contract price for the terminated portion of the Contract, less (a) any payments that Buyer made and (b) the value to Seller of any raw materials, work-in-process and finished goods that Seller retains and that are allocable to the terminated portion of the Contract under such practices. Buyer will pay these amounts after Seller delivers to Buyer any completed goods. If Buyer shall have made payments of the purchase price to Seller that in the aggregate exceed the total amounts payable by Buyer to Seller under the preceding provisions, then Seller shall promptly refund the excess to Buyer. Termination under this Paragraph S shall terminate only Seller's obligation and right to deliver goods or provide services under any provision of the Contract other than this Paragraph S and shall not terminate or impair Seller's other obligations, or any of Buyer's rights, under the Contract.

T. INFRINGEMENTS: Seller warrants that Buyer's purchase, installation and/or use of the goods or services covered by the Contract will not result in any claim of infringement, or actual infringement of any patent, trademark, copyright, franchise, or other intellectual property right. Seller shall indemnify and hold Buyer harmless from and against all claims, losses, damages, causes of action and liabilities of every kind and nature, including without limitation reasonable attorneys' fees (without waiver of Seller's obligation to indemnify Buyer hereunder), arising from or out of any breach of the foregoing warranty.

U. RISK OF LOSS: Regardless of F.O.B. Point, Seller agrees to bear all risk of loss, injury, or destruction of good and materials ordered herein which occur prior to acceptance by Buyer. No such loss, injury, or destruction shall release Seller from any obligations hereunder.

V. INDEMNIFICATION: HOLD HARMLESS: Seller shall indemnify and hold Buyer and its directors, officers, employees, and agents ("representatives") harmless (and defend Buyer and its representatives if it requests) as to any claims, liabilities, losses, damages and expenses (including, without limitation, attorneys' fees and other legal expenses) brought against or incurred by Buyer or its representatives because of (1) any breach of the Contract or these Terms of Purchase, (2) any breach by Seller of any of its obligations or warranties to, or agreements with, Buyer, (3) any death, injury or damage to any person or property alleged to have been caused by or arising out of the goods or services, (ii) Seller's manufacture and delivery of the goods or performance of the services, or (4) from other acts or omissions of Seller, its officers, agents, employees, subcontractors, and guests.

W. LEGAL COMPLIANCE: Seller represents and warrants that the goods and/or services described on the order will be manufactured, performed, distributed, shipped, packed, labeled and delivered, and that required notices will be given, in compliance with all applicable federal, state, provincial and local laws, regulations, ordinances, standards and orders, and Seller shall, upon request, furnish certification of such compliance. By accepting the order, Seller certifies that the goods and/or services purchased hereunder will be manufactured, delivered and performed in accordance with all applicable laws including, without limitation, laws relating to fair labour practices, health and safety and the handling and release of hazardous substances.

X.BUYER'S PROPERTY, SPECIAL TOOLINGS, DRAWINGS OR SPECIFICATION:

  1. Any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and any tooling, equipment or other property that Buyer furnishes to, or acquires from, Seller or are prepared by Seller in connection with Seller's manufacture of the goods or performance of the services, including any Special Tooling (as defined below) ("Buyer Property") are and shall at all times be Buyer's sole and exclusive property. Seller shall (1) maintain the Buyer Property in good condition, (2) mark the Buyer Property "Property of EJ USA, Inc.", (3) not commingle the Buyer Property with property of Seller or third parties, (4) allow Buyer to inspect and examine the Buyer Property at any time, and (5) return the Buyer Property to Buyer upon its request.
  2. Seller is responsible for the protection, calibration, maintenance and care (other than normal wear) of all Buyer Property. Said tooling or equipment shall be subject to surveillance inspection upon notice and shall be returned to Buyer or as Buyer may direct in an acceptable condition upon demand or notice.
  3. Except as otherwise specified in the order, any special tooling, including jigs, fixtures, molds, patterns, special gauges, special test equipment and other items ("Special Tooling") shall be furnished by and at the expense of Seller for Buyer, shall be stamped or painted "Property of EJ USA, Inc.", and shall be stored separately when not in use. Special Tooling shall be properly maintained and serviced and kept in good condition by Seller and, when necessary, replaced by Seller without expense to Buyer. Title to Special Tooling shall be with Buyer. All goods made from Buyer's Special Tooling's are to be supplied to Buyer exclusively.

Y. SERVICE OR INSTALLATION OF WORK: In the event the order requires the performance of work or installation of goods by Seller upon any property or project of Buyer, the following conditions shall also be applicable.

  1. Seller shall take precautions to protect all property and persons from damage or injury arising out of its work and shall comply with all fire, safety and other applicable regulations prescribed by any governmental agency and by Buyer and/or owner of the project upon which work is being performed, and shall be responsible for the observance thereof by all subcontractors, employees, agents and representatives of Seller and its subcontractors.
  2. Seller shall promptly pay for all labour and material and if Seller fails to do so Buyer without waiving any rights or remedies against Seller for or by reason of such failure may, but without any obligation to do so, pay the same and deduct the amount of such payments from sums due Seller hereunder; and Buyer may withhold any payment to Seller until receiving such affidavits, waivers, and releases with respect to claims for labour and materials as Buyer may require.
  3. The work shall remain at Seller's risk prior to written acceptance by Buyer and/or the owner of the project and Seller shall replace at its own expense all work damaged or destroyed by any cause whatsoever.
  4. Seller shall observe and comply with, to the extent required by Buyer, the wages, hours and working conditions established by Buyer on the project or required of Buyer by applicable labour agreement.
  5. Seller shall act as an independent contractor and not as the agent or representative of Buyer. Seller shall perform its work in accordance with the schedules and work programs established by Buyer and shall fully cooperate with buyer and others engaged in work on the project so that the work on the entire project may be performed with the utmost speed, consistent with good practices. In case of conflict, Buyer may direct the necessary coordination.
  6. Seller shall carry on its work so that the premises shall at all times be clean, orderly and free from debris and upon completion shall remove all equipment and unused materials from the project, clean up all refuse and debris and leave the site of the work clean, orderly and in good condition.
  7. Seller shall require Seller's employees, agents, contractors or subcontractors to abide by Buyer's Work and Safety rules when work or services are performed at Buyer's premises. Buyer has the right to exclude personnel from Buyer's premises who do not abide by such rules, and at Buyer's election, to declare a default under the Contract.
  8. Seller is solely liable for its employees, agents, contractors or subcontractors and their action while on Buyer's premises and Seller indemnifies and will protect Buyer from all losses, claims, expenses, damages arising from or out of the presence or activity of Seller's employees, agents, contractors or subcontractors while at Buyer's premises. This indemnification is to clarify Paragraph V.

Z. ADVERTISING: No advertising or publicity matter having or containing any reference to Buyer or any of its staff members shall be made by Seller or anyone in Seller's behalf unless Seller has written consent of Buyer.

AA. GOVERNMENT CONTRACTS. If Buyer will use the goods or services covered by the order in connection with a contract with the United States or other government, then all terms and conditions that the government contract or any law or regulation requires to be included in any contract formed pursuant to the order ("Government Terms") are incorporated in the Contract by reference. If a provision of the Contract is inconsistent with a Government Term, then the Government Term shall control.

AB. INSURANCE. Seller shall maintain insurance coverage that will fully protect both Seller and Buyer from all claims and liabilities of any kind or nature for property damage, personal injury, death and economic damage, to any person, that arises from the goods or their use or the performance of the services or any activities connected with the services. Seller shall maintain employee's liability and compensation insurance that will protect Buyer from all claims and liabilities that Seller or any employee or agent of Seller makes under any applicable worker's compensation or occupational health and safety acts. All insurance that this Paragraph BB requires shall be in amounts and coverages, and shall be issued by insurers, as set forth on the order or that are satisfactory to Buyer. Upon Buyer's request at any time, Seller shall furnish to Buyer certificates evidencing required insurance.

AC. INDEPENDENT CONTRACTOR. Seller is an independent contractor, and neither Seller nor any of Seller's employees or agents shall be considered agents or employees of Buyer, and Seller shall furnish, at Seller's expense, all labour, materials, equipment, transportation, facilities and other items that are necessary to perform the services.

AD. INSECURITY AND ADEQUATE ASSURANCE. If Buyer ever believes in good faith that it has grounds for insecurity as to Seller's performance, then Seller shall provide adequate assurance of due performance within ten days after Buyer demands the assurance, which shall be considered to be a reasonable time. Seller's failure to do so shall be considered to be a repudiation by Seller of the Contract and of all other then-existing contracts that provide for Seller to sell goods and/or services to Buyer ("Outstanding Contracts"). "Grounds for insecurity" include (1) Seller's failure to perform an obligation under an Outstanding Contract, (2) Seller's insolvency, (3) a deterioration in Seller's financial condition after the Contract was entered into, and (4) Seller's failure to provide financial statements and other financial information to Buyer promptly upon Buyer's request.

AE. CONFIDENTIALITY AND NON-USE. Seller shall not sell or offer to sell or otherwise provide to anyone other than Buyer any goods made in accordance with any drawings, designs or specifications that Buyer furnishes to Seller or that incorporate, embody or are made in accordance with any of Buyer's intellectual property or the Buyer Property. Seller shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including any of Seller's suppliers), the goods, any designs of or specifications for the goods, any Buyer Property or any information concerning Buyer's business, operations or activities, including, without limitation, information concerning Buyer's present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques ("Confidential Information"), except that Seller may disclose Confidential Information to a third party (other than a competitor of Buyer or a subsidiary or affiliate of a competitor) to the extent disclosure is necessary in order for Seller to perform its obligations under the Contract. If Seller breaches or threatens to breach this Paragraph EE or Paragraph X, then Buyer's remedies at law will be inadequate. Therefore Buyer shall have the right of specific performance or injunctive relief, or both, in addition to any and all other remedies and rights at law or in equity, and Buyer's rights and remedies shall be cumulative.

AF. INTELLECTUAL PROPERTY. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Seller creates or develops in the course of Seller's performance of the services or Seller's design or development of the goods for Buyer, including all proprietary rights in the foregoing ("Intellectual Property") shall be Buyer's sole property, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in the Intellectual Property. All copyrightable works that Seller creates or develops in the course of Seller's performance of the services or Seller's design or development of the goods for Buyer shall be the sole property of Buyer, and Seller assigns, and agrees to assign, to Buyer all right, title and interest that Seller now has or in the future acquires in it and in all copyright rights in it. Seller shall sign and deliver to Buyer all assignments and other documents, and Seller shall take all other actions, that Buyer requests for the purpose of perfecting Buyer's ownership of and title to such Intellectual Property and in any such copyrightable work. If the goods or their design are subject to any pre-existing patent rights or other proprietary rights that Seller holds, then Seller grants to Buyer an irrevocable, non-exclusive, royalty-free license of the patent rights and other proprietary rights to the extent necessary to enable Buyer to modify, repair or rebuild any or all of the goods. This license is in addition to all licenses impliedly granted to Buyer as a purchaser of the goods. Seller shall not use Buyer's name or any trademark, trade name, service mark or trade dress that Buyer owns or that is licensed to Buyer or to any affiliate of Buyer, without Buyer's express, written consent, and Seller shall not sell to anyone other than Buyer any goods bearing any such trademark, trade name, service mark or trade dress.

AG. GOVERNMENTAL DECLARATION. If a governmental agency declares that any material included in any of the goods is, or if Buyer at any time believes in good faith that any such material may be, unsafe or unfit for the intended use of the goods, then, without limiting other rights and remedies that are available to Buyer under these Terms of Purchase or applicable law, (1) Seller shall give Buyer written notice of the declaration and shall furnish to Buyer copies of the declaration and of all relevant notices, documents and correspondence, (2) Seller shall stop including the material in the goods, (3) Buyer may terminate the order or the Contract, without liability to Seller, by giving written notice to Seller, which shall be effective immediately or on any later date that the notice specifies, (4) if Buyer does terminate, then Buyer's obligations under the Contract shall terminate immediately and Buyer shall not have an obligation to pay Seller damages or other compensation by reason of the termination, (5) without limiting other remedies that Buyer may exercise, Buyer shall have the right to recall (i.e. purchase or repurchase) any or all of the goods from its customers and end-users and any others having possession of the goods, and Seller shall reimburse Buyer for all costs that Buyer incurs in doing so and shall assist Buyer in the recall, to the extent that Buyer requires Seller to do so, (6) if Seller demonstrates to Buyer's satisfaction that there is a safe and fit substitute material that conforms to all of the requirements of the Contract and that Seller can and will use the substitute in the goods, then Buyer shall have the right, but no obligation, in Buyer's sole discretion, to reinstate the Contract and to require Seller to perform in accordance with the Contract, except that Seller shall use the substitute material, and (7) whether or not Buyer terminates and/or reinstates the Contract, Seller shall pay to Buyer an amount equal to all damages that Buyer incurs by reason of the declaration by the governmental agency or such good faith belief by Buyer and any resulting recall or delay in performance and/or any termination of the Contract by Buyer.

AH. ATTORNEYS' FEES: In any suit or action brought to enforce any term, condition, or covenant herein, or to recover damages arising from any breach of this contract, the losing party shall pay to the prevailing party reasonable attorneys' fees and all other costs and expenses which may be incurred by the prevailing party in any such suit or action and in any reviews thereof and appeals therefrom.

AI. LAW: The laws of the Province of Ontario and the federal laws of Canada applicable therein shall govern the Contract, and the venue of any action brought hereunder may be laid in or transferred to the non-exclusive jurisdiction of the courts of the Province of Ontario. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Purchase Terms.

AJ. INTENDED USE: Unless otherwise stated, the goods ordered are to have an intended usage in the manufacture, construction, modification, maintenance, repair and/or serving of the company's products and facilities.

AK. ENGLISH LANGUAGE: The parties agree that these Terms of Purchase and all related documents be drafted and construed in English; les parties ont exigé que cet acte, ainsi que tous les documents s'y rapportant, soient rédigés en anglais.

October 2012

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