KJL Fasteners

Entire Agreement. None of the terms or conditions contained in this contract may be added to, modified, superseded or otherwise altered except by a written instrument signed by an officer of KJL Fasteners (“buyer”) and delivered by buyer to seller. Each shipment received by buyer from seller shall be deemed to be only upon the terms and conditions contained in this contract, except as they may be so added to, modified, superseded or otherwise altered in writing and signed by the party affected by the change, notwithstanding any terms or conditions that may be contained in any acknowledgment, confirmation, invoice or other form used by seller and notwithstanding buyer’s act of accepting or paying for any shipment or similar act of buyer. All specifications, drawings and data submitted to seller with this contract are hereby incorporated herein and made a part hereof. Seller’s commencement of work on the goods subject to this contract or shipment of such goods, whichever occurs first, shall be deemed an effective mode of acceptance of this contract.

Delivery. Time is of the essence in the performance of this order and if delivery of items is not made in the quantities and the times specified, or rendering of services is not completed at the times specified, buyer reserves the right without liability, and in addition to its other rights and remedies, to take either or both of the following actions: (a) direct expedited routing of times (the difference in cost between the expedited routing and the order routing costs shall be paid by the seller); (b) terminate this order by notice effective when received by seller as to stated items not yet shipped or services not yet rendered and to purchase substitute items or services elsewhere and charge the seller with any loss incurred.

Packaging and Shipping. Seller agrees to properly pack, label, insure and ship goods in accordance with the requirements stated on the purchase order, using the designated carriers and at the lowest possible transportation cost. Seller agrees to make only those charges for handling, packaging, storage or transportation of goods as expressly permitted by this contract or any other buyer purchase order issued pursuant hereto and provides packing slips with each shipment noting buyer’s purchase order on each slip. Seller shall reimburse buyer for all expenses incurred by buyer as a result of improper packing, labeling, routing or shipping.

Seller’s Warranties. In addition to all warranties prescribed by law or otherwise provided by seller, seller warrants that all goods purchased hereunder will be free from defects in material and workmanship, will conform to specifications and accepted samples, will be merchantable and, if ordered for a particular purpose, will be fit for such purpose. Seller also warrants that to the extent the goods are not manufactured pursuant to detailed specifications furnished by buyer, they will be free from defects in design. Seller agrees that these warranties will survive acceptance of the goods and shall inure to the benefit of buyer, its successors, assigns, customers and ultimate users of the goods. Changes. Seller must notify Buyer of any changes in specifications, designs or drawings.

Risk of Loss. Risk of loss or damage to goods shall be on seller until the goods have been delivered to and accepted by buyer, notwithstanding any other terms contained herein or otherwise attempted to be imposed by seller. All goods will be received by buyer subject to its right of inspection and rejection. Seller shall be allowed a reasonable period of time to inspect the goods and to notify buyer of any nonconformance with the terms and condition of this contract. Buyer may reject any goods which do not conform to the terms and conditions of this contract. Goods so rejected may be returned to seller, or held by buyer, at seller’s risk and expense , and, in either event, the cost of transportation, shipping, unpacking, examining, repacking, and reshipping and like expenses shall be charged to seller. If any such inspection or test is made on seller’s premises, seller shall furnish all reasonable facilities and assistance for a safe and convenient inspection or test without additional charge to buyer.

Seller’s Indemnification and Insurance. (a) Seller indemnifies and agrees to defend and hold harmless buyer, its successors, assigns, employees, agents, customers and users of its goods or products from and against all claims, losses, penalties, damages (including incidental and consequential damages) costs and expenses (including reasonable attorneys’ fees) arising out of (i) any alleged or actual infringement or contributory infringement of any letters patent, copyrights, trade secrets or trademarks or service marks or other intellectual property rights by reason of the use, sale or lease of any goods or products purchased hereunder, excepting unpatented staple articles of commerce and goods manufactured in accordance with buyer’s design; or (ii) any alleged or actual defects in the goods, breach by seller of any of the warranties contained herein, or seller’s timely failure to deliver the goods purchased hereunder; or (iii) any alleged or actual failure of the goods to include necessary safety features or otherwise conform to the requirements of any federal, state or local health or safety law, standard regulation or ordinance, when used in a manner and for a purpose intended by seller; or (iv) seller’s breach of this contract. Seller shall, at its own expense, if so requested by buyer, defend all claims, proceedings or suits against any buyer, in which any of the aforesaid claims are alleged, provided seller is duly notified of such claims, proceedings or suits. (b) Seller agrees to procure and maintain, at its own expense, products liability and other appropriate insurance covering seller’s obligations hereunder, and including buyer as one of the name insured’s, such insurance to be of a type, in an amount, and written by a company reasonably satisfactory to buyer. Seller agrees to furnish evidence of said insurance satisfactory to buyer as buyer may request from time to time. All policies of insurance procured or maintained hereunder (i) shall provide that coverage there under shall not be terminated without ten (10) day’s prior written notice to buyer, and (ii) shall apply separately to each insured against whom claim is made or suit is brought and shall contain no provision which excludes coverage under a claim made by one insured under the policy against another insured under the policy.

Purchase Price. Goods will be billed by seller at the price set forth on the face side hereof, the price last quoted by seller or at seller’s price to other buyers at the date of shipment, whichever is lower. This order cannot be billed at a higher price than the price last quoted or billed on last invoice, unless buyer agrees in writing to such higher price. Seller is responsible for all taxes related to this sale, except taxes assessed on buyer’s net income.

Invoices, Payments and Discounts. Unless otherwise provided, terms of payment shall be net 30 days from the later of the following: (a) receipt of the seller’s correct invoice, or (b) delivery of the goods/completion of services. Payments shall be deemed to have been made as of the date of mailing sellers payment.

Quantity. Seller shall furnish the entire quantity ordered hereunder and said quantity cannot be varied by seller unless buyer agrees in writing to accept a different quantity. Buyer reserves the right to reject any unauthorized quantities and to return same to seller at seller’s risk and expense. Seller further agrees to indemnify buyer for any expenses or losses incurred by buyer as a result of seller’s failure to furnish the entire quantity ordered hereunder.

Buyer’s Changes. Buyer reserves the right at any time to make changes in the following: (a) methods of shipment or packing; (b) place of delivery; and/or (c) time of delivery. If any such change causes an increase or decrease in the cost of or the time required for performance of this contract, an equitable adjustment shall be made in the purchase price or delivery schedule, or both. Any claim by seller for adjustment under this paragraph shall be deemed waived unless buyer is notified in writing within ten (10) days from receipt by seller of the change.

Buyer’s Termination. (a) Buyer may at any time for its convenience terminate this contract, in whole or in part, by written, facsimile, email, or verbal notice confirmed in writing if (i) the seller fails to make delivery of goods or perform services within the time specified, or (ii) the seller fails to perform any other requirements of this contract and does not cure such failure or provide a plan for cure of such failure, acceptable to buyer within ten (10) days after receipt of notice from the buyer specifying such failure. If the buyer so terminates all or any part of this contract, the buyer may repurchase similar goods elsewhere and the seller shall be liable to the buyer for any excess cost. The seller shall not be liable for any such excess costs if seller’s failure to perform arises out of any causes beyond reasonable control and without the fault or negligence of the seller. Seller shall notify buyer in writing if it appears that such causes will result in failure or delay. Buyer shall have the right to terminate this contract or any part thereof without further cost or liability to buyer in the event of a filing of a voluntary or involuntary petition to have seller declared bankruptcy; the appointment of a receiver or trustee for seller; the execution by seller of an assignment for the benefit of creditors; or the seller’s inability to promptly provide buyer with reasonable assurance of timely performance within ten (10) days of such event.

Compliance with Laws. In fulfilling this order, seller shall comply with all applicable laws and governmental regulations and orders, federal, state, local and foreign.

The buyer has the right to enter and inspect any or all of the work included in this order at the supplier’s plant.

Confidentiality. All information furnished by buyer to seller is confidential and seller shall not disclose any such information to any other person, or use such information for any purpose other than performing this contract, unless seller obtains written permission from buyer to do so. This paragraph shall apply to drawings, specifications, or other documents prepared by seller for buyer in connection with this contract. Seller shall not advertise or publish the fact that buyer has contracted to purchase goods from seller, nor shall any information relating to the contract be disclosed to third parties without buyer’s written permission. Unless otherwise agreed in writing, no commercial, financial or technical information disclosed in any manner or at any time by seller to buyer shall be deemed secret or confidential and seller shall have no rights against buyer with respect thereto.

Assignment; Subcontracting. This contract may not be assigned or subcontracted by seller, in whole or in part, without the prior written approval of the buyer or any other buyer corporate officer.

Deduction or Set-off. All claims for money due or to become due seller from buyer shall be subject to deduction or set-off by buyer by reason of any counterclaim arising out of this or any other transaction with seller.

Buyers Delays. Buyer may delay delivery or acceptance occasioned by reason of force majeure or other causes beyond its control. Seller shall hold such goods at the direction of buyer and shall deliver them when the cause affecting the delay has been removed. Buyer shall be responsible only for seller’s direct additional costs in holding the goods or delaying performance of this contract at buyer’s request. Causes beyond buyer’s control shall include, without limitation, government action or failure of the government to act where such action is required, terrorist action or imminent threat, cessation of commercial transportation systems, strike or other labor trouble, fires or unusually severe weather.

Seller's Employees. In the event that seller’s obligations hereunder require or contemplate performance of services by seller’s employees or persons under contract to seller, to be done on buyer’s property, or on property of buyer’s customers. Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of the buyer. Seller shall maintain all necessary insurance coverage’s for such employees and services, including public liability and workers’ compensation insurance. Seller shall indemnify, save harmless and defend buyer (and buyer’s customers) from any and all claims or liabilities arising out of such work.

Waiver. Buyer may waive performance of any condition and treat it as a warranty, but waiver by buyer of any condition with reference to any shipment shall not be construed as a waiver of that condition for subsequent shipments.

Remedies. All rights and remedies of buyer herein stated are nonexclusive and in addition to other rights and remedies provided by law.

Controlling Law Venue. This contract shall be deemed to have been executed and delivered in Loyalton, California. Except as otherwise provided herein, this contract and all rights and obligations hereunder, including matters of construction , validity and performance, shall be governed by the internal laws of the State of California including the Uniform Commercial Code as enacted in that jurisdiction, without giving effect to that jurisdiction’s choice of law principles.