GENERAL PURCHASE ORDER TERMS AND CONDITIONS

1. Applicability.
   • (a) This purchase order is an offer by AERO Specialties, Inc. (the “Buyer”) for the purchase of the goods or services specified on the face of this purchase order (the “Goods” or “Services”) from the party to whom the purchase order is addressed (the “Supplier”) in accordance with and subject to these terms and conditions (the “Terms”); together with the terms and conditions on the face of the purchase order (the “Order”). This Order, together with these Terms and any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Supplier’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions of sale or any other document issued by Supplier in connection with this Order.
   • (b) These Terms apply to any repaired, replacement Goods, and intellectual drawings provided by Supplier hereunder.
   • (c) Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.

2. Acceptance.  This Order is not binding on Buyer until Supplier accepts the Order in writing or starts to perform in accordance with the Order.
3. Delivery Date.  Supplier shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise later agreed in writing by the parties (the “Delivery Date”).  If this Order is for Services, the Supplier shall provide the Services as described in this Order specified in the Order or as otherwise agreed in writing by the parties (the “Services Delivery Date”).  If no delivery date is specified, Supplier shall deliver the Goods within 10 calendar days of Supplier’s receipt of the Order.  Timely delivery of the Goods is of the essence.  If Supplier fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Supplier and Supplier shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier’s failure to deliver the Goods on the Delivery Date.
4. Delivery Location.  All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer. If this Order is for Services, all Services shall be performed during normal business hours at the address specified in the Order or as otherwise instructed by Buyer.
5. Shipping Terms.  Delivery shall be made in accordance with terms on the face of this Order.  Supplier shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other documents necessary to release the Goods to Buyer.  The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Order.
6. Title and Risk of Loss.  Title passes to Buyer upon delivery and acceptance of the Goods to the Delivery Location.  Supplier bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
7. Packaging. All goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Supplier must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Supplier’s expense.
8. Amendment and Modification.  No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer.
9. Inspection and Rejection of Nonconforming Goods. All Goods and Services are subject to Buyer’s right of inspection and rejection on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are defective or otherwise do not conform to the descriptions and specifications delivered in connection with in the Purchase Order or otherwise communicated to Supplier in writing. If Buyer rejects any portion of the Goods and/or Services (as applicable), Buyer has the right, effective upon written notice to Supplier, to: (i) rescind the Purchase Order in its entirety; (ii) accept the defective and/or non-conforming Goods and/or Services (as applicable) at a reasonably reduced Price; or (iii) reject the non-conforming Goods and/or Services (as applicable) and require the replacement or reperformance (as applicable) thereof.If Buyer requires replacement or reperformance of non-conforming Goods and/or Services (as applicable), Supplier will, at its expense, promptly replace or reperform the non-conforming Goods and/or Services (as applicable) and pay for all related expenses, including, but not limited to, transportation charges for the return of the non-conforming Goods and the delivery of replacement Goods. If Supplier fails to timely deliver replacement Goods or reperform Services (as applicable), Buyer may replace the non-conforming Goods and/or Services (as applicable) with goods and/or services (as applicable) from a third party and charge Supplier the cost thereof and terminate the Purchase Order for cause.Any inspection or other action by Buyer under this Section will not reduce or otherwise affect Supplier’s obligations under the Purchase Order, and Buyer will have the right to conduct further inspections after Supplier has carried out its remedial actions. Acceptance by Buyer will not occur unless and until (i) with respect to Goods installed by Supplier, any acceptance tests or programs described in the Purchase Order or attachments thereto are completed to Buyer’s satisfaction, as evidenced by an acceptance certificate signed by Buyer, (ii) with respect to any Services performed by Supplier, such Services are completed to Buyer’s satisfaction, as evidenced by any acceptance certificate signed by Buyer, or (iii) with respect to Goods not installed by Supplier, Buyer has not notified Supplier, within thirty (30) days following receipt of the Goods by Buyer, that Goods are defective or otherwise do not conform to Specifications.
10. Price.  The price of the Goods is the price stated in the Order (the “Price”).  If no price is included in the Order, the Price shall be the price set out in Supplier’s published price list in force as of the date of the Order.  Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees.  No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
11. Government Contracts. If Buyer advises Supplier that Goods or Services supplied under the Purchase Order are necessary, in whole or in part, to the performance of a government contract, Supplier agrees to comply with all applicable provisions of that government contract as follows: To the extent not exempt, Supplier shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.
12. Anti-Bribery Compliance. Supplier acknowledges that Buyer is subject to the U.S. Foreign Corrupt Practices Act, the UK Bribery Act and anti-bribery and anti-corruption laws in various other jurisdictions. Supplier warrants that it will (a) comply in all respects with such laws, rules and regulations related thereto, including the comparable laws of all jurisdictions where it or its agents are conducting business, (b) provide written certification of its compliance with the foregoing when asked by Buyer, and (c) cooperate with Buyer and its designees at Supplier’s expense in any inquiry or investigation of Supplier or its agents regarding their conduct or alleged conduct relating to compliance or failure to comply with any of the foregoing.
13. Conflict Minerals. With respect to any and all Goods (if any) delivered under the Purchase Order, Supplier warrants that such Goods will at no time contain any “conflict minerals” as such term is defined in the Dodd-Frank Wall Street Reform and Consumer Protection Act, including, without limitation, columbite-tantalite (coltan), cassiterite, gold, wolframite or their derivatives, or any other mineral or its derivatives determined by the U.S. Secretary of State to be financing conflict in the Democratic Republic of the Congo (DRC). Supplier will immediately notify Buyer if at any time the foregoing representation becomes inaccurate or incomplete.
14. Payment Terms.  Supplier shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms.  Buyer shall pay all properly invoiced amounts due to Supplier within 30 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith.  All payments hereunder must be in US dollars.  In the event of a payment dispute, Buyer shall deliver a written statement to Supplier prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item.  Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. The parties shall seek to resolve all such disputes expeditiously and in good faith. Supplier shall continue performing its obligations under the Order notwithstanding any such dispute.
15. Child Labor and Forced Labor. Supplier warrants that it does not employ children, prison labor, indentured labor, bonded labor or use corporal or other forms of mental and physical coercion as a form of discipline. Moreover, Supplier agrees that it will not conduct business with vendors employing children, prison labor, indentured labor, bonded labor or who use corporal punishment or other forms of mental and physical coercion as a form of discipline. In the absence of any national or local law, Buyer and Supplier agree to define “child” as less than 15 years of age. If local minimum age law is set below 15 years of age, but is in accordance with exceptions under International Labor Organization (ILO) Convention 138, the lower age will apply. Buyer has the right to audit Supplier’s premises to ensure compliance with this warranty.
16. Warranties.  Supplier warrants to Buyer that all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications [drawings, designs, samples and other requirements specified by Buyer]; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights.  These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer.  These warranties are cumulative and in addition to any other warranty provided by law or equity.  Supplier also agrees to assign all manufacturer warranties to Buyer.  Supplier shall deliver all instruction, certifications and use brochures, along with warranty documentation, at the time of delivery.   Any applicable statute of limitations runs from the date of Buyer’s actual discovery of the noncompliance of the Goods with the foregoing warranties.  If Buyer gives Supplier notice of noncompliance with this Section, Supplier shall, at its own cost and expense, promptly replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Supplier and the delivery of repaired or replacement Goods to Buyer.
17. General Indemnification.  Supplier shall defend, indemnify and hold harmless Buyer and Buyer’s parent company, their/its subsidiaries, affiliates, successors or assigns and its/their respective directors, officers, shareholders, employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the products purchased from Supplier or Supplier’s negligence, willful misconduct or breach of the Terms. Supplier shall not enter into any settlement with respect to such Losses without Buyer’s and Indemnitee’s, or an authorized representative thereof, prior written consent.
18. Intellectual Property Indemnification.  Supplier shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Supplier enter into any settlement without Buyer’s and Indemnitee’s, or an authorized representative thereof, prior written consent.
19. Insurance.  During the term of the Order, Supplier shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $500,000 with financially sound and reputable insurers.  Supplier shall provide Buyer with a certificate of insurance from Supplier’s insurer evidencing the insurance coverage. Supplier may provide an annual Certificate. The certificate of insurance shall name Buyer as an additional insured.  Supplier shall provide Buyer with 30 calendar days’ advance written notice in the event of a cancellation or material change in Supplier’s insurance policy.  Except where prohibited by law, Supplier shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.
20. Compliance with Law.  Supplier is in compliance with and shall comply with all applicable laws, regulations and ordinances.  Supplier has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Supplier shall comply with all export and import laws of all countries involved in the sale of Goods under this Order.  Supplier assumes all responsibility for shipments of Goods requiring any government import clearance.  Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
21. Termination.  Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on five calendar days’ prior written notice to Supplier.  In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Supplier, either before or after the acceptance of the Goods, if Supplier has not performed or complied with any of these Terms, in whole or in part.  If the Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Supplier.  If Buyer terminates the Order for any reason, Supplier’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.
22. Limitation of Liability.  Nothing in this Order shall exclude or limit (a) Supplier’s liability under any section of this Agreement, or (b) Supplier’s liability for fraud, personal injury or death caused by its negligence or willful misconduct. Each party’s maximum liability to the other party shall not exceed the greater of $100,000 or the aggregate amount actually paid or payable under this Order, including any costs and attorneys’ fees incurred in enforcing any portion of this Agreement.
23. Attorneys’ Fees and Costs. In any litigation, arbitration, or other proceeding by which one party either seeks to enforce its rights under this Agreement (whether in contract, tort, or both) or seeks a declaration of any rights or obligations under this Agreement, the prevailing party shall be awarded its reasonable attorney fees, and costs and expenses incurred.
24. Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving.  Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
25. Confidential Information.  All non-public, confidential or proprietary information of the Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Supplier, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing.  Upon Buyer’s request, Supplier shall promptly return all documents and other materials received from Buyer.  Buyer shall be entitled to injunctive relief for any violation of this Section.  This Section shall not apply to information that is: (a) in the public domain; (b) known to the Supplier at the time of disclosure; or (c) rightfully obtained by the Supplier on a non-confidential basis from a third party.
26. Force Majeure.  Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”).  Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances.  Supplier’s economic hardship or changes in market conditions are not considered Force Majeure  Supplier shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order.  If a Force Majeure Event prevents Supplier from carrying out its obligations under the Order for a continuous period of more than 5 business days, Buyer may terminate this Order immediately by giving written notice to Supplier.
27. Assignment.  Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer.  Any purported assignment or delegation in violation of this Section shall be null and void.  No assignment or delegation shall relieve the Supplier of any of its obligations hereunder.
28. Relationship of the Parties.  The relationship between the parties is that of independent contractors.  Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties and neither party shall have authority to contract for or bind the other party in any manner whatsoever.  No relationship of exclusivity shall be construed from this Order.
29. No Third-Party Beneficiaries.  This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
30. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Idaho without giving effect to any choice or conflict of law provision or rule (whether of the State of Idaho or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Idaho.
31. If either party brings against the other party any lawsuit or like proceeding arising out of this Agreement or its subject matter, that party may bring that lawsuit or like proceeding only in the Fourth District Court for the State of Idaho, in and for the County of Ada, and each party hereby submits to the exclusive jurisdiction of that court for purposes of any such proceeding.
32. Notices.  All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing.  All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
33. Severability.  If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
34. Survival.  Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Set-off, Warranties, General Indemnification, Intellectual Property,  Indemnification, Insurance, Compliance with Laws, Confidentiality, Governing Law, and Survival.
35. Headings. The section headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement.