1.        General

A.       This Purchase Order (“Order”), together with the agreements, specifications or other documents noted herein, if any (“Additional Documents”), and including these Purchase Order Terms and Conditions, constitutes the COMPLETE AND FINAL AGREEMENT of TOMASCO mulciber, Inc. (“Buyer”) and the vendor or seller to whom this Order is addressed (“Seller”) and may not be added to, modified, superseded or altered except by written agreement or modification signed by Buyer's authorized representative, notwithstanding any additional or other proposals or terms and conditions which may now or in the future appear on Seller's invoices, quotations, acknowledgments or other forms (notification of objection thereto being given hereby), and notwithstanding any acceptance of shipments, payments or other similar acts of Buyer.

B.       Prompt acceptance of this Order by returning an acknowledgment copy hereof is requested but, in any event, any shipment, delivery, acceptance of payment or other tender of performance of Seller shall be deemed as Seller’s assent to and acceptance of these Terms and Conditions.

C.       The Additional Documents are intended to be incorporated herein by and as supplemental to this Order.

2.        Performance

A. Buyer shall have the right at any time to change this Order as to specifications, delivery, packaging or means of shipments.  Seller's receipt of Buyer’s notice of change without response received by Buyer within ten calendar days or shipment or other performance reflecting the change, whichever occurs first, shall be Seller's acceptance of the change without any price or other adjustment to this Order.  Seller shall make no change in the goods or any material, services or labor covered hereby (all, whether or not physical property or goods, the “Goods”) without Buyer's prior written consent, whether the change is by departure from specifications, by change in design, manufacture, process, machinery, dies and molds, standard or method, or by change in material or composition, whether any such change is at the initiative of Seller or its supplier.

B. Time and quantity are the essence of this Order. Unless otherwise specified, delivery times specified are the times of   delivery of the Goods at Buyer’s designated place of delivery or destination.

C. Seller shall pack, mail, label and ship all Goods in an appropriate and suitable manner selected by Seller which will ensure the lowest transportation cost for which Buyer is responsible, if any, in the absence of specific instructions contained herein.  Buyer’s count and/or measure of the Goods will be final as to all shipments not accompanied by packing list.  Seller shall inform Buyer immediately of any occurrence which will or is expected to result in any delvery at any time or in any quantity not specified in this Order and also of corrective measures which Seller has taken to minimize the effect of such occurrence.

D. Seller may not assign this Order or payment of any sums due hereunder.

E.     Seller shall maintain appropriate public liability, including product liability, insurance and also workers' compensation insurance covering all employees and will provide certification of such insurance as may be requested by Buyer (Buyers failure so to request shall not be a waiver of this requirement.)

F.      To the extent that, in connection with the Goods or otherwise, Seller's employees, associates, consultants, agents or other representatives (“Seller's Agents”) are on or present at any premises of Buyer, Seller shall be and is responsible for the acts and omissions of Seller's Agents within or about Buyer's premises and agrees to indemnify and hold Buyer harmless from liability for any claims or damages to property or injuries or death to persons arising out of acts or omissions of Seller's Agents in performance hereunder or other actions at Buyer's premises, including without limitation (1) the failure of any of Seller's Agents to comply with all applicable rules and regulations (Buyer’s and otherwise) governing security, maintenance and safety at or about Buyer's premises, (2) any claim against Buyer by or on behalf of any of Seller's Agents for injury or otherwise, or (3) any claim against Buyer resulting from Seller's failure to maintain workers' compensation or other public or private insurance with respect to any of Seller’s Agents.  In furtherance of the foregoing, Seller hereby expressly waives any and all statutory and/or constitutional immunity to which, but for this waiver, it might be entitled (i) as an employer in compliance with the State of Ohio's workers' compensation laws or (ii) under any other employee benefit statutes or similar laws of any jurisdiction.

G. In the event that any claims, demands, proceedings or lawsuits are made or brought against Buyer relating to the Goods or to Seller's performance hereunder or to the trade names, trademarks, copyrights or patents and/or are based upon unfair competition by reason of sale or use of Seller's Goods by Buyer, Seller shall hold Buyer free and harmless, respond to and defend all claims and actions against Buyer, pay all cost of response to and defense against any claims, demands, proceedings or lawsuits, including any attorney's fees, and indemnify and hold harmless Buyer for any costs incurred by Buyer in connection therewith.

3. Seller's Warranties

A.       Seller warrants that the Goods, including material and work, furnished hereunder shall be of the highest grade and quality unless otherwise specified by Buyer in writing; shall not be less than merchantable and fit for the particular purpose(s) known by or disclosed to Seller as applicable thereto; shall meet specifications, drawings, or standards agreed upon or samples submitted or approved by Buyer; and shall conform to the Additional Documents.

B.       Seller warrants that Seller and the Goods will comply with all applicable federal, state and local laws, regulations, rules, ordinances, orders and the like, including but not limited to those relating to the protection of the environment and/or the handling, use, labeling, transportation and disposal of the Goods, and will be in compliance with all standards and agreements incorporated and made a part of this Order.  Payment by Buyer shall not constitute an acceptance of Goods or a waiver of any rights of Buyer hereunder.

C.       In the event that any Goods are not in compliance with any applicable federal, state, or local laws, regulations, rules, orders and the like, or not in compliance with any standard or agreement incorporated herein, now existing or hereafter enacted or amended, or are otherwise defective hereunder, Buyer may (without limitation or exclusion of any other right of Buyer) return the defective Goods to Seller, who will (1) refund and return to Buyer its costs plus freight to Buyer's warehouse or facility and freight for return to Seller or (2) (at Buyer's option) repair, correct or replace the defective Goods at Seller's cost and expense.

4. Price, Taxes, Transportation, Payment

A.       Unless otherwise specified herein, all prices shall be F.0.B. Buyer's designated place of delivery (destination), inclusive of applicable taxes, excises, duties, quotation fees and any other governmental impositions on or related to the production, sale or transportation of the Goods, in compliance with any ceiling or other limitation of price established by any governmental authority, and subject to increase only with prior written consent of Buyer.

B.       Buyer and Seller will cooperate upon request in obtaining and furnishing such certificates or other evidence of inapplicability of or exemption from any sales, excise or other taxes to which either of the parties may be entitled.

C.       Unless otherwise specified herein, the price of the Goods shall be payable on or before the 30th day of the calendar month following the month of the Buyer's acceptance of the Goods for which payment is to be made.  Notwithstanding the foregoing, to the extent Buyer chooses or is forced to expend amounts due to any breach of Seller of the terms of this Order, Buyer may offset such amounts from the price of the Goods.

5.        Force Majeure

Either Buyer or Seller may suspend performance during the occurrence of an Excusable Delay, which shall mean and include any delay not occasioned by the fault or negligence of the delayed party and which results from the acts of God or public enemy, restrictions, prohibitions, priorities or allocations imposed by governmental authority, embargoes, floods, fires, typhoons, earthquakes, epidemics, unusually severe weather, delays of similar nature or governmental causes, and strikes or labor disputes (of or involving the delayed party's employees only).  An Excusable Delay does not include lockout, shortage of labor, lack of or inability to obtain goods (including the Goods) or raw materials, fuel or supplies or any other industrial disturbance.  Nothing contained in this paragraph shall limit Buyer’s rights hereunder in any way except that, in the event of Seller's Excusable Delay, Seller shall not be liable for Buyer’s incidental or consequential damages resulting from that delay.

6.        Buyer's Property, Patents, Trade Secrets

A.       Unless otherwise specified in a separate written agreement between Buyer and Seller, all tools, tooling, equipment, dies and jigs, molds, drawings specifications and other material of every description furnished to Seller or paid for by Buyer shall be and remain the sole property of Buyer, shall be plainly marked and/or otherwise clearly identified by Seller as “Property of TOMASCO mulciber, Inc.,” shall be stored separate and apart from Seller's property, shall be treated as confidential and used so as to prevent disclosure inconsistent herewith, shall not be used except pursuant to this Order, shall be subject to Buyer's inspection at any time during business hours and immediate possession on demand (and Seller specifically waives, as consideration for this Order, any lien or other possessory right with respect thereto) and, in any event, shall be returned to Buyer simultaneously with final shipment or termination under this Order.  In furtherance of the foregoing, Seller will promptly cooperate with Buyer in executing and/or filing any document which Buyer deems necessary or appropriate to protect Buyer’s interests in any of Buyer's property.

B.       Any patented or unpatented knowledge or information concerning either Buyer's or Seller's products, production or other methods, processes, scheduling, sources of supply, customers, marketing, or otherwise which Buyer or Seller may disclose to the other attendant or incident to this Agreement shall be deemed to have been disclosed as part of the consideration hereunder and shall not be given other use, and shall be retained in confidence by the party to which disclosed. To the extent such information or knowledge is represented through samples, writings, drawings or other tangibles, such items shall be returned to the disclosing party simultaneously with the termination or completion of this Order or at any time upon demand.  Seller will give Buyer specific written notice of the confidential nature of any such knowledge or information (and of any license or other agreement relating to the use or dissemination thereof) embodied in the goods prior to delivery thereof.

C.       In the absence of Buyer's and Seller’s written agreement to the contrary, all inventions, products, processes, apparatus or designs, patentable or unpatentable, conceived, invented or originated by either Buyer or Seller prior to the date hereof shall remain the property of the conceiving, inventing or originating party.

D.       Seller has granted and does grant to Buyer, and to Buyer’s affiliates and subsidiaries, such nonexclusive, fully paid (or royalty free), irrevocable licenses under any applicable patent, copyright or other property right to use, modify, publish or distribute the Goods or any right therein and necessary incidents thereto.

7.        Advertising

Without Buyer's prior written consent, Seller shall not advertise or publish in any manner that Seller has contracted to or has furnished Goods to Buyer.

8.        Termination

A.            Buyer may at any time terminate this Order in whole or in part by written notice, whereupon Seller shall terminate work pursuant to the terms of such notice and without any further liability of Buyer or Seller.

B.            If Goods ordered hereunder are made specifically for Buyer and cannot be sold to other purchasers, Seller shall, upon termination by Buyer, promptly advise Buyer of the quantities of applicable work and material on hand or purchased prior to termination and the most favorable disposition that Seller can make thereof.  Seller will comply with Buyer's instructions regarding disposition of such work and material. All claims by Seller based on such termination must be asserted in writing and in full, within 60 calendar days from the date of notification of the termination, for the amount of the order price of finished work and the cost to Seller, excluding profit or losses, of work in process and raw material, less, however (1) the agreed value of any items used or sold by Seller with Buyer’s consent and (2) the reasonable value or cost (whichever is higher) of any defective, damaged or destroyed work or material and any items sold or used by Seller without Buyer's consent.  Buyer will make no payments for finished work, work in process or raw materials fabricated or procured by Seller unnecessarily in advance or in excess of Buyer's delivery requirements.  The payment provided for in this clause shall constitute Buyer’s only liability in the event this Order is terminated as provided herein.  The foregoing provisions of this section shall not apply to any termination by Buyer for default of Seller or under the following provisions of this section.

C.       To the extent this Order covers items normally carried in inventory by Seller (as distinguished from items specially made to Buyer’s specifications), Buyer shall not have liability for any termination of this Order, in whole or in part, prior to actual shipment or for any termination, except that, within ten days after receipt of Goods by Buyer, its liability shall be limited to returning said Goods and reimbursing Seller for direct costs of handling and transportation.

9. Inspection and Testing

A.       In order that Buyer can ensure quality control, Seller will submit to Buyer all production, functional and quality control test reports and other data as may be requested by Buyer from time to time concerning the Goods and grants to Buyer the right to enter Seller’s premises during any reasonable business hours to make such inspections and examinations as Buyer may deem appropriate and agrees to fully cooperate with Buyer in effecting such inspections and examinations.

B.       All Goods received shall be subject to final inspection and testing by Buyer.  Such inspection and testing shall be made within a reasonable time after receipt, irrespective of day of payment, and any items which are not fully satisfactory to Buyer may be rejected by notice to Seller.  Said rejected items are to be replaced with applicable items within the fastest reasonable time after notice of rejection or, at the option of Buyer exercised by written notice, the quantity of Goods may be reduced by the number of rejected items.

10.     Miscellaneous

A.       All covenants and agreements contained in this Order by or on behalf of any of the parties hereto shall bind and inure to the benefit of the respective successors and assigns whether so expressed or not, except that Seller shall have no right to assign its rights hereunder or any interest herein without the prior written consent of the Buyer.

B.       No amendment, modification, termination or waiver of any provisions of this Order given pursuant or attendant hereto, and no consent to any departure by either party therefrom, shall in any event be effective unless the same shall be in writing and signed by officers of both parties, and then such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given.  No notice to or demand on Seller in any event, case or occurrence, shall of itself entitle Seller to any other or further notice or demand in any similar or other circumstances.

C.       The titles of the various sections of this Order are solely for convenience and are not part of the Order for purposes of interpreting the provision hereof.

D.       Terms employed in this Order, unless otherwise defined, shall be deemed to have the meanings set forth in the Revised Code of Ohio, specifically the Uniform Commercial Code as enacted therein.

E.       Unless otherwise specified, the terms “ herein,” “hereunder,” “hereto,” “herewith,’ and words of similar import refer to this entire Order including Additional Documents; that singular includes the plural, and conversely.

F.        This Order and any other document or instrument delivered or to be delivered hereunder are being executed and delivered in and are intended to be performed under the laws of the State of Ohio.  If any provisions hereof is or becomes invalid or unenforceable under any law of mandatory application, it is the intent of the parties hereto that such provision will be deemed severed and omitted herefrom, the remaining portions hereof to remain in full force and effect as written.

FRPUR-002v1