Purchase Agreement Terms and Conditions

1. PRICING This is a firm price order.

2. TERMS OF PAYMENT Invoices shall be dated no earlier than date of shipment or delivery of service. Buyer will pay non-discountable invoices based on the mutually agreed terms set forth in the purchase order and based on the date of receipt of invoice, required delivery date, acceptance, or the date any applicable non-conformity is resolved, whichever date is later.

3. ATTACHMENTS Documents designated by Buyer in the body of the Purchase Order, including supplemental terms and conditions, if any, are incorporated by reference the same as if set out in full therein.

4. CHANGES The Buyer reserves the right at any time to issue a written change order or amendment to the Purchase Order.

5. TERMINATION Buyer may terminate the Purchase Order for its convenience, in whole or in part, at any time prior to shipment by (written or electronic) notice to Seller. Upon receipt of such termination notice, Seller shall promptly comply with the directions contained in such notice and shall, as required, (a) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work, and (b) continue the performance of any part of the work not terminated by Buyer.

6. ASSIGNMENT Seller may not assign, transfer, or subcontract this Purchase Order or any right or obligation hereunder without Buyer’s written consent.

7. EXCUSABLE DELAY Fires, floods, strikes, accidents, shortages, or other causes beyond the reasonable control of the parties, which prevent Seller from delivering, or Buyer from receiving, any of the goods and services covered by this Purchase Order, shall suspend deliveries until the cause is removed, subject, however, to Buyer’s right of termination for convenience under Paragraph 5.

8. PACKAGING, PACKING LIST, AND BILL OF LADING AND DELIVERY Seller shall be responsible for proper packaging, loading, and tie-down to prevent damage during transportation. Buyer’s weight and/or count will be accepted as final and conclusive on all shipments not accompanied by a packing list. Delivery to Buyer shall be construed as the on dock date at Buyers facility (required date) as noted on Purchase Order.

9. INSPECTION/TESTING All goods and services furnished hereunder will be subject to inspection and test by Buyer and will be subject to Buyer’s final inspection and approval within a reasonable time after delivery. It is the Seller’s responsibility to ensure that all products reflect the latest revision levels. If Seller delivers non-conforming goods, Buyer may at its option and at Seller’s expense: (i) reject and return the goods for credit or refund; (ii) require Seller to promptly correct or replace the goods; or (iii) correct the goods. Seller shall not redeliver corrected or rejected goods without disclosing the former rejection or requirement for correction. Seller shall disclose any corrective action taken. Repair, replacement and other correction and redelivery shall be completed within the time as Buyer may reasonably direct. Payment for any goods or services shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected goods or services.

10. NEW MATERIALS The work to be delivered hereunder shall consist of new materials, no used, reconditioned, or counterfeit (refer to SAE standard A6174). Buyer reserves the right to require Seller to provide evidence of a process to prevent the use of counterfeit materials.

11. WARRANTY By accepting this Purchase Order, Seller warrants that the goods and services furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings, and data, and Seller’s descriptions, promises, or samples, and that such goods will be fit for the Buyer’s intended use, provided Seller has reason to know of such use, and that Seller will convey good title to the goods, free and clear from all liens, claims, and encumbrances. Seller warrants that goods or services covered by this Purchase Order shall not infringe any patent, design, mask work, copyright or trademark, of any third party, either directly or contributory. Seller agrees to indemnify Buyer and hold Buyer harmless from and against all liability, loss, damage and expense, including reasonable counsel fees and costs of litigation, resulting from any claim of infringement and any litigation relating thereto. Where applicable, the Seller warrants that the goods covered by this Purchase Order are in compliance with all laws, regulations, rules, and orders relating to the importation of goods into the United States, the exportation of goods out of the country of origin, the transit of goods through intermediate countries and the sale and use or foreign made goods in the United States. Seller further warrants that it has obtained all permits, licenses, and certifications necessary for the goods to be exported out of the country of origin, imported in the United States, delivered to Buyer and used or sold within the United States. Seller’s warranty shall run to Clarke Valve, its successors, assigns and authorized customers only.

12. LIMITATION OF LIABILITY IN NO EVENT SHALL CLARKE VALVE BE LIABLE FOR ANTICIPATED PROFITS OR INCIDENTAL OR CONSEQUENTIAL DAMAGES. CLARKE VALVE’S LIABILITY ON ANY CLAIM OF ANY KIND FOR LOSS OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH OR RESULTING FROM THIS AGREEMENT OR FROM THE PERFORMANCE OR BREACH HEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS OR SERVICES OR UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. CLARKE VALVE SHALL NOT BE LIABLE FOR PENALTIES OF ANY DESCRIPTION.

13. TITLE AND RISK OF LOSS Title to and risk of loss or damage to the Products shall pass from Seller to Clarke Valve when the Products are delivered in good order and condition at the Clarke Valve named point of destination.

14. CONFIDENTIALITY Seller shall consider all information disclosed by Clarke Valve or prepared for Clarke Valve to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than performing this Purchase Order, without the written consent of Clarke Valve.

15. RESOLUTION OF CONFLICTS OR INCONSISTENCIES OCCURRING IN THE ORDER It is Seller’s responsibility to comply with this Purchase Order and all referenced documents, and to clarify with Buyer any inconsistencies or conflicts in any parts of the Purchase order or referenced documents.

16. BUYER’S TERMS AND CONDITIONS APPLY Acknowledgment of the Purchase Order, shipment of any goods, or commencement of work pursuant to the Purchase Order shall be deemed an acceptance of these General Terms and Conditions. These terms and conditions supersede any submitted by Seller in any proposal or acknowledgment.

17. WORK PERFORMED ON BUYER’S OR BUYER’S CUSTOMER’S PREMISES If Seller’s work under the Purchase Order involves operations by Seller on the premises of Buyer or one of Buyer’s customers, Seller shall take all necessary precautions and such additional precautions as Buyer or Buyer’s customer may prescribe to prevent the occurrence of any injury to persons or property during the progress of such work and, except to the extent that any such injury is due solely and directly to Buyer’s or Buyer’s customer’s negligence, shall indemnify Buyer against all claims, liability, damage, or loss (including expenses and attorneys’ fees) which may result in any way from any act or omission of the Seller, or Seller’s agents, employees, or contractors; and shall maintain such public liability, property damage, and employer’s liability and compensation insurance as will protect Buyer and Buyer’s customer from said risks and from any claims under any applicable worker compensation and occupational disease acts.

18. INDEMNIFICATION Seller shall defend, indemnify and hold Clarke Valve harmless from and against all damages, claims, liabilities and expenses (including attorney fees) arising out of or resulting in any way from any defect in the Products purchased hereunder, from any act or omission of Seller and from all damages suffered as a result of the failure of the Products to comply with all state, federal and local laws, rules and regulations. Notwithstanding the foregoing to the contrary, neither party shall be liable hereunder or required to defend, indemnify or hold harmless the other, to the extent any such damages, claims, liabilities or expenses arise from misconduct or negligence of, or a violation of any applicable law by, the other.

19. INSURANCE Seller will maintain adequate and customary types and amounts of insurance coverage and agrees to furnish certificates of insurance upon request showing that it has sufficient insurance coverage.
All insurance required under this Agreement shall provide that Seller’s insurance shall be primary to and noncontributory with any and all other insurance maintained by or otherwise afforded to Clarke Valve. Except where prohibited by law, Seller’s insurers shall be required to waive all rights of recover or subrogation against Clarke Valve. Compliance by Seller with the insurance requirements shall not in any way affect Seller’s duty to indemnify Clarke Valve.

20. DISPUTES/ATTORNEY’S FEES Any dispute that arises under or is related to this purchase order that cannot be settled by mutual agreement of the parties may be decided by a court of competent jurisdiction, and the parties agree to and consent to Jurisdiction in Rhode Island.. Pending final resolution of any dispute, Seller shall proceed with performance of this purchase order according to Buyer’s instructions so long as Buyer continues to pay amounts not in dispute. The prevailing party in any action filed regarding this order shall be entitled to recover its attorney’s fees as a part of the claim.

21. ANTI-KICKBACK CLAUSE Gratuities/Kickbacks. Seller agrees not to provide or offer any representative, officer, director or employee of the Buyer, or any member of such persons family, any favors, gifts, gratuities or favorable treatment for the purpose of securing this purchase order or any future business opportunities.

22. GOVERNING LAW; SEVERABILITY; MODIFICATION This Purchase Order shall be governed by the laws of the State of Rhode Island, U.S.A, except for its provisions regarding principles of conflicts of laws, and except to the extent that federal communications law shall apply. Any court action arising under this order shall be venued in Rhode Island U.S.A., in either federal or state court, as is appropriate. The courts sitting in, or having principal jurisdiction over such countries where the Products have been or are to be delivered, or the courts of the State of Rhode Island, if the conflict arises in a transaction in which the Products have been or are to be delivered in the US, shall have exclusive jurisdiction of all disputes hereunder.

23. WAIVER Either party’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or either party’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.