Terms and Conditions

---

TERMS AND CONDITIONS 

1. Terms of Agreement. These Standard Terms and Conditions relate to the Purchase Order to which they are attached or appear on the reverse side thereof. This Purchase Order is only an offer to enter into a contract. For this Purchase Order to be a valid and effective offer, it must be executed by a duly authorized officer or agent of CLEBAE Infinique Tooling and Molding (“Buyer”). Buyer may revoke, amend, or modify this offer at any time prior to acceptance by the seller of Products to which this Purchase Order is issued (“Seller”). Any of the following acts constitute Seller’s acceptance of this Purchase Order and all terms and conditions herein: (a) Seller’s execution and return of an acknowledgement copy of this Purchase Order or Seller’s own acknowledgement form, (b) Seller’s commencement of performance pursuant to this Purchase Order, (c) Seller’s delivery of any of the Products ordered hereunder (“Products”), or (d) Seller’s acceptance of payment by Buyer hereunder. Acceptance of this Purchase Order is expressly limited to and conditioned upon acceptance of the terms set forth herein, which terms cannot be altered or amended without Buyer’s written consent. Any different, additional or conflicting terms or conditions set forth in Seller’s invoice are expressly objected to by Buyer. Acceptance shall be binding upon Seller and Seller’s successors, assigns and delegates. 

2. Delivery Terms. The Seller shall cause the Products to be delivered at the Buyer’s facility on the date set forth in the Purchase Order. The Products shall not be delivered before or after the delivery date without the Buyer’s prior written consent. All deliveries of Products ordered by the Buyer shall be F.O.B. destination, freight pre-paid unless otherwise mutually agreed by Buyer and Seller in writing. Notwithstanding any prior inspections and irrespective of the F.O.B. point named herein, Seller will bear all risk of loss, damage or destruction to the ordered goods until final acceptance of the goods by Buyer at destination. Seller will bear the same risk with respect to any goods rejected by Buyer. Buyer, however, will be responsible for any loss occasioned by the gross negligence of its employees acting within the scope of their scope of employment. Seller shall package the Products in a manner that will prevent damage during shipping and ship the Products in accordance with the Buyer’s instructions. No separate charge shall be made for cartons, wrapping, packing, boxing, crating and delivery, unless otherwise agreed to in writing. Each shipment of Products shall include separate packing slips showing (a) Buyer’s purchase order number; (b) Buyer’s part number and revision level for each Product shipped, if applicable; (c) a description of the Products; (d) individual serial numbers of the Product, if applicable; and (e) the total quantity of Products shipped. Unless otherwise agreed to by Buyer in writing, Seller’s failure to effect conforming delivery shall entitle Buyer to revoke any acceptance, to cancel this Purchase Order without liability to Buyer, to receive a full refund and expense all or any part of a nonconforming delivery and to hold Seller accountable for any loss or additional costs incurred. Buyer’s receipt or acceptance of all or part of the nonconforming delivery shall not constitute a waiver of any claim, right or remedy Buyer has under this Purchase Order. 

3. Overshipments. Buyer will pay only for maximum quantities ordered. Buyer will hold overshipments at Seller's risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Seller’s expense. 

4. Notice of Delays. Whenever any event delays or threatens to delay the timely performance of this purchase order, Seller will immediately notify Buyer of such event and furnish all relevant details. Receipt by Buyer of such notice will not constitute a waiver of the due dates set forth in a Purchase Order. 

5. Specifications. The Seller will supply or manufacture the Product in accordance with the specifications, if any, provided by the Buyer. The Seller will not make any changes in such specifications or make any changes in any components or processes used in manufacturing the Product previously agreed to by the Buyer without the Buyer’s prior written consent. Seller will not quote for sale to others, without Buyer's written authorization, any goods purchased under Buyer's specifications or drawings. 

6. Inspection. All Products are subject to inspection and rejection upon or after receipt by Buyer. If any Products are defective or not in conformity with this Purchase Order, in addition to its remedies under the Uniform Commercial Code, Buyer may reject or revoke acceptance of such defective or non-conforming Products, require correction, or accept them with an equitable adjustment in price. All Products shall be received subject to Buyer’s inspection, testing, approval and acceptance at our premises notwithstanding any inspection or testing at Seller’s premises, any prior payment for such products or acknowledgement of receipt of packaging slips or bills of lading. Materials rejected or not conforming to this Purchase Order shall be returned at the Seller’s risk and expense, including transportation and handling costs. 

7. Warranty. In addition to any other express or implied warranties (including those set forth in Section 9 below), Seller warrants that all Products delivered hereunder will be merchantable, new, suitable for the uses intended, of the grade and quality specified, free from all defects in material, manufacture, workmanship and design (except to the extent such design is furnished by Buyer), will conform to all samples, drawings, descriptions and specifications furnished and will be free of liens and encumbrances. Seller further expressly warrants that all services performed under this contract will be free from defects in workmanship. These warranties shall remain in effect as to each Product furnished, serviced and/or repaired hereunder. All warranties shall be construed as conditions as well as warranties and shall not be deemed to exclude Seller’s standard warranties or other rights or warranties which the Buyer may have or may obtain, to the extent they do not override or limit the rights granted Buyer herein. In addition to any other rights granted hereunder to Buyer, Buyer will have any and all rights available to it for breach of warranty under the Uniform Commercial Code. If after notice of breach of warranty Seller fails promptly to replace or repair any defective Product, Buyer may seek to do so without further notice and Seller shall reimburse Buyer for all costs or expenses incurred thereby. 

8. Changes. Buyer may at any time by written change order make changes in the Products or services to be furnished hereunder or their quantities or delivery dates. If the cost of, or time required for, furnishing the articles or services ordered hereby is increased or decreased as a result of such change order, an equitable adjustment in the contract price and/or delivery schedule will be made in the change order. No claim by Seller for such an adjustment will be valid unless asserted within ten (10) days from the date of receipt by Seller of the notification of change; provided, however, that such period may be extended upon the written approval of Buyer. If a price and/or delivery adjustment is not included in the change order, no increase in price or delay in delivery will be allowed unless authorized by Buyer in writing. Seller shall notify Buyer not less than six (6) months in advance of (i) any design changes in specifications which will affect form, fit or function or (ii) Seller's intent to discontinue any Products. Any such changes shall be made only as mutually agreed by Buyer and Seller. 

9. Termination. Buyer may cancel the whole or any portion of this Purchase Order in the event of (i) Seller’s failure to make deliveries as provided in this Purchase Order (ii) Seller’s breach of any of the terms hereof, including the warranties, (iii) insolvency of Seller, (iv) filing of a voluntary petition in bankruptcy, (v) filing of an involuntary petition to have Seller declared bankrupt provided it is not vacated within thirty (30) days from the date of such filing, or (vi) the execution by Seller of any assignment for the benefit of creditors. Buyer shall have no obligations to Seller in respect of the cancelled portion of this contract and Buyer’s liability shall be limited to payment for the delivered portion of this contract at the rate specified on the face hereof (reflecting quantity prices as though this Purchase Order had gone to full completion). If, as a result of default of performance by the Seller, this contract is terminated in whole or in part and it is necessary to procure any of the specified products or services elsewhere, then Seller will be liable for any reprocurement charges which exceed the amount which would have been due to Seller if he had satisfactorily completed this contract. Seller agrees that any delay in delivery or other failure to perform, resulting from Seller’s failure to comply with the provisions of the Occupational Safety and Health Act of 1970 and the standards and regulations issued thereunder, shall not be deemed an excusable delay or otherwise excuse Seller from performance as required. These remedies shall be cumulative and in addition to any other or further remedies provided in law or in equity. 

Buyer may, for its convenience, terminate work under this Purchase Order, in whole or in part, at any time by giving notice to Seller in writing. Seller will thereupon immediately stop work on this Purchase Order or the terminated portion thereof and notify any subcontractors to do likewise, and shall take all steps reasonable to minimize the occurrence of costs allocable to work covered by this purchase order. Seller shall be entitled to reimbursement for its actual costs incurred up to and including the date of termination; such costs to be determined in accordance with recognized accounting principles. Seller shall also be entitled to a reasonable profit on the work done prior to such termination at a rate not exceeding the rate used in establishing the original purchase price. The total of such claim shall not exceed the pro rata portion of this Purchase Order, which is cancelled. 

10. Indemnification. Seller shall indemnify and hold harmless Buyer and its affiliated entities and their employees, officers, directors, agents and owners, and their successors and assigns (including the Buyer, the “Buyer Parties”) from any and all costs, losses, claims, damages, expenses or liabilities of any kind including those arising out of any product recall (including attorney’s fees and court costs and disbursements) (“Damages”) and shall defend all suits, actions, proceedings, investigation, demand, arbitration or mediation (“Claim”) at its sole expense resulting from or relating to the breach of any representation, warranty or agreement made by Seller in this Purchase Order or any amendment or modification hereof, including, without limitation, Seller’s obligation to deliver the Products. 

Buyer will notify Seller in writing of any Claim made against Buyer by a third party, in due course, allow Seller to control the defense of a Claim if doing so does not create a conflict for Seller’s legal counsel, and reasonably cooperate, at Seller’s expense, with Seller in the defense and any related settlement negotiations. In addition to any defense provided by Seller, Buyer may, at its expense, retain its own counsel. If Seller does not promptly assume Buyer’s defense against such Claim or if such a conflict is reasonably deemed by Buyer to exist for Seller’s legal counsel, Buyer may undertake its own defense at Seller’s expense. Seller will not settle or compromise any Claim without Buyer’s prior written consent unless (i) the terms of such settlement or compromise release Buyer from any and all liability with respect thereto and (ii) no injunction or other equitable relief is issued against any of the Buyer Parties. 

11. Patents; Intellectual Property. Seller represents and warrants that the Products do not infringe any United States or foreign patent, trademark, trade secret or copyright, or any proprietary, intellectual property, industrial property, contract or other right held by any third party. Seller warrants all photography, artwork, film, digitized images and separations, sketches, layouts, audio (including analog, digital, music and dialogue) and any other similar material (collective, “Creative Works”) provided to Buyer by Seller is owned by Seller. Seller further agrees that Buyer may use said Creative Works in all advertising and communication media, including, without limitation, print, video, CD-Rom, DVD, television, cable, satellite, radio and internet, without restriction, or claim by any other party. 

12. Ownership of Tooling and other Material Management/Equipment. All tooling, equipment and material furnished to Seller by Buyer or specifically paid for by Buyer will remain the property of the Buyer. Such equipment while in the Seller’s custody or control, will be maintained in good working condition, reasonable wear and tear excepted, by Seller at Seller’s expense, held at Seller’s sole risk and will be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to Buyer. Such equipment will be delivered in good working condition, reasonable wear and tear excepted, to Buyer at the earlier of Buyer’s request or the termination or completion of this Purchase Order. Such equipment shall not be disposed of without prior written approval by Buyer. No use of Buyer’s equipment shall be permitted without prior written consent of Buyer. Seller shall not publish or display Buyer’s product manufactured by Buyer’s equipment, without prior written consent of Buyer. 

13. Proprietary Information. Seller agrees that all information contained in or reflecting designs, drawings, specifications, costs, volumes or otherwise submitted by Buyer to Seller under or pursuant to this Purchase Order is proprietary to the Buyer. Seller agrees that all such intellectual and industrial property, as well as the terms of this Purchase Order and the existence and content of the relationship between the Seller and Buyer, shall be treated as confidential, and shall not be used or disclosed by Seller, except as required in the performance of this or other Purchase Orders for Buyer or with the Buyer’s prior written consent. Nothing in this Purchase Order shall be construed as granting a license or right to Seller to derive works from or develop improvements based on any confidential information provided by Buyer. Any such derivative works or improvements shall be disclosed promptly to Buyer, and any and all industrial and intellectual property including patent, trade secret and other intellectual property rights embodied therein are assigned to and owned by Buyer. The foregoing will not apply to information (i) previously known to the recipient on a non-confidential basis, (ii) which is or becomes part of the public domain without breach of this obligation, or (iii) is received from a third party as a matter of legal right without breach of this obligation and any other confidential restrictions. Disclosure required by judicial process or other applicable law is not prohibited, but the party being requested to disclose shall first notify the other party of such request sufficiently in advance of such disclosure to allow such party to seek any protective order it deems appropriate. All confidential information will be returned to Buyer upon request. 

14. Price Warranty; Price Adjustments. Purchase Orders by Buyer are prepared based on Seller’s prices as specified by Seller in writing prior to the date of this Purchase Order, which may be modified by Seller notifying Buyer in writing ninety (90) days in advance of any proposed price changes, and in no event will a price increase be effective with respect to an order pending at the time of the increase. 

15. Compliance with Applicable Laws. Buyer is an Equal Opportunity Employer. Seller certifies that in performance of this Purchase Order, it has complied with all applicable governmental laws, ordinances, rules, regulations, programs, plans and orders including Executive Order 11246, the Vietnam Era Veterans Readjustment Assistance Act of 1974, the Rehabilitation Act of 1973, the Walsh Healy Act, Fair labor Standards Act, Occupations Safety and Health Act of 1970, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act and Executive Orders, or any other federal, state or local law, wherein such acts, provisions and orders may be applicable, including but not limited to specifically set forth OSHA standards. At Buyer’s request, Seller shall provide appropriate certificates of compliance. Seller shall obtain all permits or license required in connection with the manufacture, sale, shipment and installation of the Products. 

16. Assignment. Seller may not assign either its rights or obligations under this contract without the prior written consent of Buyer except that claims for monies due or to become due under this Purchase Order may be assigned by Seller provided that Seller shall supply Buyer promptly with two copies of any such assignments. 

17. Governing Law; Venue; Jurisdiction. This agreement shall be governed by and interpreted in accordance with the laws of the State of California. Seller hereby irrevocably consents to the jurisdiction of the federal and state courts of California with respect to the adjudication of any case or controversy arising under or in connection with this Agreement, and agrees that such courts will be the proper and only forum in which to adjudicate any such cause or controversy. If a case is brought in California state courts, Seller agrees that Sacramento County, California is the proper venue for such case. If there is exclusive federal jurisdiction, the United States District Court for the Northern District of California is the proper venue for such case. Seller hereby irrevocably waives any objection based on any alleged impropriety of venue or personal jurisdiction of such courts and hereby agrees not to institute an action arising under or relating to this Agreement in any other court. Seller acknowledges that its agreement to submit to the venue and jurisdiction of the courts of California is a material inducement for Buyer to execute and perform this Agreement and that a final judgment rendered by such court in any such case or controversy shall be final and binding on Buyer and may be enforced in any other jurisdiction. Nothing in this section or otherwise shall affect Buyer’s right to bring any action or proceeding against Seller or its property in the courts of such jurisdiction as Buyer shall decide. 

18. Discount. Time in connection with any discount offered by Seller will be computed from the latest of (i) the scheduled delivery date, (ii) the date of actual delivery, or (iii) the date an acceptable invoice is received. For the purpose of earning the discount, payment will be deemed to have been made on the date of mailing of Buyer's check. 

19. Right of Inspection. Buyer shall have the right to inspect the premises of Seller used in connection with the production of the Products purchased. Seller will use cooperate with any such audit and address any non-conformances indicated in the results of any such audit. 

20. Invoices; Payment; Setoff. Seller will submit invoices within 15 days of all shipments showing the following information as applicable: purchase order number, item number, description of item, size of item, quantity of item, unit prices, each applicable tax, extended totals, and any other information specified elsewhere herein. A Bill of Lading or express receipt must accompany each invoice. Buyer’s standard payment terms are net 30 days, which are applicable unless different terms are agreed to in a writing signed by Buyer. Buyer will make payment, per the applicable terms, measured from the date of receipt of invoice or delivery whichever is later. Buyer may, at its option, in lieu of making any payment when due against any invoice of Seller, setoff any amount then owed to Buyer by Seller for any reason. 

21. Service. The parties to this contract recognize that the provisions of the Uniform Commercial Code do not normally apply to the performance of services as distinguished from transactions in Products. However, the parties explicitly agree that for purposes of this Purchase Order the provisions of the Uniform Commercial Code shall apply, and any dispute arising under this contract shall be resolved in accordance with the provisions of the Code. 

22. Entire Agreement. This Purchase Order, including these Standard Terms and Conditions and all attachments, specifications and where applicable, any written agreement signed by the Buyer and Seller, constitutes the complete and final agreement between the parties and supersedes all prior negotiations and agreements between the parties concerning its subject matter, except that if Seller has executed a confidentiality agreement in favor of Buyer, it shall not be superseded or amended by this purchase order. 

23. Taxes. Unless otherwise provided in this Purchase Order or agreed to in writing by the parties hereto, the price includes, and Seller shall pay, all excise, sales, use, transfer or other taxes, federal, state and local in connection with the sale or delivery of the Products. 

24. Insurance. Seller warrants and represents that it has adequate general liability insurance (including product liability insurance) to protect Buyer in performance of this Purchase Order in an amount of at least $1,000,000 or such greater amount as may be specified by Buyer. Such insurance will name Buyer as an additional named insured and/or include a Seller’s Broad Form endorsement covering Buyer with respect to bodily injury or property damage arising out of Seller’s Products. At the Buyer’s request, Seller shall furnish to Buyer a certificate of such insurance which will provide for at least thirty (30) days prior notice to Buyer of cancellation or material change. Liability insurance limits shall not be construed to limit Buyer’s right to indemnification hereunder. 

25. Notices. Notices and communications under the Purchase Order shall be deemed given to either party at the address set forth on the Purchase Order: (a) upon the expiration of five (5) business days after the date of deposit in the U.S. mail if sent by registered mail, return receipt requested; or (b) upon the next business day if sent by recognized overnight supplemental delivery service; (c) the same business date if notice is delivered personally, or (d) upon electronic confirmation of transmission if sent by facsimile.