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  • Terms and Conditions of Purchase

  • TERMS AND CONDITIONS OF PURCHASE

    1. General. This writing constitutes an offer or counteroffer by DBCI, LLC (“Buyer”) to purchase from Seller, under the terms and conditions herein, the Goods/Services (as defined below) set forth in Buyer’s purchase order, the parties Memorandum of Understanding, or Supply Agreement (each a “Sales Document” and together with these Terms and Conditions of Purchase, the “Agreement”). “Goods/Services” as used herein shall mean the goods, products, equipment, materials, parts, assemblies, drawings, documents, or services provided by Seller covered under the Agreement. Additional capitalized terms used throughout these Terms and Conditions of Purchase have the meaning set forth in the applicable Sales Document. 

    1. Acceptance of Offer. This writing is not an acceptance of any offer made by Seller. All sales by Seller to Buyer are expressly limited to, and made conditional upon, Seller’s acceptance of these Terms and Conditions of Purchase. All terms and conditions, if any, proposed by Seller are hereby rejected. No such additional or different terms and conditions will be of any force or effect, unless specifically agreed to in writing by Buyer. The Agreement, including all items incorporated by reference, constitutes the final and entire understanding between Buyer and Seller with respect to the Goods/Services and no agreement or other understanding purporting to add to or modify the Agreement will be binding unless agreed to in writing by the parties. 

    1. Price Terms. 

    1. Terms. The Goods/Services will be delivered to Buyer at the price(s) set forth in the Agreement. Seller represents that the prices set forth in the Agreement are complete, and no additional charges of any type will be added without Buyer’s written consent. 

    1. Discounts. If applicable, all discount periods set forth in the Agreement will be computed from the date Buyer receives a final invoice for the Goods/Services. Cash discounts will be based on full amount of invoice less freight charges and taxes. 

    1. Invoices and PaymentsAs full consideration for the Goods/Services, and the assignment of rights to Buyer as provided herein, Buyer shall pay Seller (i) the amount agreed upon and specified in the Agreement, or (ii) Seller’s quoted price on date of shipment (for the Goods), or the date the Services were started (for the Services), whichever is lower. Seller shall not issue any invoices prior to Seller’s delivery of the Goods/Services. Prices shall include, and Seller shall be liable for and pay, all taxes imposed on or measured by this Agreement, except for applicable sales and use taxes. Seller shall state all state and federal excise, sales, and use taxes separately on the invoice. Prices shall not include any taxes that Buyer has furnished evidence of exemption. Where required by law, Buyer may deduct from any payments due to Seller hereunder such taxes as Buyer shall be required to withhold and pay such taxes to the relevant tax authorities. Each invoice submitted by Seller shall be provided to Buyer within ninety (90) days of delivery of the Goods or completions of the Services and reference the Agreement. Buyer reserves the right to return all incorrect invoices. Buyer shall receive a two percent (2%) discount on the invoiced amount for all invoices that are submitted more than ninety (90) days after delivery of the Goods or completion of the Services. Buyer shall pay the invoiced amount within (60) days after receipt of a correct invoice. 

    1. Transportation Charges. Seller shall state all transportation charges that Seller is entitled to receive reimbursement separately on the invoice with applicable freight bill receipt attached thereto. Transportation charges shall not include packing, crating, freight, and/or any other shipping services unless so specified in the Agreement. No shipping insurance charges are permitted unless authorized by Buyer in writing. Any excess charges resulting from the use of unauthorized transportation will not be reimbursed by Buyer. Seller shall release rail or truck shipment at the lowest valuation permitted in governing tariff or classification. 

    1. Duty Drawback Rights. Seller shall inform Buyer of the existence of any customs duty rights that are transferrable from Seller to Buyer, and upon Buyer’s request, shall transfer such rights to Buyer and supply any necessary documents to Buyer required to obtain such duty drawback. 

    1. Delivery. 

    1. Transportation. All Goods/Services shall be packaged using best commercial practices to prevent damage and deterioration. Seller shall reimburse Buyer for all expenses incurred due to improper packaging. Seller shall route shipments in accordance with Buyer’s instructions. Order number(s) must appear on all correspondence, shipping labels and documents, including packing slips, bills of lading, air bills, and invoices. All packing slips shall include Buyer’s part number (where applicable), description, quantity, and a statement of completion (partially filled or completely filled). 

    1. Risk of Loss. Shipment will be performed as required by the Agreement. If a shipment of Goods both originates and ends within the United States and the Agreement specifies FCA (location) with title and risk of loss passing to Buyer upon receipt of the Goods by Buyer’s designated carrier. If the Agreement specifies an Incoterm as the applicable delivery term, risk of loss for the Goods/Services shall pass as defined by such Incoterm (as published by the International Chamber of Commerce). 

    1. Shipping Releases. All shipments and deliveries must be in accordance with the quantities and schedules stated in the Agreement. Time is of the essence in performance of the Agreement. Seller shall not make advanced, late, short, or excess deliveries without Buyer’s approval. Buyer is not obligated to pay for or accept excess quantities, materially untimely, or under shipments and such shipments may be returned at Seller’s expense and risk. If Buyer elects to accept any delivery that does not conform to the schedule or quantity terms of the Agreement, Buyer may, in its sole discretion (i) charge Seller a handling fee and/or (ii) defer payment until scheduled delivery dates. 

    1. Delays. Seller shall promptly notify Buyer of any (i) known or anticipated delay or failure to meet any specifications of the Agreement or (ii) delays Seller believes to be caused by Buyer’s failure to meet any of its obligations under the Agreement. Such notice shall include a proposed revised schedule, but such notice and proposal or Buyer’s receipt thereof shall not constitute a waiver of Buyer’s rights and remedies hereunder. If Seller is unable to deliver as scheduled, Buyer may require delivery by fastest transportation service and any transportation charges resulting therefrom shall be prepaid by Seller. 

    1. Inspection and Acceptance of Goods/Services 

    1. Seller shall perform inspections and tests necessary to determine that the Goods/Services conform to the requirements of the Agreement. At Buyer’s request, Seller shall supply First Article Inspection Reports (“FAIR”) for the first shipment of any new Goods or parts thereof. Whenever a drawing of a Product or part thereof is revised, a FAIR shall be gain required for all characteristics affected in the revision.   

    1. Acceptance of Goods/Services shall be subject to inspection or testing by Buyer and Buyer’s customers to the extent practical at reasonable times and placesIf any inspection or test is made on Seller’s or its supplier’s premises, Seller, without an additional charge to Buyer, shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. No inspection, test, delay, or failure to test or failure to discover any defect shall relieve Seller of any of its obligations or impair Buyer’s rights or remedies under the Agreement. Payment by Buyer shall not constitute final acceptance. Defective Goods/Services will be returned at Seller’s risk and expense at full invoice price, plus transportation charges, if any, and no replacement of defective Goods/Services shall be made unless agreed to in advance by Buyer. Buyer may reject and return any portion of any shipment of Goods/Services that may be defective or fail to comply with applicable specifications without invalidating the remainder of the order. 

    1. Changes. Buyer may request changes to the delivery schedule, quantities, place of delivery, packaging, shipping instructions, and specifications, subject to Seller’s approval, which shall not be unreasonably withheld. Any request change that affects the price of the Goods/Services, delivery schedules, or Seller’s ability to perform under the Agreement will be subject to an equitable adjustment. Seller shall immediately notify Buyer if an adjustment is anticipated by Seller. Seller shall deliver to Buyer, no later than 30 days after Buyer’s change request, a claim for a commercially reasonable equitable adjustment and any requested documentation supporting such claim. 

    1. Termination. 

    1. Convenience. Buyer may terminate the Agreement, in whole or in part, for any reason upon ten days’ advance written notice to Seller. Buyer shall compensate Seller for all Goods/Services produced and/or performed as of the effective date of the termination, unless agreed to otherwise in writing. Seller shall provide Buyer with a settlement claim, which sets forth all costs for Goods/Services produced and/or performed as of the effective date of the termination, no later than 30 days after the effective date of the termination. In the event of partial termination, Seller will not be excused from performance of the non-terminated balance of the Goods/Services. 

    1. Cause. Buyer may terminate the Agreement immediately if any of the following events occur: (i) Seller fails to comply with any requirement or obligation under the Agreement, and fails to cure such requirement or obligation within ten days of Buyer’s notice to Seller of such compliance failure; (ii) Seller violates any applicable laws, regulations, statutes, ordinances, rules, orders, judgments, or permits applicable to produce and/or perform the Goods/Services (collectively, “Laws”); (iii) Seller becomes insolvent, files for bankruptcy, liquidates, or makes any assignment for the benefit of creditors; or (iv) receiver is appointed for Seller’s property. Upon such termination, Buyer will be relieved of all its duties and obligations under the Agreement, including without limitation, its obligation to pay Seller for Goods/Services produced and/or performed but not accepted by Buyer. Upon termination, Buyer may procure, as it deems appropriate, products or services similar to those that were to be provided under the Agreement, and Seller shall be liable to Buyer for the cost of such products or services in excess of the contract price.  

    1. Buyer’s Property. Unless otherwise agreed to in writing, all tools, equipment, documents, or other material in Seller’s possession that were furnished or paid for by Buyer shall always be and remain Buyer’s personal propertySeller shall not commingle Buyer’s property with Seller’s property or any third party or move Buyer’s property from Seller’s premises without Buyer’s prior written approval. Seller assumes risk of loss or damage of Buyer’s property while in Seller’s possession. Buyer may enter Seller’s premises at all reasonable times to inspect its property and Seller’s records related thereto. Seller agree to only use Buyer’s property when performing Seller’s obligations under the Agreement. 

    1. Advertising. Neither party shall disclose to the public or advertise in any way that the parties have agreed to do business with each other without the other party’s prior written consent. 

    1. Force Majeure. Buyer shall not be liable for any failure to perform including, but not limited to, failure to (i) accept performance of Services or, (ii) take delivery of the Goods, caused by circumstances beyond its control that make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, terrorism, pandemic, government action, accident, labor difficulties or shortage, or inability to obtain goods, equipment or transportation. 

    1. Warranties. 

    1. Express. Seller expressly warrants that all Goods/Services (i) will conform to all specifications, drawings, instructions, descriptions, and/or statements on containers or labels; (ii) will be free from defects in workmanship and material and shall be new and of the highest quality; (iii) will be delivered with title free and clear of any liens and encumbrances; (iv) will be merchantable; (v) will be adequately packaged, marked, and labeled; (vi) will be performed by Seller in a competent, workmanlike manner, and in accordance with industry standards; and (vii) will be manufactured in compliance with all applicable Laws. 

    1. SurvivalThese warranties shall survive any inspection, test, delivery, acceptance, use, and payment by Buyer and shall inure to the benefit of Buyer, its successors, assigns, customers, and the users of Buyer’s products. Buyer’s approval of Seller’s design, material, process, drawing, specifications, or the like shall not be deemed a waiver of the warranties set forth in Section 11. 

    1. Non-Conforming Product Remedy. If Seller breaches any of the express warranties set forth in Section 11 during the respective warranty period, Buyer may, at Buyer’s option: (i) retain the non-conforming Goods/Services, in whole or in part, with an appropriate adjustment in the price for such Goods/Services; (ii) require Seller to repair or replace the non-conforming Goods/Services at Seller’s sole expense, including all transportation and installation costs; or (iii) receive a refund for the price of the Goods/Services, including any applicable transportation costs. Seller shall make spare parts available to Buyer at Seller’s then-current price for a period of five years from the date of shipment of the Goods or complete performance of the Service. 

    1. Indemnification 

    1. Infringement. Buyer may return any Goods/Services and immediately terminate the Agreement for cause where a claim is made that Buyer’s sale or use of the Goods/Services infringes any alleged patent, design, trade name, trademark, copyright, or other intellectual property right of a third party. Seller shall indemnify, defend, and hold harmless, Buyer and its customers against any liability, loss, or expense, including costs and reasonable attorneys’ fees, arising out of any third party intellectual property right or unfair competition claim related to the Goods/Services.  

    1. Product Indemnity. Seller shall indemnify, defend, and hold harmless Buyer and its customers against any recalls, product withdrawals, claims, demands, liability, suits at law or in equity, loss, or expense, including reasonable attorneys’ fees, by reason of Seller’s breach of any representation, warranty, Laws, obligations, or requirement under the Agreement, including claims resulting from injury, illness, and/or death caused by use of the Goods/Services, unless caused by the sole negligence or misconduct of Buyer. 

    1. Defense of Claim. In the event of any such action or claim under Section 12, Buyer shall notify and tender the action to Seller, and Seller shall defend the action at its sole cost and expense. Buyer shall provide reasonable assistance to Seller in any defense, as Seller may request, at Seller’s expense. If Seller fails to assume such defense, Buyer may defend the action in the manner it deems appropriate, and Seller shall reimburse Buyer for all costs incurred in such defense, including payment of any settlement or judgment. 

    1. Injunction. Should Buyer’s or its customer’s use of any Goods/Services be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole cost and expense: (i) procure for Buyer the right to continue to use the Goods; (ii) replace or modify the Goods/Services to make it non-infringing, provided that the same function is performed by the replacement or modified Goods/Services; or (iii) if none of the foregoing is possible, refund Buyer the full amount paid for the infringing Goods/Services. 

    1. Compliance with Laws. Seller shall comply with all Laws, including without limitation, (i) the Fair Labor Standards Act of 1938, as amended, (ii) paragraphs 1-7 of Section 2 of Executive Order 11246 issued in 1965, as amended by Executive Order 11375 of 1967, and all rules and regulations pursuant thereto, (iii) the provisions of the affirmative action clause entitled “Employment of the Handicapped” contained in the regulations concerning Affirmative Action Obligations of Contractors and Subcontractors, 41 CFR 60-741.3, issued pursuant to the Vocational Rehabilitation Act of 1973, as amended by the Rehabilitation Act Amendments of 1974, (iv) the regulations providing for Veteran’s Employment Emphasis Under Federal Contracts, 41 CFR 60-250.4, (v) the Vietnam Era Veterans Readjustment Assistance Act of 1974, Public Law 93-508, as it amends 38 USC 2012 of the Vietnam Era Readjustment Assistance Act of 1972, (vi) the Age Discrimination in Employment Act of 1967 as amended in 1978, and all rules and regulations issued pursuant thereto, (vii) Subtitle IV of the Tariff Act of 1930 entitled “Countervailing and Anti-Dumping Duties. 

    1. Certificates; Disclosures. Seller shall provide Buyer with a certificate of origin for each Product/Good sold hereunder and such certificate shall indicate the origin rule that Seller used in making the certification as well as a list of all ingredients and materials incorporated in the Goods, the amount of such ingredients and materials, and information concerning any changes in or additions to such ingredients and materials (upon Buyer’s request)At Buyer’s request, a Certificate of Conformance stating the Goods conform to all order requirements shall accompany each shipment. Seller shall have available for review all sub-tier certifications for goods and processes that support the shipment. Without limiting the foregoing, on Buyer's written request, Seller shall provide to Buyer all information (in sufficient detail), with written certifications thereof, to enable Buyer to timely comply with all of Buyer's and Buyer's customers' due diligence, disclosure and audit requirements under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") and Rule 13p-1 and Form SD under the Securities Exchange Act of 1934, and all similar, applicable statutes and regulations, including due inquiry of Seller's supply chain (and certifications by such suppliers) identifying conflict minerals (as defined in Section 1502(e)(4) of the Dodd-Frank Act) contained in each Product/Good and the country of origin of such conflict minerals (or, following due inquiry, why such country of origin cannot be determined). For each shipment of Goods, Seller shall provide Buyer, in writing, sufficient advance warning and notice (in addition to including appropriate labels on Goods, containers, and packing) of any hazardous or restricted material that is an ingredient or a part of the shipment, together with such special handling instructions as may be necessary to advise logistics providers, handlers of the Goods, and personnel of how to exercise that measure of care and precaution that will comply with any applicable Laws and prevent bodily injury or property damage in the handling, transportation, processing, use, or disposal of the Goods, containers, and packing. 

     

    1. Insurance. Seller shall maintain insurance coverage in amounts not less than the following (i) Worker’s Compensation – Statutory Limits for the state or states that the Agreement is to be performed (or evidence of authority to self-insure); (ii) Employer’s Liability of $250,000; and (iii) Comprehensive General Liability (including Products/Completed Operations of $1,000,000 per person, $1,000,000 per occurrence (personal injury), and $1,000,000 per occurrence (property damage). Seller shall name Buyer as an additional insured on such policies. At Buyer’s request, Seller shall furnish endorsed certificates of insurance setting forth the amounts of coverage, policy numbers, and dates of expiration for insurance maintained by Seller. Such certificates shall provide that Buyer will receive 30 days’ prior written notice from the insurer of any termination or reduction in the amount or scope of coverage. Seller’s purchase of insurance coverage and the furnishing of certificates of insurance shall not release Seller of its obligations or liabilities under the Agreement. 

    1. Set Off. Buyer may set off any amount owing from Seller to Buyer or any of its affiliated companies against any amount payable by Buyer. 

    1. Limitation of Liability. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.   

    1. Remedies. Buyer’s rights and remedies shall be cumulative and in addition to any other rights or remedies provided by law or equity. The failure of Buyer to enforce at any time or, for any period of time, any of the provisions hereof shall not be construed to be a waiver of such provisions, nor the right of Buyer thereafter to enforce each and every such provision or similar provision 

    1. AssignmentSeller shall not assign, delegate, or subcontract any of its rights or obligations hereunder 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 Seller of any of its obligations hereunder. Buyer may at any time assign or subcontract any of its rights or obligations under the Agreement without Seller's prior written consent. 

    1. Confidentiality. All terms and conditions of this Agreement and all Confidential Information belonging to Buyer disclosed or obtained as a result of this Agreement shall remain confidential and shall not be disclosed to any third party or used by Seller for any reason (other than in furtherance of its obligations hereunder) without Buyer’s prior written consent. This provision shall survive the termination of this Agreement. “Confidential Information” means any commercial, financial, marketing, technical, or manufacturing information, or any intellectual property, owned or controlled by Buyer, or any other information that Seller should reasonably conclude is confidential, in any form or medium, whether disclosed orally, electronically, or in writing, together with any reproductions of such material in whole or in part in any form or medium. Seller agrees that any breach of Section 20 will result in irreparable harm with no adequate remedy at law and that injunctive relief is therefore appropriate to enforce the terms of this Section. 

    1. Notice. 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 the Agreement 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), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, 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. 

    1. Governing Law; Venue. The Agreement shall be construed and interpreted in accordance with the laws of the State of Georgia. All disputes involving the Agreement shall be adjudicated exclusively in the Circuit Court for the County of Carroll, Georgia, or the U.S. District Court for the Northern District of Georgia. 



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