Ohio Machinery Co. d.b.a. Ohio CAT Standard Procurement Terms and Conditions

IN THE EVENT SUPPLEMENTAL TERMS AND CONDITIONS ARE ATTACHED TO THIS PURCHASE ORDER, THOSE TERMS AND CONDITIONS ARE SPECIFICALLY INCORPORATED HEREIN, IN THE EVENT OF ANY INCONSISTENCY BETWEEN THE TERMS AND CONDITIONS CONTAINED ON THIS PURCHASE ORDER AND ANY SUPLEMENTAL TERMS AND CONDITIONS, THE PROVISIONS ON THE SUPPLEMENTAL TERMS AND CONDITIONS SHALL PREVAIL.

ACCEPTANCE AGREEMENT
Vendor’s absent written acceptance of this Purchase Order without amendment, commencement of service or shipment of the good, whichever occurs first, constitutes acceptance of this purchase order (“Order”) and all of its terms and conditions. This Order constitutes the entire agreement between Ohio CAT and Vendor and it specifically supersedes all prior or contemporaneous agreements, arrangements, representations and communications whether oral or written. If this order is for goods, Ohio CAT hereby objects to any terms proposed by Vendor in Vendors acceptance or acknowledgement of Ohio CAT’s offer which add to, vary from, or conflict with the terms of this order. Any such proposed terms shall not operate as a rejection of this offer but are deemed a material alteration, and this offer shall be deemed accepted by the Vendor without said additional or different terms. If this order shall be deemed an acceptance of a prior offer by Vendor, such acceptance is expressly limited to the terms contained within this Order.

PRICE
The goods shipped or services performed pursuant to this Order must not be invoiced at a higher price than shown on the face of this Order without the prior written consent of Ohio CAT. The invoice must itemize transportation charges, including foreign and inland freight, insurance and taxes separately, if applicable. If the price is omitted from the Order, the price shall be the lowest prevailing market price as determined by Ohio CAT. No charge will be allowed for packing, labeling, commissions, customs duties, storage, crating, express handling or travel unless indicated on this order. Payment terms are net thirty (30) calendar days from the date of a proper invoice unless there is a valid dispute. Electronic payment is permitted if agreed by the parties. Ohio CAT may set off any amount owing at any time from Ohio CAT to Vendor or any of its affiliates against any amount payable to Vendor by Ohio CAT.

DELIVERY
The time of delivery stated is of the essence for all Purchase Orders. The time specified is for delivery at an Ohio CAT facility unless otherwise stated in the order. If deliveries fail to meet the schedules specified in the order, Vendor shall be required to make express shipments, partial shipments, or both and Vendor will assume all excess shipping charges.

CONFIDENTIAL & PROPRIETARY INFORMATION
The existence and terms of this order and any and all information or data furnished by Ohio CAT to Vendor under this order in whatever form shall be deemed Ohio CAT Confidential Proprietary Information and shall remain the property of Ohio CAT, shall be kept confidential and shall be promptly returned to Ohio CAT upon Ohio CAT’s request. Vendor shall not disclose to any other person other than those within its organization with a need to know such Confidential Proprietary Information in the course of the performance of their duties and who are bound by a written agreement to protect the confidentiality of Confidential Proprietary Information without Ohio CAT’s prior written permission, any Ohio CAT Confidential Proprietary Information for any purpose other than performing this order. Vendor will promptly report to Ohio CAT any actual or suspected violation of the terms of this agreement and will take all reasonable further steps requested by Ohio CAT to prevent, control or remedy any such violation.

WARRANTIES
Vendor shall provide all labor, material, tools, equipment, personnel, and facilities necessary to provide the goods or perform the service described in this order, in strict accordance with its terms and conditions herein set forth and any schedules, specifications, drawings, Ohio CAT instruction books or service manuals, including but not limited to Ohio CAT guidelines and other documents specifically attached or referenced herein. Vendor expressly warrants that all goods or services provided under this order shall be merchantable, free from defects in material and workmanship, of the highest quality and shall conform to all applicable specifications and appropriate industry standards. If Vendor knows or has reason to know the particular purpose for which Ohio CAT intends to use the goods or service, Vendor warrants that such goods or services shall be for such particular purpose. Vendor agrees to re-perform at Vendor’s sole cost and expense any service not in compliance with the foregoing warranty. Vendor shall indemnify and hold Ohio CAT harmless for all damages arising out of any breach of these warranties. In addition to the warranties above, Vendor shall extend all warranties it received from its vendors to Ohio CAT and to Ohio CAT customers.

TERMINATION
Ohio CAT may terminate all or any part of this order at any time for its convenience, with or without cause, upon written notice to Vendor. Ohio CAT will pay a reasonable termination charge based on a percentage of the order price reflecting the percentage of work performed by Vendor prior to termination. Any claim for payment of such termination charges must be submitted in writing to Ohio CAT within thirty (30) calendar days of receipt of written notice of termination. Ohio CAT total liability for damages for cancellation of this Order shall not exceed the price allocable to the goods or services giving rise to the claim.

SUSPENSION
Ohio CAT may, with or without cause, order Vendor in writing to suspend performance of the Work, in whole or in part, for such period of time as Ohio CAT may determine. Ohio CAT shall not be liable for the cost of any unauthorized Services to be performed by Vendor or purchase orders placed for materials, equipment, subcontracts or other services during any such period of suspension. Unless otherwise agreed in writing, Ohio CAT shall not be responsible for any costs Vendor may incur as a result of any delay or suspension ordered by Ohio CAT.

INDEMNIFICATION
By acceptance of this order, Vendor agrees to indemnify Ohio CAT, its agents, employees, officers and directors, and its successors and assigns against all claims, judgments, decrees, costs and expense, and reasonable attorney’s fees incident to any proceeding which may be brought against Ohio CAT or its agents, distributors, customers, or other vendors based on a claim of alleged copyright, trademark, or patent infringement as well as for an alleged claim of unfair competition resulting from similarity in design, trademark or appearance of goods or services furnished under this order, unless the goods or services are of Ohio CAT design or formula. Vendor also agrees to indemnify Ohio CAT against all claims, judgments, decrees, costs and expenses including reasonable attorneys fees arising out of or resulting in any way from any breach of Vendor’s obligations hereunder, including but not limited to obvious or apparent defects or latent defects in the good or services provided pursuant to this Order or from any act or omission of Vendor, its agents, employees or subcontractor. Vendor agrees that it will, upon request of Ohio CAT and at Vendor’s own expense, defend or assist in the defense of any action which may be brought against Ohio CAT or its officers, directors, employees, agents, distributors, customers or other vendors for such infringement or claimed infringement or alleged claim of unfair competition. Ohio CAT agrees to notify Vendor promptly upon receipt of notice of infringement or information of such a suit having been filed. This indemnification shall be in addition to all other obligations under this Order.

MATERIAL, TOOLS AND EQUIPMENT
All tools, equipment, dies gauges, models, drawings or other materials paid for or furnished by Ohio CAT for the purpose of this order shall be and remain the sole property of Ohio CAT. Further, title to all work, whether completed or in the course of construction and to all materials on account of which any payment has been made by Ohio CAT, shall be vested in Ohio CAT. Vendor shall safeguard all such property while it is in Vendor’s custody or control; be liable for any loss or damage, use it only for Ohio CAT orders and return it to Ohio CAT upon request.

CHANGES
Ohio CAT shall have the right to make changes in this Order at any time for its convenience upon written notice to Vendor. Such changes shall be subject to an equitable adjustment in the performance schedule and/or purchase price based on reasonable and unavoidable costs incurred by the Vendor as a result of such change. Any claim of Vendor for an adjustment must be submitted in writing to Ohio CAT within thirty (30) calendar days of Ohio CAT change notice.

INSPECTION
Vendor’s facilities, equipment, and the goods and services purchased and to be purchased under this order are subject to Ohio CAT inspection and acceptance. Payment for the goods shipped and services performed shall not constitute acceptance. Goods and services shall only be deemed accepted when they have actually been counted, inspected, and tested by Ohio CAT and found to be in conformance with this order. Goods rejected and/or goods supplied in excess of those ordered may be returned to Vendor at its expense, including all expense of unpacking, examining, repacking and reshipping. If Ohio CAT received goods or services with defects or non conformities, whether or not apparent on inspection, Ohio CAT reserves the right to require re-performance or a refund or replacement as well as transportation costs and payment of damages. Nothing contained in this order shall relieve Vendor from its obligations of testing, inspection and quality control.

INSURANCE
If this order includes services or work to be performed on Ohio CAT’s premises or the premises of the customer of Ohio CAT, Vendor agrees to observe the highest safety standards, to adhere to all Ohio CAT work rules, safety standards and security requirements, and to maintain statutory Workers Compensation, Employer’s Liability and Commercial General Liability and Business Automobile Liability on behalf of Vendor and subcontractors of at least $1,000,000 combined single limit, and to furnish evidence of such insurance at Ohio CAT’s request and naming Ohio CAT as additional insured.

COMPLIANCE WITH LAWS
Vendor warrants that all goods and services supplied pursuant to this order will have been performed, produced and supplied in compliance with all applicable federal, state and local laws, order, rules and regulations, including but not limited to applicable rules and regulations of the Fair Labor Standards Act, Federal Communication Commission (FCC) and the Occupational Safety and Health Administration (OSHA). Vendor shall indemnify Ohio CAT against any liability caused by any non-compliance with this provision.

AFFIRMATIVE ACTION NOTICE
Ohio Machinery Co is a covered federal contractor or subcontractor and must comply with certain affirmative action requirements. Vendors, suppliers and subcontractors are notified they may be subject to the provisions of and regulations implementing Executive Order (EO) 11246, as amended, Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended, 38 U.S.C. 4212, and section 503 of the Rehabilitation Act of 1973, as amended, with respect to affirmative action program, posting and reporting requirements. Ohio Machinery Co and all of its subcontractors, suppliers and vendors shall comply with all of their applicable affirmative action obligations and hereby incorporate into their contract(s) the requirements of 41 CFR §§ 60-1.4(a) and (c), 60-250.5(a), 60-300.5(a) and 60-741.5(a); 48 CFR § 52.222-54(e); and 29 CFR Part 471, Appendix A to Subpart A. These regulations, in whole or in part, 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, in whole or in part, require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment qualified individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability.

MATERIAL SAFETY DATA SHEETS
Vendor shall electronically provide a Material Safety Data Sheet (MSDS) for those chemicals purchased under this order which are regulated by OSHA’s hazard communication regulations. All chemical vendors certify, by acceptance of this order, that the chemicals purchased are on the Toxic Substances Control Act chemical inventory or are subject to an exemption and that such exemption is specified in the MSDS.

DISPUTE RESOLUTION
Vendor and Ohio CAT agree that any claims or disputes, except for those relating to intellectual property will be submitted to non-binding mediation prior to initiation of any formal legal process. Costs of mediation will be shared equally. Disputes relating to intellectual property are to be submitted to the appropriate courts within the State of Ohio and shall be governed by the laws of the State of Ohio.

ASSIGNMENT
Unless Ohio CAT grants prior written consent, Vendor shall not assign any rights or delegate any duties or obligations hereunder or transfer or dispose of this Agreement or any part hereof or its rights, title and interest herein, nor assign any monies due or to become due hereunder. Any assignment or delegation made without the written approval of Ohio CAT shall be null and void. Any assignment of this Agreement so consented to shall not, however, relieve Vendor of responsibility for the due and full performance hereof. Vendor shall be liable to Ohio CAT for all acts and omissions of its assignees or other transferees. Vendor shall provide a complete list of proposed subcontractors and suppliers upon Ohio CAT’s request, and Ohio Cat reserves the right to disapprove any such proposed subcontractor or supplier. Vendor shall not be relieved of any duty or liability under this Agreement by reason of subcontracting and shall remain responsible to Ohio CAT for the full performance of Work.

PROPERTY REQUIREMENTS
Work performed on Ohio CAT property requires the utilization of CAT or Allied equipment if made for that work application. Competitive equipment is not permitted on the properties.

GENERAL
This order and any documents attached to or referred to on this order constitute the entire agreement between the parties and can only be modified by a writing signed by authorized representatives of both parties. The invalidity in whole or in part of any provision herein shall not affect the validity of other provisions, unless such invalidity would frustrate the purpose of these terms and conditions. Vendor is an independent contractor in the performance of its obligations under this order and Ohio CAT is to have no control over the methods and means Vendor uses to fulfill its obligations.