GENERAL TERMS AND CONDITIONS FOR AIC PURCHASE ORDERS

The following General Terms and Conditions shall be applicable to all Purchase Orders issued by Altavista Instruments & Controls, Inc. (referred to herein as “AIC”):

1. CHANGES:  No alteration in any of the terms, conditions, delivery price, quality, quantities, or specifications of any purchase order will be effective without the written consent of AIC.

2.  PACKING:  No charges will be allowed for special handling, packing, wrapping, bags, containers, reels, or other items delivered with purchased goods that are not part of the order, unless otherwise specified by AIC in writing.

3.  DELIVERY:   For any exception to the delivery date as specified on any purchase order, Vendor shall give prior notification and obtain prior written approval from AIC.   With respect to delivery under any purchase order, time is of the essence and the purchase order is subject to termination for cause for failure to deliver on time.   The acceptance by AIC of late performance with or without objection or reservation shall not waive the right to claim damages for such breach nor constitute a waiver of the requirements for the timely performance of any obligation remaining to be performed by Vendor.

4. ASSIGNMENTS:   Provision of monies due under this contract shall only be assignable with prior written consent of AIC.

5. SHIPPING INSTRUCTIONS:  Unless otherwise specified, all goods are to be shipped prepaid, FOB Destination.  Where specific authorization is granted to ship goods FOB Shipping Point, Vendor agrees to prepay all shipping charges, to route through the cheapest common carrier, and to bill AIC as a separate item on the invoice for said charges, less any federal transportation tax.   Each invoice for shipping charges shall contain the original or a copy of the bill indicating that the payment for shipping has been made.  AIC reserves the right to refuse COD shipments.

6.  REJECTION:  All goods or materials purchased herein are subject to inspection and approval by AIC.  Any rejection of goods or materials resulting because of nonconformity to the terms, conditions, and/or specifications of any purchase order, whether held by AIC or returned, will be at Vendor's risk and expense.

7.  IDENTIFICATION:   All invoices, packing lists, packages, shipping notices, instruction manuals, and other written documents affecting any purchase order shall contain the applicable purchase order number. · Packing lists shall be enclosed in each and every box or package shipped pursuant to any purchase order, indicating the content therein. Absent prior written consent of AIC, invoices will not be processed for payment until all items ordered and invoiced are received and all requirements of these General Terms and Condition have been satisfied.

8.  INFRINGEMENTS:  Vendor agrees to, indemnify, defend and hold harmless AIC against all claims for patent, trademark, copyright, or franchising infringements arising from the purchase, installation, or use of material ordered under any purchase order, and to assume all expense and damage arising from such claims. Vendor’s obligations under this section shall survive termination of this agreement.

9. REMEDIES: AIC' remedies shall be cumulative and remedies specified herein do not exclude any remedies allowed by law or in equity.  Waiver of any breach shall not constitute waiver of any other breach of the same or other provision.  Failure of AIC to object to any breach by Vendor of its obligations shall not be deemed a waiver of AIC’ rights to recovery for such breach.  Acceptance of any goods and/or payment therefore shall not be deemed a waiver of any claim by AIC for breach by Vendor of any obligation arising under a purchase order, this Agreement, by law, or otherwise. AIC may set off any amount due from Vendor to AIC or any affiliate of AIC, whether or not under this Agreement, against any amount due Vendor hereunder.  In the event AIC brings any action or suit to enforce its rights under this Agreement, then, in addition to all other remedies, it shall be entitled to recover its litigation costs, including attorneys’ fees and opinion witness’ fees. Vendor’s obligations under this section shall survive termination of this Agreement.

10. WARRANTIES:   VENDOR EXPRESSLY WARRANTS TO AIC THAT ALL GOODS AND/OR SERVICES COVERED BY THIS AGREEMENT SHALL CONFORM TO THE SPECIFICATIONS, DRAWINGS, DESIGNS, SAMPLES OR OTHER DESCRIPTION UPON WHICH ANY PURCHASE ORDER IS BASED, SHALL BE (i) FIT AND SUFFICIENT FOR THE PARTICULAR PURPOSE INTENDED, (ii) MERCHANTABLE, (iii) OF GOOD MATERIAL AND WORKMANSHIP, AND (iv) SHALL BE FREE FROM ANY CLAIM OF ANY THIRD PARTY. VENDOR WARRANTS THAT ALL SUCH GOODS AND/OR SERVICES SHALL CONFORM TO ANY STATEMENTS MADE ON THE CONTAINERS OR LABELS OR ADVERTISEMENTS FOR SUCH GOODS AND/OR SERVICES, AND THAT ANY GOODS WILL BE ADEQUATELY CONTAINED, PACKAGED, MARKED AND LABELED. INSPECTION, TESTING, ACCEPTANCE, OR USE OF THE GOODS AND/OR SERVICES FURNISHED HEREUNDER SHALL NOT AFFECT VENDOR’S OBLIGATION UNDER THIS WARRANTY AND THIS WARRANTY SHALL SURVIVE INSPECTION, TESTING, ACCEPTANCE, AND USE OF SUCH GOODS AND/OR SERVICES.  THIS WARRANTY SHALL RUN TO AND BE FOR THE BENEFIT OF AIC, ITS SUCCESSORS, ASSIGNS AND CUSTOMERS AND USERS OF ANY GOODS AND/OR SERVICES SOLD OR PROVIDED BY VENDOR TO AIC. AIC’ APPROVAL OF ANY SAMPLE OR ACCEPTANCE OF ANY GOOD AND/OR SERVICE SHALL NOT RELIEVE VENDOR FROM RESPONSIBILITY TO DELIVER OR PERFORM, AS THE CASE MAY BE, GOODS AND/OR SERVICES CONFORMING TO SPECIFICATIONS, DRAWINGS, DESIGNS, SAMPLES OR OTHER DESCRIPTIONS UPON WHICH ANY PURCHASE ORDER IS BASED. Vendor’s obligations under this section shall survive termination of this agreement.

11. PAYMENT, CASH DISCOUNT, LATE PAYMENT CHARGES:  Invoices will not be processed for payment nor will the period of computation for cash discount commence until receipt of a properly completed invoice or invoiced items are received, whichever is later.   If an adjustment in payment is necessary due to damage or dispute, the cash discount period shall commence on the date final approval for payment is authorized by AIC. If AIC fails to make timely payment when due, Vendor may not charge interest on the amount not timely paid, and Vendor’s sole remedy shall be to make a claim for the principal amount owed by AIC.   Payment shall not be considered untimely, unless it is made more than 45 days from (i) date of receipt of a properly completed invoice, (ii) date of receipt of goods, (iii) in the event an adjustment in payment is necessary due to damage or dispute, the date payment is authorized by AIC, or (iv) whichever is later. Notwithstanding the foregoing, at AIC’ option, it may elect to withhold payment from Vendor until thirty (30) days from the date AIC is paid by its customer for Vendor’s goods and/or services.  AIC need not notify Vendor of such an election until Vendor makes an inquiry into payment.  If AIC makes such an election, AIC’ obligation to pay Vendor shall be conditioned upon receipt of payment from AIC’ customer for Vendor’s goods and/or services, and receipt of such payment by AIC from its customer shall be a condition precedent to AIC’ obligation to pay Vendor.  Normally, payments to Vendor shall be remitted by mail.  AIC shall not honor drafts nor accept goods on a sight draft basis.

12. LIENS, CLAIMS, AND ENCUMBRANCES:   Vendor warrants and represents that all the goods and materials delivered pursuant to any purchase order are free and clear of all liens, claims or encumbrances of any kind.

13. RISK OF LOSS:   Regardless of FOB Point, Vendor agrees to bear all risk of loss, injury, or destruction of goods and materials ordered herein which occur prior to delivery, and such loss, injury, or destruction shall not release Vendor from any obligation hereunder.

14. SAVE HARMLESS:   Vendor agrees to protect, defend, hold harmless and indemnify AIC, its officers,  employees, agents, commissioners, and insurers, from and against any and all claims, actions, liabilities, losses, costs, damages and expenses (including attorney’s fees and opinion witness’ fees) arising out of or related to: (a) any actual or alleged death of, injury to, disease of, any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged defect in goods and/or services provided by Vendor, whether latent or patent, including without limitation actual or alleged improper construction or design of such goods and/or services, except to the extent solely and directly attributable to materials, designs or specifications provided by AIC; (b) the failure of such goods and/or services to comply with specifications or with any express or implied warranties of Vendor; (c) any breach of the terms of this Agreement or any actual or alleged violation in connection with such goods and/or services or the manufacture, possession, use or sale thereof, of any law, statute or ordinance or any governmental administrative purchase order, rule or regulation; or (d) any action or inaction of Vendor, its employees, agents, subcontractors, etc. in any way related to this Agreement or otherwise including, but not limited to, Vendor's installation, service, maintenance or updates of goods and/or services. Vendor’s obligations under this section shall survive termination of this agreement.

15. PRICES:  If price is not stated on any purchase order, it is agreed that the goods shall be billed at the price last quoted or paid, or the prevailing market price, whichever is lower.

16. SPACE QUALITY STANDARDS:  Special brands, when named, include the standard of quality, performance, or use desired.    Bids on Vendor's equivalent goods may be considered, provided Vendor specifies brands, model, and necessary descriptive literature.   In the event AIC elects to contract for a brand purported to be an equal by the bidder, the acceptance of the item will be conditioned on AIC’ inspection and testing after receipt. If, in the sole judgment of AIC, the item is determined not to be an equal, the material shall be returned at Vendor's expense and the contract terminated.

17. ANTITRUST ASSIGNMENTS:  Vendor and AIC recognize that in actual economic practice, overcharges resulting from antitrust violations are in fact usually borne by AIC. Therefore, Vendor hereby assigns to AIC any and all claims for such overcharges as to goods and materials purchased in connection with any purchase order or contract, except as to overcharges which result from antitrust violations commencing after the price is established under this purchase order or contract and which are not passed on to AIC under an escalation clause.

18. PRICE WARRANTY FOR COMMERCIAL ITEMS:    For all goods sold pursuant to any Purchase Order, Vendor warrants that prices charged to AIC are based on Vendor's current catalog or published price list of commercial items sold in substantial quantities to the general public.

19. ACCEPTANCE:  Each purchase order expressly limits acceptance to, and is expressly conditioned upon Vendor’s acceptance of, the Terms and Conditions stated herein and on the face of the purchase order.  All additional or different terms proposed by Vendor are objected to and are hereby rejected, unless otherwise provided in writing by AIC.

20. TERMINATION:    AIC may terminate any purchase order for AIC’ convenience or for the failure of the Vendor to fulfill the obligations of the purchase order.    AIC shall terminate by delivering to the Vendor a written Notice of Termination specifying the reason therefore and the effective date of termination.  Upon receipt of the notice, the Vendor shall immediately discontinue all services affected and deliver to AIC all information, reports, papers, or other materials accumulated or generated in performing the purchase order, whether completed or in process.  If the termination is for the convenience of AIC, AIC shall be liable only for payment for services rendered or goods received before the effective date of termination.  If the termination results from the Vendor's failure to fulfill the obligations of the purchase order, the Vendor shall be liable for all damages suffered by AIC, and AIC may withhold any payments to the Vendor to offset for these damages.

21. LAW – VENUE – ATTORNEY’S FEES:  Notwithstanding its choice of law provisions, the laws of the Commonwealth of Virginia, United States shall govern all orders and the venue for any action brought with regard to any purchase order shall be in the federal and state courts located in Lynchburg, Virginia, at AIC option, and Vendor hereby irrevocably consents, and waives any objection, to the venue and jurisdiction of those courts.  In any dispute between Vendor and  AIC, AIC, if it prevails, shall be entitled to recover from Vendor its court costs, expenses, attorneys’ fees and opinion witness’ fees. Vendor’s obligations under this section shall survive termination of this agreement.

22. NON-DISCRIMINATION: Vendor assures that it shall not discriminate against any company, subcontractor, employee, or other person on the grounds of race, color, sex, or national origin, age, or disability under this contract or under any project, program, or activity supported by this contract.

23.  OSHA/VOSH:  Vendor agrees to comply with the conditions of all applicable federal and state occupational and/or industrial safety and health acts, such as the Federal Occupational Safety and Health Act of 1970 (OSHA), as enforced by the Virginia Department of Labor and Industry, and the standards and regulations issued thereunder and certifies that all items furnished and purchased under any purchase order will conform to and comply with said standards and regulations. Vendor further agrees to indemnify and hold harmless AIC from all damages assessed against AIC as a result of Vendor's failure to comply with the Acts and the standards issued thereunder and for the failure of the items furnished under any purchase order to so comply.

24. COMPLIANCE WITH FEDERAL, STATE  AND LOCAL LAW – AIC POLICIES:  In addition to complying with the laws specifically mentioned above, Vendor shall comply with all applicable federal, state and city laws, regulations and rules.  Vendor shall also comply with all written policies of AIC.

25.  STATUS OF PARTIES - INSURANCE:  All services rendered by Vendor hereunder shall be by Vendor as an independent contractor, and this Agreement does not create a joint venture, partnership, or an employer-employee relationship between AIC and Vendor.  Vendor shall obtain and maintain, at its expense, all necessary insurance coverage, including without limitation, public liability, product liability, auto and workers’ compensation insurance, including coverage required by AIC.  All such policies shall provide that the required coverage shall not be terminated without at least thirty (30) days’ prior written notice to AIC. Vendor’s obligations under this section shall survive termination of this agreement.

26.  RESPONSIBILITY FOR DAMAGE:  Vendor shall repair and restore to its original condition any equipment, materials, items, premises, or other property of AIC damaged in any way by Vendor’s operations. Vendor shall be entirely responsible for any loss or damage to its own equipment, materials, items, premises, and personnel. Vendor’s obligations under this section shall survive termination of this agreement.

27.  COMPLETE AGREEMENT:  These General Terms and Conditions, any attachments, exhibits or schedules hereto, all related purchase orders and any items incorporated herein or therein by reference, contain the entire agreement between AIC and Vendor, and no other agreement or understanding purporting to add to or modify the terms and conditions hereof shall be binding upon AIC unless agreed to by AIC in writing on or subsequent to the date of the purchase order.  Any offer to purchase goods and/or services from Vendor is hereby made conditional on Vendor’s assent to these General Terms and Conditions.  These General Terms and Conditions supersede, replace and control over any prior agreement between AIC and Vendor, including prior credit applications and Vendor’s terms and conditions of open account.

28.  CONFIDENTIAL INFORMATION:  All information or data furnished by AIC to Vendor in connection with the performance of this Agreement by Vendor, including but not limited to AIC’ name and identity, logos, and other intellectual property, are the exclusive property of AIC and such information and data shall not be disclosed to others nor used for any purpose other than in accordance with this Agreement without the prior written consent of AIC.  Vendor’s obligations under this section shall survive termination of this agreement.

29.  GIFTS:  AIC prohibits AIC’ employees, subcontractors and affiliates from accepting any gifts, gratuities or other benefits that go beyond the common courtesies usually associated with business practices and that exceed token or nominal value from any supplier or potential supplier to AIC.  Any payment of cash or cash equivalents (gift certificates, gift cards, and similar non-cash purchasing credits by a supplier to any AIC employee is strictly prohibited.  AIC employees are required to report any gifts offered or given that are not in compliance with this policy.  Similarly, if a AIC employee solicits a payment or inappropriate gift from any supplier or potential supplier, the supplier shall immediately report the violation to the employee’s immediate supervisor.  A supplier who receives repeated solicitations from any individual, or solicitations from more than one individual, should report the matter to AIC’ president.

30.  CONFLICTS OF INTEREST:  All AIC employees are expected to avoid any investment, interest or association which interferes, might interfere, or might be thought to interfere with the employee’s independent exercise of judgment in AIC’ best interest.  A conflict of interest may exist where the employee, any member of his or her family or any close personal relation (i) has a significant direct or indirect financial interest in, or obligation to, an actual or potential competitor, supplier or customer; (ii) is a principal, officer or representative of a supplier or customer with whom the employee conducts business on AIC’ behalf; or (iii) accepts gifts of more than token or nominal value from an actual or potential competitor, supplier or customer.  AIC employees are required to disclose any possible conflicts of interest to the general managers of the applicable company or division, or to the applicable corporate department head.  Similarly, suppliers are required to disclose any possible conflicts of interest to AIC employee(s) with whom they are negotiating or, if the possible conflict involves such persons, to the appropriate general manager or department head. 

31.   SURVIVAL:  Except as expressly provided herein, the termination of this Agreement or any purchase order shall not in any way affect any obligations under this Agreement which are expressly stated herein to be continuing or are by their nature continuing.

32.  FORCE MAJEURE:  Either party shall be excused from performance of its obligations under this Agreement or any purchase order if such party suffers a force majeure event, which shall mean and be limited to an event that is caused by an act of God, epidemic, earthquake, fire, flood, riot, civil disorder, government regulation or action, or other substantially similar cause, and which could not have been prevented or circumvented by reasonable precautions or commercially accepted processes of the party experiencing the force majeure event; provided that a party that suffers a force majeure event shall inform the other party of such event immediately upon the occurrence of such event and shall take all reasonable steps to remedy the situation so that it is again able to perform its obligations under this Agreement or any purchase order; and provided further, that if a party remains unable to perform under this Agreement or any purchase order as a result of a force majeure event for a period longer than 30 days, the other party shall have the right to immediately terminate this Agreement and such purchase order.

33.  NOTICE:  Any purchase order, notice, consent or other communication or documentation required or permitted under this Agreement shall be given in English at the respective addresses of Vendor and AIC, as indicated on the face of the Purchase Order, by any commercially reasonable written or electronic means, and will be deemed given when delivered in person, when electronic delivery is confirmed, when delivered by any reputable courier service, or 3 days after being sent by registered or certified U.S. mail, postage prepaid, return receipt requested. 

34. AUTHORITY:  Vendor’s representative signing below verifies that he/she has read this complete Agreement, understands its contents, and has full authority to bind and does hereby bind Vendor.

35.   HEADINGS:   Section headings in this Agreement are for the convenience of the parties only, and shall not modify or eliminate any obligations of Vendor.

36.  SEVERABILITY:  If any provision hereof is found unenforceable, the remaining provisions shall be enforced at AIC’ option.

37. ELECTRONIC AND FACSIMILE SIGNATURES:  Electronic or facsimile signatures on purchase orders and other documents shall be binding on the Vendor as if they were original, and such documents may be signed in counterparts.

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