Terms & Conditions

Entire Agreement. Upon acceptance by Seller, this purchase order (which specifically includes these terms and conditions and any specifications, samples, or descriptions of the goods or services (the “goods” and the “services”) that are either expressly incorporated herein by the parties in writing or relied upon by Temco Metal Products Co. (“Buyer”) shall constitute the entire agreement (“Agreement”) between Buyer and Seller with respect to the goods and the services subject to this purchase order and shall supersede all prior and contemporaneous oral or written agreements, understandings, and communications between Buyer and Seller with respect there to.

Acceptance of Purchase Order. This purchase order is an offer, not an acceptance. Buyer expressly limits acceptance of this purchase order only to the terms and conditions of this purchase order, and hereby timely objects to any inconsistent, additional or different terms or conditions in any prior or subsequent invoice, acknowledgment, confirmation or other document. Seller shall be deemed to have accepted the terms and conditions of this purchase order (a) even if Seller’s acceptance purports to make acceptance conditional on acceptance of inconsistent, additional or different terms or conditions to this purchase order, (b) when acknowledged by Seller in writing, or (c) if Seller makes any shipment or performance in response to or in anticipation of this purchase order, unless preceded by a separate writing modifying these terms signed by Buyer. Any term of any invoice issued by or on behalf of Seller which is inconsistent with a terms or condition of this purchase order is not binding on Buyer and will not apply to the sale or shipment of any goods, services or other items by Seller unless Buyer has expressly agreed to such inconsistent term or condition in writing.

Delivery. The price of all goods and services described in this purchase order shall be F.O.B. Buyer’s location(s) unless otherwise specified. Time is of the essence. Delivery of goods or other performance must be completed within the time limits specified in this purchase order. If necessary, Seller shall, at no additional cost to Buyer, employ accelerated measures (such as shipping via air and employing overtime labor) to meet the specified delivery schedule. Seller agrees to notify Buyer immediately if Seller is unable to deliver any part or all of the goods or services or is unable to meet the specified delivery schedule. Delivery shall be deemed to be complete only when the goods and services have been actually received at their destination by Buyer. If delivery or performance is not timely completed, Buyer may, at its election, refuse any or all of the goods and services and cancel all or any part of this Agreement. In addition to any other remedies provided by law or this purchase order, Seller shall pay to Buyer all of Buyer’s incidental and consequential costs and damages incurred by Buyer as a result of Seller’s failure to deliver the goods or services within the time limits specified in this purchaser order. Any provisions herein for delivery of goods or the rendering of services by installment shall not be construed as making the obligations of Seller severable. Seller shall not be excused by unexpected difficulty or commercial impracticality of any degree.

Acceptance of Goods and Services by Buyer. Buyer shall be deemed to have accepted the goods and services on the date that the goods and services have been received by Buyer and have performed in accordance with all specifications and warranties (the “date of acceptance”). The risk of loss or damage shall remain with Seller until the date of acceptance. Buyer shall have the right to inspect and test the goods and services and reject any nonconforming goods and services. In addition to any other remedies under law, Buyer shall have the right to reject and refuse acceptance, require prompt correction or cure, or accept any nonconforming goods or services with an equitable adjustment in price. Buyer may return nonconforming goods to Seller at Seller’s risk and expense, including transportation and handling costs. The right to test and inspect, whether exercised or not, shall not affect Buyer’s right to revoke acceptance or pursue other remedies if nonconformities are later discovered, even if such nonconformity could have been discovered upon inspection. Payment for goods or services shall not constitute acceptance. Acceptance shall not relieve Seller from its responsibility under any warranty.

Warranties. In addition to all other express and implied warranties, Seller expressly warrants that all goods and services shall: (a) be free from all liens, charges, encumbrances, or claims of any person; (b) be of merchantable quality, of good material and workmanship, and free from defects in design, materials and workmanship for a period that begins on the date of delivery and expires on the later of (i) the first anniversary of the date of acceptance or (ii) the expiration of Seller’s warranty period; (c) be fit for the purposes for which goods of that type are ordinarily used as well as for any purposes Seller has made known to the public or to Buyer or that Buyer has made known to Seller; (d) conform strictly and in every respect to the specifications and descriptions of this purchase order and any sample, quote, description, specification, drawing, writing or proposal provided to Buyer by Seller; (e) be produced and performed in compliance with and conform in all respects to all applicable laws, regulations, standards, rules and orders of all applicable federal, state, and local governmental authorities, whether domestic or foreign, including without limitation those governing safety, health, labor, hazardous substances and sanitation: and (f) not infringe any patent, copyright, trademark or proprietary rights of any third party. Seller hereby assigns to Buyer the benefits of all warranties given by any person or entity from whom Seller purchased any goods or services. Without limiting any other rights or remedies available to Buyer under this Agreement or otherwise, if the goods or services are defective in any way or fail to conform in all respects to any warranty, Seller shall, at its own expense, within a reasonable time after notice, repair, replace or correct any defective or nonconforming goods or services, provided, however, that Seller is notified of the defect or nonconformity within a period of one year after the date Buyer discovers the defect. Whether or not Seller repairs, replaces or corrects any defects within a reasonable time, Seller shall reimburse Buyer for reasonable expenses incurred in connection with such failure and in enforcing its warranty rights (including without limitation its reasonable attorney fees at trial and on appeal), in addition to any other remedies Buyer may have.

Intellectual Property. The parties expressly acknowledge and agree that at no time shall either party acquire or retain, or appropriate for its own use, any right, title or interest in or to any of the other party’s intellectual property. Neither party shall take any action that might impair in any way any right, title or interest of the other party in or to any of the parties’ respective intellectual property.

Temco Property. The delivery by Buyer of any tooling, molds, technical specifications or other property of Buyer (“Temco Property”) to Seller is a bailment and is not a consignment, sale or transfer of property to secure a debt. Seller will utilize the Temco Property only as authorized by Buyer and in strict compliance with any written or oral instructions provided by Buyer. The Temco Property shall at all times remain the sole and exclusive property of Buyer. Seller has not and will not acquire any ownership or other rights in the Temco Property. Seller will not affix any labels or markings on the Temco Property and will not remove or alter any Buyer labels, markings, serial numbers or other identifying characteristics on the Temco Property. Until the Temco Property is returned to Buyer’s actual possession, Seller will bear the risk of loss from all causes. If the Temco Property is not returned to Buyer in the same condition as when received by Seller, ordinary wear and tear excepted, Seller will reimburse Buyer for the cost to repair or replace the Temco Property. Buyer may at any time enter on Seller’s premises to obtain possession of the Temco Property. In addition, upon request by Buyer, Seller will at its expense promptly return the Temco Property to Buyer in accordance with Buyer’s instructions.

Indemnity. Seller agrees unconditionally and irrevocably to hold harmless, indemnify and defend Buyer (including its officers, directors, employees, agents and insurers) from, for and against any and all claims, demands, lawsuits, losses, damages, injuries (including personal injury, sickness, death or property damage), expenses (including attorney fees in a bankruptcy or any other proceeding, at trial and on appeal), and other liabilities of any kind or nature, of or to any person or entity (including Buyer), whether in contract, tort, or otherwise, actually or allegedly arising out of or in connection with the negligent performance, nonperformance or breach of this Agreement by Seller (including its employees, agents, contractors, subcontractors and consultants), any nonconformity, defect or breach of warranty as to the goods or services, any violation or infringement by the goods or services of any patent, copyright, trademark, trade secret, nondisclosure agreement, or other proprietary rights of any third party or any dispute under any bankruptcy law.

Independent Contractor. Seller is an independent contractor, and no employment, partnership, or joint venture relationship shall be deemed to exist between Buyer and Seller or Seller’s employees or agents.

Security Agreement. Seller hereby grants to Buyer a continuing security interest in all or any part of the goods, whether or not completed, that are identifiable to this Agreement to secure all obligations of Seller under this Agreement, even if such goods have not yet been delivered to Buyer. In addition to any other rights and remedies available to Buyer, Buyer shall be entitled to all rights and remedies available to secured parties under the Uniform Commercial Code.

Assignment. Seller shall not delegate or subcontract any of its duties or obligations, or assign any rights or claims under this Agreement, without the prior written consent of Buyer. Any attempted delegation or assignment shall be void. This Agreement shall inure to the benefit of and bind the parties, their successors and permitted assigns.

Waiver. No delay or omission in the exercise of any right or remedy shall be deemed a waiver of any right or remedy. No waiver of any term, condition, default, breach, right or remedy under this Agreement shall be valid or binding unless executed in writing by the party making the waiver. No waiver shall constitute a waiver of any other term, condition, default, breach, right or remedy under this Agreement, nor shall any waiver constitute a continuing waiver.

Modification. No term or condition of this Agreement shall be amended, supplemented, or modified except by a writing signed by the party against whom enforcement is sought.

Severability. If a court of competent jurisdiction or arbitrator finds any term or condition of this Agreement to be invalid or unenforceable for any reason as to any person or circumstance, then the term or condition shall continue in effect only to the extent that it remains valid, and the court’s finding shall not render that term or condition invalid or unenforceable as to any other person or circumstance; and all other terms and conditions of this Agreement in all other respects shall remain valid and enforceable.

Governing Law; Jurisdiction. This Agreement shall be governed in all respects by the internal laws of the state of Oregon, without regard to choice-of-law provisions. The parties agree that exclusive jurisdiction over and venue in any legal proceeding arising out of or relating to this Agreement shall be in the state or federal courts located in Clackamas County, Oregon. The prevailing party in any arbitration or other legal proceeding relating to this Agreement will be entitled to recover its costs and expenses, including without limitation, attorney fees (including before trial, at trial and on appeal) in addition to any other costs allowed by law. For purposes of this Agreement, the prevailing party means the party that prevails, either affirmatively or by means of a successful defense, with respect to claims having the greatest value or importance as determined by the court or arbitrator having jurisdiction over the matter.

Purchasing Agents. To effectuate this policy: 1. In all events which call upon a commitment of Temco resources pursuant to a new or renewal contract, no such commitment is to be undertaken, in writing, electronically or orally, without first receiving authorization to do so from an Authorized Purchasing Party, or from Temco’s General Counsel Greg Williams. Any such commitment undertaken without first obtaining a prior authorization as outlined above is disavowed, and will not be honored, by Temco. 2. Temco Purchasing Agents have authority to commit Temco resources up to an amount of $1,000 pursuant to a purchase order under an existing contract without prior authorization as outlined in 1 above. That $1,000 commitment amount may be changed from time to time, which change will be communicating in writing to all Purchasing Agents.