Vendor Terms

Acceptance and Agreement

(a) These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of the goods (“Goods”) and services (“Services”) by Max Machinery Inc. (“Buyer”), from the Supplier named in the applicable purchase order (“Supplier”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

(b) The applicable purchase order (the “Purchase Order”), these Terms and the Scheduling Agreement (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Supplier’s general terms and conditions of sale regardless whether or when Supplier has submitted its sales confirmation or such terms. This Agreement expressly limits Supplier’s acceptance to the terms of this Agreement. Fulfillment of a Purchase Order constitutes acceptance of these Terms.

Delivery of Goods and Performance of Services

(a) Supplier shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If Supplier fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Supplier and Supplier shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier’s failure to deliver the Goods on the Delivery Date.

(b) Supplier shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Supplier shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Supplier must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Supplier’s risk of loss and expense.

(c) Supplier acknowledges that time is of the essence with respect to Supplier’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.

Quantity

If Supplier delivers more or less of the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Supplier at Supplier’s sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the price for the Goods shall be in accordance to the agreed to price or adjusted based on volume discounts that apply.

Shipping Terms

Shipping terms will be specified on each Purchase Order. If no shipping method is identified the Supplier shall contact the Buyer and ship per their instructions. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.

Inspection and Rejection of Nonconforming Goods

Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Supplier, to:

(a) Accept the Goods at a reasonably reduced price.

(b) Reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Supplier shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Supplier fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Supplier the cost thereof and terminate this Agreement. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Supplier’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Supplier has carried out its remedial actions.

Price

The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Supplier’s Quote or published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all tooling, packaging, insurance, if applicable, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.

Invoicing and Payment Terms

(a) Supplier shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with this Agreement. Unless otherwise stated in the Purchase Order, Buyer shall pay all properly invoiced amounts due to Supplier as per the agreed upon Payment Terms. Supplier shall ensure that all invoices include (i) the Max Machinery Inc. part number related to the Goods, (ii) the applicable Purchase Order number, and (iii) the line-item number and quantity of Goods.

(b) Max Machinery Inc. shall issue a debit memo for any Goods that are received and subsequently rejected and returned by Buyer. Supplier shall issue a new invoice for such returned Goods after replacement in accordance with the terms of this Agreement.

Supplier’s Obligations Regarding Services

Supplier shall:

(a) Before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;

(b) Comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;

(c) Maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Supplier in providing the Services in such form as Buyer shall approve. During the term of this Agreement, upon Buyer’s written request, Supplier shall allow Buyer to inspect and make copies of such records and interview Supplier personnel in connection with the provision of the Services;

(d) Obtain Buyer’s written consent, which shall not be unreasonably withheld or delayed, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Supplier, other than Supplier’s employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Supplier subcontractor or supplier;

(e) Require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer;

(f) Ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Supplier, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;

(g) Ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer; and (h) Keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer’s written instructions or authorization.

Change Orders

Buyer may at any time, by written instructions and/or drawings issued to Supplier (each a “Change Order”), order changes to goods or services. Supplier shall within 5 days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Supplier shall proceed with the changes subject to the cost proposal and the terms and conditions of this Agreement.

Warranties

(a) Supplier warrants to Buyer that for a period of 36 months from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of the Goods by Buyer;

(b) If Buyer gives Supplier notice of noncompliance pursuant to this Section, Supplier shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Supplier and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services.

General Indemnification

Supplier shall defend, indemnify and hold harmless Buyer, Buyer’s subsidiaries, affiliates, successors or assigns, and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Supplier or Supplier’s negligence, willful misconduct, or breach of Terms. In no event shall Supplier enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

Intellectual Property Indemnification

Supplier shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Supplier enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

Ownership of Intellectual Property

(a) Any inventions conceived or reduced to practice by Supplier, alone or jointly with others, which are based, in whole or in part, on Buyer Confidential Information, as well as any works of authorship, copyrightable work product, computer programs, machine instructions, data bases, drawings, or writings, which are based, in whole or in part, on Buyer Confidential Information, are and will remain the sole property of Buyer, and the title to such intellectual property is assigned by Supplier to Buyer.

(b) Supplier agrees that all computer programs, machine instructions, drawings, specifications, calculations, data, memoranda, notes and other information or materials, including all copies and excerpts which are based, in whole or in part, on Buyer Confidential Information shall be delivered to Buyer promptly upon written demand by Buyer.

Inspection and Audit Rights

If this Agreement relates to the sale of Goods, Supplier hereby grants to Buyer access to Supplier’s premises (including Supplier’s manufacturing operations used in production of the Goods) and all pertinent documents and other information in any way related to Supplier’s performance under this Agreement, the Goods, for the purpose of auditing Supplier’s compliance with the terms of this Agreement. Supplier agrees to cooperate fully with Buyer in connection with any such audit or inspection.

Insurance

During the term of this Agreement and for a period of three (3) years thereafter, Supplier shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability). Upon Buyer’s request, Supplier shall provide Buyer with a certificate of insurance from Supplier’s insurer evidencing the insurance coverage specified in these Terms.

Compliance with Laws

Supplier shall comply with all applicable laws, regulations and ordinances. Supplier shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Supplier shall comply with all export and import laws of all countries involved in the sale of the Goods or Services under this Agreement or any resale of the Goods by Supplier.

Termination

In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Supplier, either before or after the acceptance of the Goods or the Supplier’s delivery of the Services, if Supplier has not performed or complied with any of these Terms, in whole or in part. If the Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against its proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Supplier. If Buyer terminates the Agreement for any reason, Supplier’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.

Waiver

No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.

Confidential Information

All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Supplier (“Buyer Confidential Information”), whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Supplier shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section.

Force Majeure

Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, or embargoes. Supplier’s economic hardship or changes in market conditions are not considered Force Majeure Events. Supplier shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Agreement. If a Force Majeure Event prevents Supplier from carrying out its obligations under this Agreement for a continuous period of more than thirty (30) days, Buyer may terminate this Agreement immediately by giving written notice to Supplier.

Assignment

Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement 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 the Supplier of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Supplier's prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets.

Non-Exclusivity

Buyer is free at any and all times to purchase the same or similar Goods from other suppliers as they may determine at their sole discretion and/or to manufacture the Goods or similar products ourselves.

Relationship of the Parties

The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

Governing Law

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State to which the Goods or Services are being delivered to Buyer without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of such State.

Severability

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Survival

Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law and Survival.

Amendment and Modification

These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.