KAIVAC PURCHASE ORDER TERMS AND CONDITIONS

These Purchase Order Terms & Conditions apply to any purchase orders, releases, or other means of ordering between Seller (“Seller”) and Kaivac, Inc., an Ohio corporation, and/or any of its subsidiary or affiliated companies (“Kaivac”) (individually a “Party” and collectively the “Parties”) relating to goods/services (individually “Goods” or “Services” and collectively “Goods/Services”).

1. PAYMENT, DUE DATE, AND COMPLIANCE WITH INVOICE REQUIREMENTS. Unless otherwise provided on the applicable Purchase Order, payment terms are net thirty (30) days from date of invoice, at Kaivac’s discretion, unless otherwise agreed in writing. The due date for payment is calculated from the later of (i) the date the accurate invoice is received at the location as designated by Kaivac, (ii) Kaivac’s receipt of the Goods or the date of performance of the corresponding Services, or (iii) Kaivac confirms proof of Seller’s performance. Kaivac may withhold payment if Seller’s invoice is inaccurate, does not meet Kaivac’s invoice requirements, or does not meet legal or tax requirements. Kaivac may set off any amount owing from Seller to Kaivac or any of its affiliated companies against any amount payable at any time by Kaivac. To the extent legally required, Seller will report invoices to the authorities in line with the technical requirements and the deadlines in accordance with applicable Laws (“Compliant Reporting”). Seller will compensate Kaivac for the non-recoverable VAT, GST or equivalent consumption taxes and related interest and penalties resulting from Seller’s failure to file Compliant Reporting. Each invoice submitted by Seller will describe the specific Goods provided and/or Services performed and the corresponding charges in a manner reasonably satisfactory to Kaivac. Kaivac’s invoice requirements are posted at https://shop.kaivac.com/supplierguide.
2. PRICE.  The price of the Goods/Services is the price stated on the Purchase Order (the “Price”). Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to, insurance, 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 Kaivac’s prior written approval. Kaivac shall not be liable for payment of any invoice not properly submitted to Kaivac within one hundred eighty (180) days following Seller’s shipment of the Goods or delivery of the Services.  
3. TRANSACTION DOCUMENTS. The purchase of Goods/Services from Seller by Kaivac is expressly conditioned upon the following documents (in order of priority): (i) a mutually agreed and signed contract; (ii) a Purchase Order (including any drawings, specifications or other documents referred to on the face of the Purchase Order) provided by Kaivac; (iii) these Purchase Order Terms and Conditions; and (iv) any other contract documents agreed to in writing by the Parties (collectively, the “Agreement”). The Agreement constitutes the entire agreement between Kaivac and Seller and supersedes all other agreements and undertakings, whether written or oral, between the Parties with respect to the subject matter of the Agreement. No change to any portion of this Agreement will be binding on Kaivac unless in writing, specifically identifying the specific provisions being amended and signed by an authorized Kaivac representative. Any of the following acts by Seller will constitute acceptance of the Agreement: (i) electronic acceptance; (ii) acknowledgment of the Agreement; or (iii) commencement of performance or Seller’s notice to Kaivac of commencement of performance.
4. DELIVERY, RISK OF LOSS, TITLE. All Goods/Services, as applicable, will be marked, packaged, shipped and delivered in the quantities and on the date(s) specified in the Purchase Order in compliance with applicable law and Kaivac requirements located at https://shop.kaivac.com/supplierguide. Unless otherwise provided on the applicable Purchase Order, delivery of Goods is FOB Destination, Freight Prepaid. Delivery will be made pursuant to the schedule, via the carrier specified by Kaivac, and all Goods will be packed for shipment in accordance with Kaivac’s instructions, or if no instructions are provided in a manner to Goods are delivered in undamaged condition and without additional charge for boxing, crating, or storage unless otherwise specified. Seller bears the risk of loss of nonconforming Goods until cure or acceptance. 
5. INSPECTION, ACCEPTANCE. All Goods/Services are subject to inspection and testing by Kaivac or its agent, and payment by Kaivac will not constitute acceptance of such Goods/Services. Kaivac may inspect and reject Goods that is, in its sole subjective judgment, defective or nonconforming regardless of the time elapsed between delivery and Kaivac’s inspection. “Nonconforming” means the Goods/Services which are not the Goods/Services ordered, does not meet specified Goods/Services performance standards, does not comply with the specified Goods/Services specifications, or is of an incorrect quantity. Kaivac may return all nonconforming Goods/Services to the Seller at Seller’s expense and collect from Seller all related expenses, including but not limited to unpacking, examining, repacking, and reshipping such Goods. If Kaivac receives Goods/Services whose defects or nonconformity are not apparent upon initial receipt or examination, Kaivac reserves all rights with respect to such Goods/Services. Nothing contained in these Terms and Conditions will relieve Seller from its obligations of testing, inspecting, and ensuring quality control of Goods/Services nor otherwise limit Kaivac’s rights to seek damages caused by the delivery of defective or nonconforming Goods/Services.
   
   For Goods/Services purchased by Kaivac for a U.S government contract or subcontract, Seller shall cooperate with Kaivac’s government-required inspection obligations by providing access to requested materials and information.
6. SAFETY AND QUALITY OF GOODS. Seller will not make any change to the raw materials, packaging, or production process in the manufacturing of any Goods or parts without Kaivac’s prior written consent, which shall not be unreasonably withheld or delayed. The seller will continuously maintain a quality control system with regard to all Goods/Services and will notify Kaivac immediately in the event of Goods or parts are subject to safety or quality issues, including but not limited to recalls. Seller will provide Kaivac with prompt and reasonable assistance if Kaivac determines that any Goods need to be recalled or reworked.
7. REPRESENTATIONS AND WARRANTIES RELATING TO THE GOODS/SERVICES. Seller represents and warrants that at the time when title passes to Kaivac, and for (15) months thereafter, the Goods and its parts: (i) are new and unused; (ii) in full compliance with the specifications and drawings either set forth in this Agreement or transmitted by Kaivac and incorporated by reference (collectively, “Specifications”); (iii) are safe and otherwise appropriate and fit for Kaivac’s use; (iv) are of merchantable quality and free from latent and patent defects in workmanship, materials and design; (v) will not infringe, violate, or misappropriate any copyrights, patents, trademarks, design rights, trade secrets, or other intellectual property rights of any third party (collectively, “IP Rights”); and (vi) be free of all liens, security interests or other encumbrances.
   
   Seller represents and warrants that at the time of performance of the Services, and continuously thereafter, the Services will be: (i) performed by qualified and trained persons who are properly licensed, certified, or accredited as required by applicable Law; (ii) in full compliance with the Specifications and any applicable Kaivac or customer rules, regulations and policies, including building security, general health, and safety procedures; (iii) done in a competent, safe, workmanlike manner and free from defects in materials and workmanship, whether latent or patent; (iv) in conformity with the standards of care employed by leading vendors in the services industry for similar projects; (v) ) will not infringe, violate, or misappropriate any IP Rights of any third party; and (vi) in full compliance with all applicable Law.
   
   Seller will use commercially reasonable efforts to obtain and assign through to Kaivac all third-party warranties for any product or parts not manufactured by Seller that are incorporated into the Goods. Seller’s warranty will run to Kaivac, and its successors, assigns, customers and end-users of the Goods sold by Kaivac.
   
   Upon notice, Seller will (i) replace nonconforming Goods, without expense to Kaivac unless Kaivac provides written consent to Seller that Seller may repair the defects rather than replace the Good; and (ii) re-perform nonconforming Services. Should Seller fail to promptly correct defects in or replace nonconforming Goods/Services, Kaivac after reasonable notice to Seller, may make such corrections or replace such Goods/Services and charge Seller for all costs of correction, replacement or re-performance.
   
   In the event of any serial field failure, Seller will immediately take corrective action to rectify the problem and provide Seller with notice and Seller’s correction plan, per Kaivac’s corrective action plan and requirements. The seller will be liable for Kaivac’s warranty costs and expenses in connection with diagnosis and repair or replacement of field failures of Goods, including freight, parts, labor, and travel related expenses.
   
   The warranties set forth in this section are cumulative and shall not be construed as restricting or limiting any warranties or remedies of Kaivac, express or implied, which are provided by the Agreement or law. Any attempt by Seller to limit, disclaim or restrict any such Kaivac warranties or remedies, in any manner whatsoever will be null, void, and ineffective. 
   
8. NON-BINDING FORECASTS. For Seller’s convenience and planning purposes, Kaivac may issue forecasts of its potential future purchases of Goods/Services. Such forecasts may be provided in multiple forms, including by means of a blanket purchase order or similar document. All Kaivac forecasts are informational only and not binding, and Kaivac will have no liability for payment for forecasted requirements or blanket purchase order quantities without an executed Agreement specifying same between the Parties.
9. TERMINATION. Any Agreement, in whole or in part, may be cancelled by Kaivac at any time and for any reason. In the event of such cancellation, Seller will immediately stop all work on the Goods and Services relating to that Agreement and promptly notify its suppliers and/or subcontractors to stop work. Kaivac will pay Seller a reasonable termination charge reflecting the percentage of the work performed prior to the notice of cancellation, plus actual documented direct costs resulting from the cancellation, but less amounts saved by Seller as a result of the cancellation or recoverable by Seller in mitigation of its damages. Kaivac will not pay Seller for any work done after Seller’s receipt of the notice of cancellation or for any costs incurred by Seller’s suppliers or subcontractors which could have reasonably avoided. Any payment under this provision will not be deemed to waive of any of Kaivac’s other rights.
10. INDEMNIFICATION. Seller will indemnify, defend and hold harmless Kaivac, its parent, its affiliates and subsidiaries and their respective agents, officers, directors and employees (collectively, the “Kaivac Indemnitees”) in accordance with Section 12  against any damages, claims, liabilities, costs, expenses (including reasonable attorney fees and related costs of suit) (collectively, “Damages”), arising out of or relating to (or in the case of third party claims, alleging): (i) Seller’s breach of this Agreement; (ii) the negligence, bad faith, intentional or willful misconduct of Seller or Seller’s employees, agents, subcontractors, or representatives (collectively ” Seller Representatives”); (iii) bodily injury, death, or damage to personal property arising out of or related to Seller’s or Seller’s Representatives’ acts or omissions; (iv) Seller’s failure to comply with any applicable Laws; (v) Seller’s Representatives alleging employment with Buyer; and (vi) the Goods/Services or any of its parts infringing, violating or misappropriating IP Rights.
11. KAIVAC’S INTELLECTUAL PROPERTY INFRINGEMENT INDEMNIFICATION. Kaivac will indemnify, defend, and hold harmless Seller against any Damages incurred by Seller to the extent arising out of or relating to (or in the case of third-party claims, alleging) the Goods or any of its parts infringing, violating or misappropriating IP Rights arising out of or relating to specifications provided by Kaivac and not otherwise offered by Seller as an option where such infringement would not have arisen but for the specifications.
12. INDEMNIFICATION PROCEDURE. A Party seeking indemnification in accordance with section 10 or 11 (an “Claimant”) will notify the other Party (“Indemnitor”) within sixty (60) calendar days after Claimant’s receipt of notice of the commencement of any third-party legal proceeding. A Party’s failure to notify will only relieve the Indemnitor from its indemnity obligation to the extent the Indemnitor can demonstrate it has suffered material prejudice resulting from a failure to notify in accordance with the preceding sentence. The Indemnitor will assume, at its expense, the defense of any such third-party legal proceedings with legal counsel reasonably acceptable to Claimant and is entitled to settle any such third-party legal proceedings with Claimant’s written permission, not to be unreasonably withheld or delayed. Claimant will, at Indemnitor’s cost and request, reasonably cooperate with Indemnitor in the defense of such action. The Indemnitor will reimburse Claimant for any damage assessed against Claimant. 
13. SELLER’S INTELLECTUAL PROPERTY REMEDIATION. If any Goods/Services, or any of their parts, become, or are likely to become, subject to an IP Rights infringement, violation or misappropriation claim, then Seller will, at its expense, promptly secure the rights necessary to continue using the Goods/Services and any of its parts, or if Seller is unable to secure such rights, promptly replace or modify the Goods/Services or their parts.
14. OWNERSHIP OF INTELLECTUAL PROPERTY. Seller retains ownership of any creative idea, design, development, invention, works of authorship, know-how, or work results (“Creations”) and IP Rights owned by Seller prior to the Effective Date, and Seller owns any Creations and IP Rights created by or on behalf of Seller to the extent not created as a direct result of the Goods/Services (collectively, “Seller’s IP”). Seller grants Kaivac a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, assignable, sub-licensable license under Seller’s IP to: (i) practice in any way to receive the full benefit of the Goods/Services and any resulting work product; and (ii) copy, maintain, support, modify, enhance or further develop Seller’s IP. 
    
    Kaivac retains ownership of Creations and IP Rights owned by Kaivac prior to the Effective Date, and Kaivac owns any Creations and IP Rights created by or on behalf of Seller to the extent created as a direct result of the Goods/Services (collectively, “Kaivac’s IP”). Kaivac’s IP created by Seller is considered a work made for hire. To the extent it is not considered work made for hire, Seller assigns to Kaivac royalty-free, worldwide, perpetually, and irrevocably, all rights in Kaivac’s IP to the extent permitted by law. If such assignment is not legally permissible, Seller grants Kaivac an exclusive, royalty-free, worldwide, perpetual, irrevocable, assignable, sub-licensable and unrestricted license to such Kaivac IP to the extent permitted by law. Upon Kaivac’s request, Seller will execute any documents necessary to document, secure or perfect Kaivac’s IP. Buyer grants Seller non-exclusive, royalty-free, worldwide license under Buyer’s IP necessary to manufacture, package and distribute the Goods and perform the Services. Seller will cause its employees or representatives to assign to Seller any Kaivac IP created by Seller and to comply with Seller’s obligations set forth in this section. To the extent legally permissible, Seller waives any moral rights in Buyer’s IP, including but not limited to the right to be named as author, the right to modify, the right to prevent mutilation and the right to prevent commercial exploitation. To the extent such waiver is not legally permissible, Kaivac will have the irrevocable right to exercise any moral rights in Kaivac’s IP on Seller’s behalf to the extent permitted by law.
15. GENERAL COMPLIANCE WITH LAWS. Seller warrants that the Goods will be manufactured, sold, and rendered in compliance with all applicable federal, state, local law, orders, rules, ordinances, directives, and regulations and will comply with all applicable country laws (collectively, the “Laws”), including without limitation, (a) all sanctions and anti-boycott laws of the United Stated State of America; (b) applicable U.S. export control laws and regulations laws regarding the use, export, re-export, release of any technology, technical data or Goods provided to Seller by Kaivac; (c ) applicable trade laws, including the U.S. Trade Agreement Act and the laws and regulations of U.S. Customs and Border Protection and the Federal Trade Commission; (d) Regulation (EC) No. 1907/2006 of 18 December 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (REACH) that applies or affects the Goods; and (e) any anti-money laundering, anti-corruption, and anti-bribery laws, including the Foreign Corrupt Practices Act and the UK Bribery Act and Proceeds of Crime Act. Seller will promptly notify Kaivac if Seller becomes aware of or receives any inquiry or request from any governmental body relating to Seller’s performance under the Agreement. Seller will indemnify and hold Kaivac harmless from and against any liability, claims, demands or expenses (including, without limitation, legal or other professional fees) arising from or relating to Seller’s noncompliance.
16. CHILD LABOR AND FORCED LABOR. Neither Seller nor Seller’s subcontractors will employ children, forced labor, compulsory labor, slavery, prison labor, indentured labor, bonded labor or use corporal punishment or other forms of mental and physical coercion as a form of discipline. In the absence of any Laws governing the minimum age, an individual of less than 15 years of age shall be considered a child. If applicable Laws set a minimum age below 15 years of age but are in accordance with exceptions under the International Labor Organization Convention 138, then the lower age will apply.
17. CONFIDENTIALITY. Seller will not disclose any Kaivac Confidential Information For purposes of this Agreement, the terms “Kaivac Confidential Information” shall include nonpublic information, in whatever form,  disclosed by Kaivac or its representative or agent, to Seller (including Seller’s derivative notes and summaries thereof), relating to research and development, test results, consultant reports, methods of manufacture, trade secrets, business plans, customers, vendors, financial data,, cost of Goods, personnel data, Goods and other material or information relating to Kaivac’s current or anticipated business to another party and will use Kaivac Confidential Information only in connection with its obligations under the Agreement. Seller may make Kaivac Confidential Information available to its employees, agents or subcontractors who have a legitimate need to know such information for purposes of carrying out Seller’s obligations under the Agreement. Seller will indemnify and hold harmless Kaivac from any breach of confidentiality caused by Seller or its employees, agents or subcontractors, and Seller will take all commercially reasonable precautions to prevent and detect any unauthorized disclosure by Seller and/or its employees, agents or subcontractors.
    
    Except for trade secrets, Seller’s confidentiality obligations with respect to Kaivac Confidential Information will expire five years after initial disclosure and do not apply to the extent Seller can prove the information was (a) known to the public at the time of Kaivac’s disclosure to Seller or entered the public domain thereafter through no fault of Seller; (b) rightfully communicated to Seller by a third party who was not under any obligation of confidentiality; (c) was independently developed by Seller without reference to any Kaivac Confidential Information as clearly demonstrated by Seller’s internal written documents. The burden of proof lies with the Seller. At Kaivac’s request or upon termination of the Agreement, Seller will promptly return or have Seller’s senior officer certify Seller’s return destruction of all Kaivac Confidential Information.
    
    Seller will not, without Kaivac’s prior written consent, use Kaivac’s name or trademarks in any advertising, promotion, or communication to the public or advertise, publish or announce the existence of the Agreement, the Parties’ relationship or Kaivac’s purchase of Goods/Services.
18. INSURANCE. Prior to the commencement of the Agreement, and for at least three (3) years following the termination of the Agreement, Seller will provide, pay for and maintain in effect the following types and amounts of insurance with insurance companies with A.M. Best ratings of A- or higher and otherwise satisfactory to Kaivac:
    • Workers Compensation
      • statutory minimums for applicable state(s) of operation.
    • Employer’s Liability
      • $500,000 per each accident,$500,000 per each employee
      • $500,000 policy limit.
    • Auto Liability (owned, non-owned, hired) Bodily Injury
      • $1,000,000 combined single limit
      • $1,000,000 combined single limit
      • $1,000,000 combined single limit
    • Property Damage
      • All risks covered at replacement cost.
    • Commercial General Liability
      • $1,000,000 each occurrence.
    • Bodily Injury & Property Damage
      • $2,000,000 aggregate, including Contractual Liability
    • Umbrella
      • $5,000,000 aggregate

    Upon Kaivac’s reasonable request, Seller will obtain a Certificate of Insurance evidencing the coverage and send a copy to:

    
    

    Kaivac Inc.Office of General Counsel2680 VanHook AvenueHamilton, OH 45015, USA

    
    

    at the commencement of the Agreement. Each certificate will provide that thirty (30) days’ prior written notice will be given Kaivac in the event of cancellation or material change in any of the policies. Such policies will name Kaivac Inc. and its subsidiaries, directors/officers and employees, all as additional insureds, will provide that the coverage provided by Seller’s insurance will be primary and non-contributing with respect to any insurance carried by Kaivac and will be endorsed to provide that there are no subrogation rights against Kaivac or its affiliates.

19. SUPPLIER CODE OF CONDUCT. Seller acknowledges receipt of a copy of Kaivac’s Supplier Code of Conduct (“Supplied Code”) located at https://shop.kaivac.com/supplierguide. Kaivac may update from time to time in its sole discretion. The seller will conduct itself and otherwise perform consistently with the Supplier Code. Seller will notify Kaivac promptly if Seller becomes aware of any conduct by Seller or its employees, agents, representatives or subcontractors that is inconsistent with the Supplier Code.
20. GOVERNING LAW. The Agreement will be governed by the laws of, and the resolution of any dispute will be held in, the State of Ohio (USA) which is the jurisdiction from which Kaivac that issued the Agreement, without giving effect to the choice of the law provisions thereof. The United Nations Convention on Contracts for the International Sales of Goods (UNCISG) will not apply. The Agreement may be translated into languages other than English, but in the event of a conflict between the English version and any translation the English version will control.
21. FORCE MAJEURE, DISASTER RECOVERY. Neither Party will be responsible for or liable for failure to perform resulting directly or indirectly from contingencies beyond its control including but not limited to, fires, floods, explosions, accidents, acts of God, pandemics and epidemics, declared and undeclared wars or riots. In the event of a force majeure event, the Party delayed in performing will promptly give notice to the other Party and will use commercially reasonable efforts to avoid or minimize the delay. Parties cannot avoid liability if they can prevent non-performance through reasonable precautions or commercially accepted processes or provide substantively similar performance through use of substitute services, alternate sources or work-around plans.
    
    Within thirty (30) days of the formation of the Agreement, Seller will have a plan for continuation of production and delivery of Goods in the event of disaster or other interruption at Seller’s or its subcontractor’s respective facilities. Such disaster recovery plan will also include remedial, redundancy, and back-up measures for Seller’s dependence on a single source for a material, component, or service, and reasonable, state-of-the-art protective measures against data breach and other cyber- related threats. Upon Kaivac’s request, Seller will provide a complete copy of such disaster recovery plan to Kaivac.
22. KAIVAC OWNED AND FURNISHED MATERIALS. Seller retains title to any tooling or materials owned or furnished by Kaivac in connection with this Agreement. Upon Kaivac’s request, all tooling, articles and materials shall be promptly returned to Kaivac, and Seller shall reimburse Kaivac for any lost or damaged tooling, articles or material. 
23. SUBCONTRACTING AND ASSIGNMENT. The seller will not transfer, assign, or sublicense any of its rights, obligations or interests under these terms and conditions without Kaivac’s prior written consent. Seller is responsible for subcontractor’s noncompliance with these terms and conditions and will obtain a signed agreement from each subcontractor binding the subcontractor to these terms and conditions Kaivac will not be liable for any damages and costs caused by Seller’s failure to pay a subcontractor.
24. LIMITATION OF LIABILITY.  Nothing in this Agreement shall exclude or limit (i) Seller’s liability under Sections 10 Indemnification and Section 17 Confidentiality, (ii) Seller’s liability for fraud, personal injury, or death caused by Seller’s or its employees’, agents’ or representatives’ negligence or willful misconduct. Except as set forth in the immediately preceding sentence, neither Party be liable to the other Party or a third party for any special, indirect, incidental, consequential, punitive, or exemplary damages arising from this Agreement, whether based in tort or breach of contract or other basis, even if such Party has been advised of the possibility of such damages.
25. CONTRACTOR STATUS. Seller will perform under this Agreement as an independent contractor to Kaivac. Seller acknowledges that Kaivac has no employment relationship with, or right or duty to select or direct any of Seller’s employees, subcontractors, or other representatives.
26. SEVERABILITY. If any provision of this Agreement is found to be 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 jurisdiction.
27. MODIFICATION AND WAIVER. Any modifications of this Agreement or waiver of rights must be in writing stating specifically that it amends the Agreement and be signed by an authorized representative of both Parties. A delay or failure to exercise a right or remedy under the Agreement will not be construed to be a waiver of that right or remedy.