GENERAL TERMS AND CONDITIONS OF PURCHASE

 1.  Definitions.  The term "Buyer" shall mean Silco, Inc. and its subsidiaries and affiliates (such entities collectively referred to as “Silco” or “Buyer”). The term "Seller" shall mean the company or other entity that is selling or providing goods, materials or services to Silco including as may be listed on Silco’s Purchase Order (collectively the "Goods").  Collectively Buyer and Seller are referred to as the "Parties" and individually as a "Party."

 2. Acceptance of a PO.  Buyer’s purchase order (sometimes referred to as “PO”) represents an offer to purchase by Buyer expressly and solely as set forth in the PO, which expressly incorporates these General Terms and Conditions (collectively “Terms”), including, without limitation, as to price, quantity and delivery dates. To the extent of any conflict between the provisions of a particular PO and these General Terms and Conditions, the latter control.  The PO is not an acceptance of any quotation, proposal or other document or term submitted by Seller and the PO and these Terms supersede and replace all such documents and other terms of Seller.  Acceptance by the Seller of Buyer’s PO is governed by the PO, including the Terms.   Buyer expressly rejects any new, additional or conflicting terms or conditions in any sales or other document submitted by Seller and such terms will not become part of any agreement with Buyer.  It is expressly understood and agreed that this PO incorporates by reference all the terms and conditions of the Uniform Commercial Code (as adopted in Ohio) that provide protection to buyers, including without limitation with respect to express and implied warranties, buyer remedies and all other rights of Buyer.  Buyer expressly rejects any attempt to limit these protections. Seller accepts this PO by: (i) written acknowledgement sent to Buyer; (ii) performance, including shipment of the Goods (or performance of ancillary services of the type identified in the PO to or for Buyer); or (iii) failure within three (3) business days after receipt to expressly reject the PO.   

3. Price.  All prices are F.O.B. the location designated by Buyer in the PO unless otherwise specified in writing by Buyer.  All prices will be as set forth on the PO, are inclusive of all freight and other charges by Seller, and may not be changed absent express written consent from Buyer expressly referring to the applicable PO.

4. Taxes.  Prices for the Goods as listed on the PO are inclusive of sales or other taxes, whether federal, state or local.  Any taxes levied by government authorities at any level (federal, state or local) in connection with the Goods referenced in the PO, including with respect to their transport, are the responsibility of Seller. 

 5. Payment. Unless otherwise stated in the PO, Buyer’s payment for Goods delivered in accordance with the Terms will be in U.S. dollars on a net sixty (60) day basis calculated from the date of receipt of accurate invoices submitted to Buyer in accordance with the Terms.  All invoices must be submitted not later than 180 days after delivery of the Goods that are the subject of the PO, after which time Seller’s right to payment is waived.  Buyer shall have no obligation to pay for Goods that are defective or not in compliance with the warranties of Seller or otherwise not in conformance with the requirements of the PO or these Terms.

6. Delivery/Risk of Loss/Title Transfer.  TIME IS OF THE ESSENCE with respect to delivery of Goods on the dates indicated in the PO.  Except as otherwise expressly provided in these Terms, title and risk of loss to Goods will transfer to Buyer upon Seller’s successful delivery of the Goods without damage or defect to the location identified in the PO.  All Goods will be packaged in accordance with specifications set forth in these Terms or attached to the PO, or if no such specifications are provided, in accordance with industry standards to ensure Goods are not damaged during transport. Except as expressly agreed otherwise in writing by the Parties for any particular shipment, if Goods are delivered in a damaged condition or are not delivered on time or otherwise in accordance with the provisions of the PO, Buyer reserves the right to reject the shipment, in which case title and risk of loss will remain with Seller.  Moreover, in such instances and in addition to any other applicable rights or remedies available, Buyer may purchase alternative Goods from a different supplier, with all reasonable costs of such replacement Goods at Seller’s cost and expense.

7. Inspection and Acceptance of Products. Seller, at its cost, will inspect all Goods prior to shipment or delivery to Buyer to ensure they are in compliance with these Terms and the PO.  Seller will also allow Buyer a reasonable opportunity to conduct a visual inspection of the Goods at the point of delivery, provided that any inspection by Buyer will not constitute a waiver of any rights or claims with respect to defective or non-conforming Goods or as to any other rights or remedies available to Buyer elsewhere in these Terms, at law or in equity.  In the event Goods do not conform to the Terms or the PO, Buyer may, at its option and in addition to any other rights or remedies in these Terms, at law or in equity: (i) reject and refuse delivery; (ii) return the non-conforming Goods to Seller at Seller’s expense for a full refund; or (ii) obtain replacement Goods of equivalent quality and quantity as set forth in the PO from another supplier at Seller’s expense.

8. WARRANTIES. IN ADDITION TO ANY WARRANTY, IMPLIED OR OTHERWISE, AVAILABLE UNDER THE UNIFORM COMMERICAL CODE OR AT LAW, OR THAT MAY PROVIDED BY ANY MANUFACTURER OR OTHER THIRD PARTY, SELLER WARRANTS THAT THE GOODS AND SERVICES PROVIDED OR DELIVERED BY SELLER:  (A) ARE NEW, OF THE GRADE AND QUALITY SPECIFIED BY BUYER AND FREE FROM DEFECTS IN DESIGN, MANUFACTURE AND MATERIAL; (B) CONFORM TO APPLICABLE SPECIFICATIONS, DRAWINGS, SAMPLES AND OTHER DESCRIPTIONS PROVIDED BY SELLER; (C) ARE MERCHANTABLE, SUITABLE FOR THEIR INTENDED PURPOSES AND DO NOT INFRINGE ANY INTELLECTUAL OR OTHER PROPERTY RIGHTS OF ANY THIRD PARTY; (D) HAVE BEEN MANUFACTURED, SHIPPED, LABELED AND OTHERWISE PREPARED AND SOLD IN FULL COMPLIANCE WITH ALL APPLICABLE LAWS AND REGULATIONS.  SELLER FURTHER WARRANTS THAT IT HAS GOOD AND MARKETABLE TITLE TO THE GOODS WITHOUT LIENS, SECURITY INTERESTS, ENCUMBRANCES OR OTHER DEFECTS IN TITLE OF ANY KIND AND HAS CONVEYED SUCH TITLE FREE AND CLEAR TO BUYER. 

All warranties set forth herein shall survive any inspection, delivery, acceptance or payment for the Goods, and run to the benefit of Buyer, its successors, assigns, customers and any end users of the Goods.  In the event of any breach of Warranty by Seller, Buyer expressly preserves all remedies available at law or in equity, including as provided under the Uniform Commercial Code.  

9. Insurance:  During the any performance related to or specified under the PO, Seller shall maintain the following insurance coverages: 

·        Workers Compensation with Statutory Minimum limits

·        Commercial General Liability and property casualty insurance with comprehensive coverage and policy limits totaling $3,000,000 per occurrence with a $5,000,000 annual aggregate. Such policies will provide at least the following coverages: (i) premises and operations; (ii) product and completed operations; (iii) broad form contractual; and (iv) independent contractor/subcontractor. 

·        Property casualty insurance with comprehensive coverage and policy limits totaling $3,000,000 per occurrence with a $5,000,000 annual aggregate;

·        Umbrella or Excess Liability with follow form coverage and limits of $5,000,000 per occurrence and $5,000,000 annual aggregate.  

·      Comprehensive Automobile Liability insurance and umbrella coverage totaling $1,000,000 combined single limit per occurrence.  

All the above coverages must be primary with no deductibles, copays or similar provisions requiring contribution by the named insured in excess of $10,000 and, with the exception of worker’s compensation coverage, will name Buyer as an additional insured.  All coverages will contain a waiver of subrogation, including as against Buyer. Carriers of the above coverages must maintain an A+ rating or better with AM Best, unless otherwise approved in writing by Buyer.  Seller agrees to provide Buyer with a certificate of insurance reflecting the above requirements with the first delivery of Goods and upon the request of Buyer not more than twice annually during any year in which Goods have been shipped or delivered to Buyer. 

10. Remedies/Non-Waiver.  Buyer’s remedies provided herein are cumulative and in addition to any other or further remedies provided by law or in equity. Any waiver by Buyer of Seller’s breach of a PO or the Terms must be in writing and shall not operate or be construed as a waiver by Buyer of any subsequent breach by Seller.   Buyer’s failure, delay or omission (if any) in exercising any right or remedy pursuant to a breach, default or other act or omission of or by Seller will not limit, affect or waive Buyer’s right or remedy with respect to that or any other future breach, default, act or omission.

11. Force Majeure.  Buyer will not be liable for any failure or delay in its acceptance of the Goods or for any other loss or damage sustained by Seller from any cause beyond Buyer’s control, including, but not limited to, provisions of law or governmental regulations, accident, explosion, fire, windstorm, flood, epidemic, pandemic or other Act of God or casualty, strike, lockout, or other labor difficulty, riot, war, terrorist acts, insurrection, shortage of or inability to secure labor, raw materials, production or transportation facilities.  In the event Seller’s performance is affected by any force majeure event, Seller will immediately notify Buyer in writing and Buyer may either (a) extend the time of performance, or (b) terminate the uncompleted portion of the Order at no cost to Buyer.

12. No Third-Party Rights or Beneficiaries.  Nothing in these Terms or the PO is intended or may be construed to convey or provide rights to any third parties and no rights or obligations stated or implied in the PO may be enforced by such third parties.

13. Compliance with Laws.  SEE WARRANTY SECTION.

14. Assignment.  Seller may not assign, transfer or subcontract any of its rights or obligations under any PO or these Terms without prior written consent of Buyer. 

15. Indemnity.  Seller shall defend, indemnify and hold Buyer harmless from and against all liability, loss, costs, expenses and damages (including attorneys’ fees) of any kind or character (collectively “Losses”) arising out of or resulting from: (i) any claim that the Goods are defective, negligently or improperly designed or manufactured or otherwise determined to be the cause or a contributing factor to death, personal injury, property damage, or economic or other losses of any kind;  (ii) any claim that the Goods or their manufacture, sale, or labeling fail to comply with any governmental requirement or applicable law or regulation or is otherwise inadequate or misleading in any respect;  (iii) Seller’s negligence, recklessness or other act or omission; and/or (iv) any claim that the Goods violate or infringe any patent, trademark, trade dress, copyright or other property right (intellectual or otherwise) of any third party.  Nothing in this paragraph is intended or may be interpreted to require Seller’s defense and indemnification of Buyer from Losses caused by the sole negligence or fault of Buyer.  

16. Relationship Between the Parties.  The relationship between the Seller and Buyer is that of independent entities.  Nothing in the PO may be construed to create any partnership, joint venture, agency or other relationship between them except as stated in a writing signed by authorized representatives of both Buyer and Seller.

17. Waiver.  Any waiver by Buyer of any provision of these Terms must be in writing, signed by Buyer’s authorized representative and refer specifically to these Terms.  Any waiver in one instance does not imply or suggest waiver in another unless the writing in the previous sentence expressly confirms that intent by Buyer.  Neither Buyer’s failure, delay nor partial exercise of any right, remedy, power or privilege under these Terms will operate as a waiver of Buyer’s rights or privileges under these Terms, at law or in equity, including to insist upon strict performance by Seller in accordance with the Terms.

18. Termination.  Buyer may terminate any PO upon notice to Seller with immediate effect and without penalty or liability to Seller or other third parties when any of the following circumstances or events exist or occur: (i) any breach by Seller or its agents of any of the Terms or the PO; (ii) prior to Seller’s acceptance of the PO and/or before Seller has incurred any costs or expenses in connection with such PO; and (iii) in the event of any bankruptcy, liquidation, dissolution or winding up of Seller.  In addition, Buyer may terminate any PO for convenience upon written notice to Seller.  In the event of Buyer’s termination for convenience, Seller will mitigate any costs or expenses involved and will be entitled to recover only its actual direct costs incurred due to the termination for convenience prior to the date of the termination notice.  In no event will Seller be entitled to reimbursement of expenses in excess of the value of the PO terminated.  All costs or expenses for which Seller seeks from Buyer will be subject to audit by Buyer and Seller will make all of its books and records reasonably necessary to conduct such audit available to Buyer or its designated accountants or representatives.  

19.  Changes.  Buyer may direct Seller to make changes to the Goods that are the subject of a PO, including with respect to quantities and delivery dates.  Seller shall cooperate in good faith with all such requests and provide Buyer within five (5) days of the change request written notice of any increase in Seller’s cost of performance or delay in delivery date and of any proposed additional charges to Buyer.   Upon mutual agreement, Buyer will issue a written change order to Seller reflecting any additional agreed upon charges, delivery dates or other terms.  Absent the written notice, Seller will comply with Buyer’s change request at the prices and other terms set forth in the relevant PO without modification or upcharges.  If no agreement is reached as to the requested change, Seller will honor the PO as originally accepted by Seller.

20. Goods Imported or Exported by or for Seller. Seller assumes responsibility and liability for compliance with all U.S. and international laws, treaties and customs rules and regulations applicable to the import or export of Goods purchased by Buyer, including without limitation determination and compliance with all export licenses and authorizations.

21. Entire Agreement; Modification.  The PO, including the Terms and any Buyer attachments to the PO, represents the entire and final agreement between the Parties with respect to the subject matter the PO addresses, and supersedes all prior or contemporaneous written or oral understandings, agreements, negotiations, representations, warranties and communications between the Parties, both oral and written. Provided, however, that in the event the Parties have negotiated a written Agreement between them signed by both Parties that addresses the same Goods and shipments that are the subject of a PO, and there is a conflict between that negotiated written agreement and the PO Terms, the written agreement will control on any conflicting provisions.   All non-conflicting provisions of such written agreement will supplement these Terms.  EXCEPT AS EXPRESSLY PROVIDED ABOVE, THESE PO TERMS MAY BE MODIFIED ONLY THROUGH A WRITTEN DOCUMENT SIGNED BY AN AUTHORIZED BUYER REPRESENTATIVE SPECIFICALLY REFERRING TO THE TERMS OF THIS PO AND THAT THEY ARE MODIFIED BY THE SIGNED WRITTEN DOCUMENT.

22. Severability.  Buyer and Seller agree to perform all further acts and execute, acknowledge, and deliver any documents reasonably necessary, appropriate or desirable, to carry out the provisions of the PO and the Terms. If any one or more of the provisions of a PO or the Terms is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such finding will not affect the validity, legality, and enforceability of the remaining provision, all of which will be interpreted and applied to give them maximum effect as to validity, legality and enforceability. 

23. Venue; Governing Law. THE PARTIES AGREE THAT JURISDICTION AND VENUE FOR ANY ACTIONS BROUGHT BY EITHER PARTY RELATED TO OR ARISING FROM A PO, THE TERMS OR ANY PURCHASE OR SALE OF GOODS OR SERVICES BETWEEN BUYER AND SELLER SHALL BE EXCLUSIVELY IN THE STATE COURTS OF LAKE COUNTY, OHIO OR IN THE FEDERAL DISTRICT COURT FOR THE NORTHERN DISTRICT OF OHIO.  THE PARTIES FURTHER AGREE THAT THE LAW OF OHIO WILL APPLY TO ANY DISPUTE BETWEEN THEM WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES.