TERMS AND CONDITIONS FOR PURCHASES

HFW INDUSTRIES, INCORPORATED ("BUYER")

  1. PRICE AND PAYMENT: Unless otherwise expressly stated on the front hereof, the price herein specified shall exclude all sales, use and excise taxes and duties which either party is required to pay with respect to the sale of the goods but shall include all charges for packing and loading. Any taxes, freight and duties shall be shown as separate items on invoices. Payment will be made in accordance with the applicable provisions of this purchase order. The time for payment of invoices or for accepting any discounts offered shall run only from the date correct invoices are received by Buyer.

  2. CHANGES-TERMINATIONS:
    1. Buyer may, by written change order, make changes in the specifications or increase or decrease the quantities originally ordered. If any such change affects the amount due or the time of performance hereunder, an equitable adjustment will be made.
    2. Buyer may terminate this agreement by written notice as to all or any part of the goods shipped after receipt by Seller of said notice. After notification, Buyer’s only obligation shall be to pay for goods shipped to Buyer prior to receipt by Seller of notice of termination.

  3. DELAYS: Time is of the essence. Seller shall not however be liable for delays or failure to ship due to causes beyond its control and not due to its fault or negligence provided it gives prompt notice of such cause to Buyer. If Seller does not ship as ordered on or before the shipping date shown on this order, or if Seller shall default in any respect or become insolvent, or if a petition in bankruptcy or insolvency is filed by or against Seller under any state or federal law, Buyer may terminate this order, or the undelivered part thereof, without further liability. In addition to Buyer’s right of termination as herein provided, Buyer’s rights and remedies shall be as provided by law or as otherwise provided herein and shall, in no event, be limited by terms proposed by Seller.

  4. NON-WAIVER: Failure of Buyer to insist upon strict performance of any terms and conditions hereof, or failure or delay to exercise any rights or remedies provided herein or by law, or to properly notify Seller in the event of breach, or the acceptance of or payment for any goods hereunder, or approval of design, shall not release Seller of any of the warranties or obligations of this purchase order and shall not be deemed a waiver of any right of Buyer to insist upon strict performance hereof, or any of its rights or remedies as to any such orders, regardless of when shipped, received or accepted, or as to any prior or subsequent default hereunder, nor shall any purported oral modification or rescission of this order by Buyer operate as a waiver of any of the terms hereof.

  5. INSPECTION-NONCONFORMANCE: Buyer shall have the right to inspect and test the goods at any time prior to shipment and to final inspection within a reasonable time after delivery. The goods shall not be deemed accepted until after said final inspection. The making or failure to make any inspection of, payment for, or acceptance of the goods, shall in no way impair Buyer’s right to reject nonconforming goods or to avail itself of any other remedies to which Buyer may be entitled, notwithstanding Buyer’s knowledge of the nonconformity, its substantiality, or the ease of its discovery.

    Buyer may return any materials which are defective, unsatisfactory, or of inferior quality or workmanship, or fail to meet the specifications of this order. Such materials shall, unless used by Buyer beyond a reasonable time necessary to determine a defect, remain the property of the Seller and may be returned at Seller’s risk and expense.

    Buyer shall, at its sole option, either give to Seller a reasonable time to correct the nonconformance or cancel the order as to such materials and retain its rights with respect to cover as provided by law.

  6. WARRANTIES - GUARANTEES: Seller warrants that the goods shall be free from defects in design, material, workmanship and title, shall conform in all respects to the terms of this purchase order, shall be fit and suitable and perform satisfactorily for the purposes and under the conditions made known by Buyer or reasonable to be inferred, and shall be at least equal to nationally recognized standards or codes or of the best quality, if no quality is specified. This is in addition to any warranty or service guarantee offered by Seller or implied or provided by law, if it appears within one (1) year from the date of placing the goods into service for the purpose for which they were purchased that the goods or any part thereof do not conform to these warranties, and Buyer so notifies Seller within a reasonable time after its discovery. Seller shall thereupon promptly correct such nonconformity at its sole expense. Goods used to correct such nonconformity shall be similarly warranted for one (1) year. This one year guarantee does not affect Buyer’s right to commence an action against Seller within the applicable statute of limitations provided by law. Except as otherwise provided in this purchase order, Seller’s liability hereunder shall extend to all damages proximately caused by the breach of any of the foregoing warranties or guarantees.

  7. PATENT INDEMNITY: Seller shall indemnify and save harmless Buyer from any expense, loss, cost or damage resulting from any allegation or charge that any goods furnished by Seller hereunder or the use thereof for the purpose for which the goods are sold, constitutes an infringement of any patent and Seller shall assume the defense of Buyer at Seller’s expense against such charge provided that Buyer shall promptly notify Seller of any implied or actual charge of infringement and furnish Seller, at Seller’s request and Seller’s expense, all assistance and information available to Buyer pertinent to the charge of infringement. Buyer shall however have the right to be represented in such matters by counsel of Buyer’s own selection acting at Buyer’s own expense. Seller shall, at any time up to ninety (90) days after it is finally adjudicated that such infringement exists, at no expense to Buyer, minimize Buyer’s damage or liability:
    1. By altering the goods to make them non-infringing, provided that such altered non-infringing goods will fulfill substantially the same function as they fulfilled prior to such alteration, or
    2. By exchanging non-infringing goods which will fulfill substantially the same function for the infringing goods which in that case become Seller’s property, or
    3. By obtaining a settlement or license permitting Buyers use of any infringing goods.

      The indemnity shall not apply to goods for which Buyer provided and controlled the detailed design.

  8. COMPLIANCE: Seller warrants that all goods and services sold hereunder shall have been produced, sold, delivered and furnished in strict compliance with all applicable laws and regulations to which they are subject. Seller shall execute and deliver such documents as may be required to effect or to evidence compliance.

  9. INDEMNITY: Seller will protect, indemnify and hold Buyer harmless against any and all claims, causes of action, damages and expenses (including reasonable attorney’s fees) which may arise in connection with the fulfillment of this purchase order. Any limitation of the liability or responsibility of Seller by provisions of Seller’s delivery tickets or other instruments shall be void and of no effect.

  10. SHIPPING: Seller shall suitably pack, mark and ship in accordance with instructions, if any, from Buyer and the requirements of common carriers to secure the lowest transportation costs. Seller shall be liable for any difference in freight charges or damage to the materials by its failure to comply therewith. Seller will send Buyer, as soon as material has been forwarded, a notice of shipment giving order number, car number and initials if any, also condensed description of material, otherwise, Seller is liable for any demurrage charges incurred.

  11. APPLICABLE LAW-DEFINITIONS: The definition of terms used, interpretation of this agreement and the rights of all parties hereunder, shall be construed under and governed by the laws of the State of New York. Any and all lawsuits and legal actions involving this agreement shall be commenced and remain in New York State Supreme Court, Erie County, or the United States District Court for the Western District of New York. The goods means those articles, equipment, materials, supplies, drawings, data, and other property and all services including design, delivery, installation, inspection, testing and expediting, specified or required to furnish the goods ordered by this purchase order.

  12. NO ASSIGNMENT: Any assignment of this purchase order or of any rights hereunder or hypothecation thereof in any manner, in whole or in part, by operation of law, or otherwise, without prior written consent of Buyer, shall be void.

  13. COMPLETE AGREEMENT: This purchase order, issued by Buyer, including these general conditions and any specifications or attachments hereto, constitutes the sole and entire agreement between the parties. The Seller’s quotation can be incorporated in and made a part of this purchase order only to the extent of specifying the nature and description of the goods ordered, and then only to the extent that such items are consistent with the other terms of this purchase order. No other terms or conditions shall be binding upon the Buyer unless accepted by it in writing.