1. COMPLIANCE WITH LAWS. Seller agrees to comply with all applicable laws, rules, regulations and legal orders in performing this Order. Without limiting the foregoing, Seller agrees to comply with all applicable provisions of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1976, and the rules, regulations and relevant orders of the Secretary of Labor. Seller represents that all articles, materials, goods and services (collectively, as applicable, “Items”) furnished against this Order comply with the Occupational Safety and Health Act (29 U.S.C. 655, as amended). Seller certifies that all Items covered by this Order are in compliance with the Fair Labor Standards Act, as amended, and all regulations and orders issued thereunder.
2. EFFECT OF ORDER. This Order constitutes an offer and can be accepted only on its own terms. Once accepted, this Order shall constitute the entire agreement with respect to the subject matter hereof between Seller and Buyer and may not be added to or varied except by a writing signed by both parties. All terms, conditions and instructions on the face of this Order and on the reverse side constitute the terms and conditions of purchase and sale. Any inconsistent or additional terms contained in any invoice or other document are not a part of the agreement unless signed by both parties.
3. DELIVERY DATE. TIME IS OF THE ESSENCE FOR THIS ORDER. Buyer’s production schedules are based upon the agreement that the Items ordered will be delivered by the date specified on the face of this Order. If deliveries are not made at or prior to the required delivery date, Buyer reserves the right to cancel this Order, without charge to Buyer, to purchase the Items elsewhere and hold Seller liable for any costs, expenses, losses or damages resulting therefrom. The delivery date is the date the Items arrive on board at the destination.
4. DESTINATION. The term “F.O.B.” as used on the face of this Order is a destination term, and it identifies when title passes, when the risk of loss changes to Buyer and when the delivery date is met. See paragraph 5 for insurance, taxes, freight, etc.
5. TAXES, FREIGHT, INSURANCE, ETC. Unless set forth on the face of this Order, all sales, use or other taxes in effect at the date of the Order, freight, insurance, packing, crating, handling, shipping and all other incidental charges, expenses and costs incident to delivery to Buyer are the responsibility of Seller to obtain and pay for. No additional charge may be made therefor unless specified in writing.
6. ROUTING. Seller agrees to ship by the means set forth on the face of this Order. If “ROUTING” is left blank on the face of this Order, Seller may select any commercially responsible method of shipment.
7. REPORTS. All mill test reports or material certificates required on the face of this Order are necessary parts of this Order, shall be submitted in triplicate and Seller’s invoices will not be due or payable until this information has been received by Buyer.
8. DESCRIPTION. All Items shipped must conform exactly to descriptions set forth on the face of this Order. No substitutions are permitted unless agreed to in writing by Buyer.
9. QUANTITIES. Shipments must be in exact amounts and separate loads or partial loads are not permitted unless otherwise specified on the face of this Order. Excess shipments are subject to Buyer’s rejection, credit and return at Seller’s expense and risk. Back orders are not permitted unless agreed to in writing by Buyer. Buyer may cover shortages or back orders at Seller’s expense. Buyer’s count of the amounts in any shipment shall be accepted as correct.
10. PRICE. The price appearing on the face of this Order shall be the entire price to Buyer unless otherwise agreed in writing. All freight and insurance must be prepaid unless otherwise specified in writing. If a price term is not stated, the price shall be the lower of the last price quoted to Buyer at the time of shipment or the prevailing market rate at the time of shipment.
11. PAYMENT TERMS. Unless otherwise agreed, payment will be made within a commercially reasonable time. Any cash discount shall be calculated from the later of the date of receipt of the invoice or acceptance of the Items.
12. DOCUMENTATION REQUIRED. Buyer requires the following documentation from Seller: (a) acknowledgement copy of this Order within 15 days of the order date on the face of this Order; (b) invoice in triplicate; (c) Bill of Lading; (d) original freight or express bill unless shipment is both prepaid and no separate charge is made to Buyer as agreed; (e) if required, test reports in triplicate; and (g) such other documentation as may be reasonably requested from time to time to more fully carry out the terms and provisions of this Order.
13. INSPECTION. All Items are subject to Buyer’s right to inspect and reject. Defective or damaged Items or Items not in accordance with Buyer’s specifications will be returned at Seller’s expense, including transportation, labor and handling costs. If inspection discloses that part of this Order received is not in accordance with Buyer’s specifications, Buyer may cancel any unshipped portion of this Order. Payment for Items on this Order prior to inspection shall not constitute acceptance thereof and shall be without prejudice to any claims of Buyer against Seller. Buyer may preinspect Items ordered hereunder at any time and place upon reasonable notice to Seller.
14. INSOLVENCY. Buyer may cancel this Order in the event Seller becomes bankrupt, insolvent or makes an assignment for the benefit of creditors.
15. PATENTS. Seller will protect, indemnify and hold Buyer harmless from all costs, expenses or damages, including without limitation reasonable attorneys’ fees, arising from the infringement or alleged infringement of patents, trademarks, trade names, service marks or other intellectual property by Items furnished pursuant to this Order or by the necessary mode of operation of Items so furnished.
16. WARRANTIES. Seller warrants for one year from initial use by Buyer (or, if later, by Buyer’s customers if the Items are intended for resale without modification) all Items furnished hereunder to be free from defects, including latent defects, in material, workmanship and design (unless designed by Buyer). All Items shall be merchantable, and shall conform to the intended use and shall be in exact accordance with this Order. This warranty shall not be waived by Buyer’s acceptance of Items or by payment for them. In addition, if any product or material furnished contains one or more manufacturer’s warranties, Seller hereby assigns such warranties to Buyer and shall use its best efforts to assist Buyer in receiving the benefits of such manufacturer’s warranties. Seller shall be liable to Buyer for all costs, expenses, losses or damages incurred or suffered by or imposed upon Buyer by reason of a breach of this warranty or any other provision of this Order. Such costs, expenses, losses or damages shall include incidental expenses, consequential damages and all direct or indirect losses or damages including attorneys’ fees, lost profits, rental of equipment, cost of replacement, cost of reshipping and otherwise. Seller further agrees to indemnify and hold Buyer, its customers and users harmless with respect to all such costs, expenses, losses, damages or claims arising from breach of this warranty or any other provision of this Order. These provisions shall be in addition to any rights or remedies provided by law or under this Order, including Buyer’s right to terminate this Order.
17. LIMITATION OF LIABILITY. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR LOSS OF PROFITS OR INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER UNDER THIS ORDER FOR ANY AMOUNT IN EXCESS OF THE PURCHASE PRICE OF THE ITEMS COVERED BY OR SUBJECT TO THIS ORDER, REGARDLESS OF LEGAL THEORY.
18. MODIFICATION. No agreement or other understanding in any way modifying the conditions of this Order will be binding upon Buyer unless made in writing and so approved by a duly authorized officer of Buyer.
19. NOTICE. All notices shall be in writing (delivered by mail, by hand, by telex, by telegram, or facsimile).
20. ARBITRATION. All disputes shall be submitted to arbitration by a panel of three (3) arbitrators under the rules of the American Arbitration Association in Houston, Texas. The award of the arbitrators shall be binding and shall be entered as a judgment by a court of competent jurisdiction.
21. MISCELLANEOUS. (a) Choice of Law. THIS ORDER SHALL BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF. (b) Assignment. This Order or any rights, obligations or duties hereunder may not be assigned by Seller without Buyer’s written consent and any attempted assignment without such consent shall be void. (c) Correction of Errors. Stenographic and clerical errors are subject to correction. (d) Use of Name. Seller shall make no use of Buyer’s name without Buyer’s prior written consent. (e) Proprietary Information. All special materials and information of Buyer are and shall be presumed to be proprietary and confidential and shall be held confidential by Seller if disclosed to Seller. Any materials, drawings or equipment of Buyer delivered to Seller in connection with this Order shall be returned immediately upon request of Buyer or termination of this Order. (f) No Liens. Seller will neither put nor suffer any lien to be put upon any Items covered by or subject to this Order. Waiver of any liens, attachments and encumbrances shall be a condition precedent to payment and all discount periods shall be tolled pending receipt of such evidence. (g) Headings. Headings are for reference purpose only and are not a part hereof. (h) Severability. In the event that any term or provision of this Order is declared invalid or unenforceable, the other provisions hereof shall remain in full force and affect.

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Last Updated: 09/23/2002