TERMS

Acceptance of Purchase Order:

Agreement by Vendor to furnish the materials or services hereby ordered, Vendor’s commencement of such performance, or Vendor’s acceptance of any payment, whichever occurs first, shall constitute acceptance by Vendor of this Purchase Order subject to these terms and conditions. In the event that this Purchase Order does not state price or delivery, Buyer will not be bound to any prices or delivery to which it has not specifically agreed in writing. These terms and conditions, together with any referenced exhibits, attachments or other documents, constitute the entire agreement between the parties with respect to the subject matter of this Purchase Order and supersede any prior or contemporaneous written or oral agreements pertaining thereto. No modifications permitted unless in writing signed by both parties.

Shipping Instructions:

Vendor shall be responsible for ensuring the proper packaging of materials hereunder. No charges will be allowed for packing, crating, freight, local cartage, and/or any other services unless so specified in this Purchase Order. Vendor shall at all times comply with Buyer’s written shipping instructions. Unless otherwise directed, all items shipped on the same day from and to a single location must be consolidated on one bill of lading or airbill, as appropriate. Vendor shall submit all required shipping papers to Buyer prior to final payment. For material purchased F.O.B. origin, the Vendor shall not insure and not declare a value except when transportation rates are based on "released value," in which instance the Vendor shall annotate on the bill of lading the lowest released value provided in applicable tariffs. Purchase Order number(s) must appear on all correspondence, shipping labels, and shipping documents, including all packing sheets, bills of lading, airbills, and invoices.

Delivery; Notice of Delay:

Time is of the essence and failure to deliver in accordance with the delivery schedule under this Purchase Order, or any part thereof, shall be considered a material breach of this Purchase Order and Buyer may, without prejudice to Buyer’s other rights under this Purchase Order, either (a) refuse to accept such late or non-conforming delivery and rescind this Purchase Order, (b) accept delivery of such late or non-conforming delivery and charge Vendor for all costs of every character whatsoever that Buyer has incurred and/or will incur as a result of or in any way connected with Vendors failure to meet the agreed upon delivery schedule, or (c) refuse or return at Vendor’s risk and expense shipments made in excess of Buyer’s orders or in advance of required schedules, or to defer payment on advance deliveries until scheduled delivery dates. It is difficult or impossible at the time of acceptance of this Purchase Order for the parties to ascertain the extent of Buyer’s costs and damages as a result of Vendor’s late or non-conforming delivery. As a reasonable estimation of the harm anticipated, the parties agree that upon Vendor’s late or non-conforming delivery Buyer shall be entitled to liquidated damages, and not a penalty or forfeiture, in an amount equal to One Tenth of One Percent (0.10%) of the value of the late or non-conforming delivery, or any part thereof, for each day Vendor fails to deliver in accordance with the delivery schedule under this Purchase Order. In no event shall this liquidated damages amount exceed ten percent (10%) of the value of the late or non-conforming delivery, or any part thereof, and shall be capped at ten percent (10%). Vendor shall notify Buyer in writing immediately of any actual or potential delay to the performance of this Purchase Order. Such notice shall include a proposed revised schedule but such notice and proposal or Buyer’s receipt or acceptance thereof shall not constitute a waiver to Buyer’s rights and remedies hereunder. Acceptance of late or non-conforming deliveries shall not be deemed a waiver of any of Buyer’s rights under this Purchase Order, nor shall it act as a modification of Vendor’s obligation to make future deliveries in accordance with the delivery schedule.

Termination for Convenience:

Buyer may, by notice in writing, terminate this Purchase Order or work under this Purchase Order for convenience and without cause, in whole or in part, at any time, and such termination shall not constitute default. In the event of partial termination, Vendor is not excused from performance of the non-terminated balance of work under this Purchase Order. In the event of termination for convenience by Buyer, Vendor shall be reimbursed for actual, reasonable, substantiated and allowable costs, plus a reasonable profit for work performed to date of termination. Buyer may take immediate possession of all work so performed upon written notice of termination to Vendor. Vendor’s obligations, including, without limitation, obligations under the warranty, proprietary rights, infringement, and indemnity against claims provisions of this Purchase Order, shall survive such termination.

Termination for Default:

In addition to any other remedies available to Buyer under applicable law, Buyer may, by notice in writing, terminate this Purchase Order in whole or in part at any time for breach of any one or more of its terms, for failure to make progress so as to endanger performance of this Purchase Order, or failure to provide adequate assurance of future performance. In the event of partial termination, Vendor is not excused from performance of the non-terminated balance of work under this Purchase Order. Vendor’s obligations, including but not limited to obligations under the warranty, proprietary rights, infringement, and indemnity against claims provisions of this Purchase Order, shall survive such termination

Force Majeure:

Except for defaults of Vendor’s subcontractors at any tier, neither Buyer nor Vendor shall be liable for any failure to perform due to any cause beyond their reasonable control and without their fault or negligence. Such causes include, but are not limited to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, terrorism, quarantine restrictions, strikes, freight embargoes, and unusually severe weather. In the event that performance of this Purchase Order is hindered, delayed or adversely affected by causes of the type described above ("Force Majeure"), then the party whose performance is so affected shall so notify the other party’s authorized representative in writing and, at Buyer’s option, this Purchase Order shall be completed with such adjustments as are reasonably required by the existence of Force Majeure or this Purchase Order may be terminated for convenience.

Proprietary Rights:

Unless otherwise expressly agreed in writing to the contrary, all specifications, information, data, drawings, software and other items supplied to Buyer by Vendor shall be disclosed to Buyer on a non-proprietary basis and may be used and/or disclosed by Buyer without restriction, unless: (i) otherwise required by the U.S. Government Regulations referred to below; or (ii) the Buyer has executed a separate agreement restricting the use and disclosure of such information, data, software and the like. Unless otherwise expressly agreed in writing to the contrary and subject to Section 7 (d) below, all specifications, information, data, drawings, software and other items which are: (i) supplied to Vendor by Buyer; or (ii) obtained or developed by Vendor in the performance of this Purchase Order or paid for by Buyer shall be proprietary to Buyer, shall be used only for purposes of providing goods or services to Buyer pursuant to this Purchase Order, and shall not be disclosed to any third party without Buyer’s express written consent. All such items supplied by Buyer or obtained by Vendor in performance of this Purchase Order or paid for by Buyer shall be promptly delivered to Buyer on the written request of Buyer or upon completion of this Purchase Order. Unless otherwise expressly agreed in writing to the contrary and subject to this section, any invention or intellectual property first made or conceived by Vendor in the performance of this Purchase Order or which is derived from or based on the use of information supplied by Buyer shall be considered to be the property of Buyer, and Vendor shall execute such documents necessary to perfect Buyer’s title thereto. Unless otherwise expressly agreed in writing to the contrary and subject to this section, Buyer alone shall be entitled to all benefits, profits and results arising from or incidental to any work performed ("Work Product") pursuant to this Purchase Order. Because the parties hereto intend for all Work Product to be owned exclusively and perpetually by Buyer, Vendor hereby unconditionally and irrevocably transfers and assigns to Buyer, as the sole and exclusive property of Buyer (and of Buyer’s assigns, nominees, and successors), any and all intellectual property or other rights, title and interest Vendor may currently have (or in the future may have) by operation of law or otherwise in or to any and all Work Product. Vendor agrees to execute and deliver to Buyer any transfers, assignments, documents or other instruments necessary (collectively, "necessary instruments") to apply for, prosecute, obtain or enforce any patent, copyright or other right or protection, whether in the United States or in any foreign nation, or to otherwise vest complete and perpetual title and ownership of any Work Product and all associated rights exclusively in Buyer. Applicable Government Procurement Regulations incorporated into this Purchase Order shall, when applicable, take precedence over any conflicting provision of this section to the extent that such Regulations so require. The incorporation by reference of such U.S. Government Regulations dealing with subcontractors rights in technical data, subject inventions, copyrights, software and similar intellectual property are not intended to, and shall not, unless otherwise required by applicable law, obviate or modify any greater rights which Vendor may have previously granted to Buyer pursuant to prior agreements between the parties.

Buyer's Property:

All drawings, tools, jigs, dies, fixtures, materials, and other items supplied or paid for by Buyer shall be and remain the property of Buyer; and Buyer shall have the right to enter Vendor’s premises and remove any such property at any time without being liable for trespass or damages of any sort. All such items shall be used only in the performance of work under this Purchase Order unless Buyer consents otherwise in writing. Material made in accordance with Buyer’s specifications and drawings shall not be furnished or quoted by Vendor to any other person or concern without Buyer’s prior written consent. Vendor shall have the obligation to maintain any and all property furnished by Buyer to Vendor and shall be responsible for all loss or damage to said property except for normal wear and tear.

Release of Information:

Vendor shall not publish, distribute, nor use any information developed under or about the existence of this Purchase Order, nor use the Buyer’s name, logo, trademark, service mark, or trade dress, or that of an any product or product line, division, affiliate or subsidiary thereof, for any purpose, including, without limitation, advertising, news release, business reference, website content, or products or service endorsement without prior written approval of Buyer.

Warranties

Vendor warrants that all equipment and materials delivered under this Purchase Order are in conformance with the latest OSHA requirements The Vendor warrants that in the performance of this Purchase Order, it will comply with all applicable U.S. Department of Transportation regulations on hazardous materials and any other applicable international, federal, state, or local statutes, laws, rules, or regulations. Vendor warrants that it has complied with the Anti-Kickback Act of 1986 and has not offered or given and will not offer or give to any employee, agent, or representative of Buyer any gratuity or any kickback within the meaning of the Anti-Kickback Act of 1986. Any breach of this warranty shall be a material breach of each and every contract between Buyer and Vendor. Vendor shall indemnify and save Buyer harmless from and against any loss, damage, fine, penalty, or expense whatsoever that Buyer may suffer (collectively "damages") as a result of (i) Vendor’s failure to comply with any and all obligations and warranties set forth in this section; or (ii) any indemnification obligation of Buyer owed to its distributors or customers to the extent only such damages are caused by Vendor’s failure to comply with any and all obligations and warranties set forth in this section. The foregoing is in addition to and not in mitigation of any other requirements of this Purchase Order.

Responsibility and Insurance:

Vendor shall be responsible for the actions and failure to act of all parties retained by, through, or under Vendor in connection with the performance of this Purchase Order. Vendor shall also maintain and cause its subcontractors to maintain such General Liability, Property Damage, Employer’s Liability, and Workers’ Compensation Insurance, Professional Errors and Omissions Insurance, and Motor Vehicle Liability (Personal Injury and Property Damage) Insurance as are specified in this Purchase Order or, if none are specified, such amount as will protect Vendor (and its subcontractors) and Buyer from said risks and from any claims under any applicable Workers’ Compensation, Occupational Disease, and Occupational Safety and Health statutes. Vendor shall provide Buyer with certificates evidencing required insurance upon Buyer’s request.

Indemnity Against Claims:

Vendor shall keep its work and all items supplied by it hereunder and Buyer premises free and clear of all liens and encumbrances, including mechanic’s liens, in any way arising from performance of this Purchase Order by Vendor or by any of its vendors or subcontractors. Vendor may be required by Buyer to provide a satisfactory release of liens as a condition of final payment. Vendor shall, without limitation, indemnify and save Buyer and its customer(s) and their respective officers, directors, employees and agents harmless from and against: (i) all claims (including claims under Workers’ Compensation or Occupational Disease laws) and resulting costs, expenses and liability which arise from personal injury, death, or property loss or damage attributed to, or caused by, the goods, services or other items supplied by Vendor pursuant to this Purchase Order except to the extent that such injury, death, loss or damage is caused solely and directly by the negligence of Buyer; and (ii) all claims (including resulting costs, expenses and liability) by the employees of Vendor or any of its subcontractors.

International Transactions:

Payment will be in United States dollars unless otherwise agreed to by specific reference in this Purchase Order. Vendor agrees that the Buyer, its subsidiaries, affiliates or its designees may exclusively use the value of this Purchase Order to satisfy any international offset obligations with Vendor’s country, subject to the offset qualifying laws, rules and regulations of that country.

Export/Import Controls:

If Vendor is a U.S. company that engages in the business of either manufacturing or exporting defense articles or furnishing defense services, the Vendor hereby certifies that it has registered with the U.S. Department of State Directorate of Defense Trade Controls and understands its obligations to comply with International Traffic in Arms Regulations ("ITAR") and the Export Administration Regulations ("EAR"). Vendor shall control the disclosure of and access to technical data, information and other items received under this Purchase Order in accordance with U.S. export-control laws and regulations, including but not limited to the ITAR. Vendor agrees that no technical data, information or other items provided by the Buyer in connection with this Purchase Order shall be provided to any foreign persons or to a foreign entity, including, without limitation, a foreign subsidiary of Vendor, without the express written authorization of the Buyer and the Vendor’s obtaining of the appropriate export license, technical assistance agreement or other requisite documentation for ITAR-controlled technical data or items. Vendor shall indemnify Buyer for all liabilities, penalties, losses, damages, costs or expenses that may be imposed on or incurred by Buyer in connection with any violations of such laws and regulations by Vendor. Vendor shall immediately notify Buyer if it is or becomes listed on any Excluded or Denied Party List of an agency of the U.S. Government or its export privileges are denied, suspended or revoked.

Severability:

If any provision of this Purchase Order or application thereof is found invalid, void, or unenforceable to any extent by a court of competent jurisdiction, the remainder of the provisions of this Purchase Order will remain valid, enforceable and in full force and effect, and the parties will negotiate in good faith to substitute a provision of like economic intent and effect.

Standards of Business Ethics and Conduct:

By the acceptance of this Purchase Order, Vendor represents that it has neither received or given any gifts or gratuities, nor participated in any other conduct in connection with this Purchase Order that violates the Standards of Business Ethics and Conduct of Ernie Ball, Inc., (available at WWW.ERNIEBALL.COM). If, at any time, Buyer determines that Vendor is in violation of such Standards, Buyer may cancel this Purchase Order upon written notice to Vendor and Buyer shall have no further obligation to Vendor.

Order of Precedence:

In the event of any inconsistency or conflict between or among the provisions of this Purchase Order, such inconsistency or conflict shall, subject to Section 7 above, be resolved by the following descending order of preference: order-specific provisions which are typed or handwritten on this Purchase Order by Buyer as additions to the preprinted terms; documents incorporated by reference by Buyer on the face page(s) of this Purchase Order; these Standard Terms and Conditions and supplements from Buyer thereto; statement of work; and specifications attached hereto or incorporated by reference.

Warranty:

Vendor warrants the materials delivered pursuant to this Purchase Order shall be new, free from defects in workmanship, materials, and design and to be in accordance with all the requirements of this Purchase Order. Vendor further warrants that the performance of work and services pursuant to the requirements of this Purchase Order shall conform to high professional standards. These warranties shall survive final acceptance and payment. This warranty entitlement shall inure to the benefit of both Buyer and Buyer’s customers. As used in this Purchase Order, Buyer’s customer(s) shall include its direct and indirect customers such as direct sale end-users, distributors and retailers purchasing Buyer’s products for sale to end-users. Vendor shall indemnify and save Buyer harmless from and against any loss, damage, or expense whatsoever that Buyer may suffer from breach of any of these warranties. Remedies shall be at Buyer’s election, including repair, replacement or reimbursement of this Purchase price of nonconforming materials and, in the case of services either correction of the defective services at no cost or reimbursement of the amounts paid for such services.

Inspection:

All material and workmanship shall be subject to inspection and test at all reasonable times and places by Buyer or Buyer’s customer before, during and after performance and delivery. Buyer may require Vendor to repair, replace or reimburse this Purchase price of rejected material or Buyer may accept any materials and upon discovery of nonconformance, may reject or keep and rework any such materials not so conforming. Cost of repair, rework, replacement, inspection, transportation, repackaging, and/or reinspection by Buyer shall be at Vendor’s expense. If inspection and test are made on the premises of Vendor or Vendor’s lower tier subcontractors, Vendor shall furnish without additional charge all reasonable facilities, information and assistance necessary for the safe and convenient inspection and tests required by the inspectors in the performance of their duty. The foregoing provisions are supplementary to and not in lieu of the other provisions of this Purchase Order. Buyer’s failure to inspect does not relieve Vendor of any responsibility to perform according to the terms of this Purchase Order.

Changes:

Buyer shall have the right by written order to suspend work or to make changes from time to time in the services to be rendered or the materials to be furnished by Vendor hereunder or the delivery date. If such suspension or changes cause an increase or decrease in the cost of performance of this Purchase Order or in the time required for its performance, Vendor shall promptly negotiate in good faith with Buyer an equitable adjustment and this Purchase Order shall be modified in writing accordingly. Any claim by Vendor for adjustment under this section must be asserted in writing within twenty (20) days from the date of receipt by Vendor of notification of the change or suspension and shall be followed as soon as practicable with specification of the amount claimed and supporting cost figures. However, nothing herein shall excuse the Vendor from proceeding with this Purchase Order as changed pending resolution of the claim. Information, advice, approvals or instructions given by Buyer’s technical personnel or other representatives shall be deemed expressions of personal opinion only and shall not affect Buyer’s and Vendor’s rights and obligations hereunder unless set forth in a writing which is signed by Buyer’s purchasing representative and which states it constitutes an amendment or change to this Purchase Order.

Infringement:

Vendor warrants that all work, materials, services, equipment, parts and other items provided by Vendor pursuant to this Purchase Order, which are not of Buyer’s design, shall be free from claims of infringement (including misappropriation) of third party intellectual property rights and that any use or sale of such items by Buyer or any of Buyer’s customers shall be free from any claims of infringement. Vendor shall indemnify and save Buyer, and its customers harmless from any and all expenses, liability, and loss of any kind (including all costs and expenses including attorneys’ fees) arising out of claims, suits, or actions alleging such infringement, which claims, suits, or actions Vendor, hereby, agrees to defend, at Vendor’s expense, if requested to do so by Buyer. Vendor may replace or modify infringing items with comparable goods acceptable to Buyer of substantially the same form, fit, and function so as to remove the source of infringement, and Vendor’s obligations under this Purchase Order shall apply to the replacement and modified items. If the use or sale of any of the above items is enjoined as a result of such claim, suit or action, Vendor, at no expense to Buyer, shall obtain for Buyer and its customers the right to use and sell said item.

Taxes:

Unless this Purchase Order specifies otherwise, the price of this Purchase Order includes, and Vendor is liable for and shall pay, all taxes, imposts, charges and exactions imposed on or measured by this Purchase Order except for applicable sales and use taxes that are separately stated on Vendor’s invoice. Prices shall not include any taxes, imposts, charges or exactions for which Buyer has furnished a valid exemption certificate or other evidence of exemption. To the extent that Buyer is required to do so under applicable United States law or tax regulations, Buyer may deduct from any payments due to Vendor pursuant to this Purchase Order such taxes as Buyer is required to withhold from such payments and pay such taxes to the relevant tax authorities; provided, however, that Buyer provides Vendor with relevant tax receipts or other suitable documentation evidencing the payment of such taxes promptly after such taxes are paid.

Assignments:

Vendor may not assign any rights or delegate any of its obligations due or to become due under this Purchase Order without the prior written consent of Buyer. Any purported assignment or delegation by Vendor without such consent shall be void. Buyer may assign this Purchase Order to: (i) any affiliated company; (ii) any successor in interest; or (iii) Buyer’s customer. Buyer shall have the right at any time to set off any amount owing from Vendor to Buyer or Buyer’s subsidiaries and/or affiliates against any amount due and owing to Vendor or any of its subsidiaries and/or affiliates pursuant to this Purchase Order or any other contractual agreement between Buyer and Vendor or their respective subsidiaries and/or affiliates. Vendor shall promptly notify the Buyer in writing in advance of any organizational changes planned by Vendor, including name or ownership changes, mergers or acquisitions.

Compliance with Law:

Vendor warrants that the materials to be furnished and the services to be rendered under this Purchase Order shall be manufactured, sold, used and rendered in compliance with all applicable international, federal, state, local law, orders, rules, ordinances, and regulations and in compliance with applicable prohibitions, whether domestic or international, on child, forced and illegal labor. Vendor certifies that with respect to the production of the articles and/or the performance of the services covered by this Purchase Order, it has fully complied with Sections 6, 7, 12, and 15 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the United States Department of Labor under Section 14 thereof, if applicable.

Governing Law:

This Purchase Order shall be governed and construed according to the internal laws of the State of California, including, without limitation, the Uniform Commercial Code as adopted in California, without regard to conflict of laws principles. Any cause of action, claim, suit or demand by Vendor allegedly arising from or related to this Purchase Order or the relationship of the parties shall be brought exclusively in a court situated in the State of California, County of Riverside. Both parties hereby irrevocably submit to the exclusive jurisdiction of said court and consent to venue therein.