KODIAK TRAILER COMPONENTS

PURCHASE ORDER TERMS AND CONDITIONS

1.      All Kodiak purchase orders are subject to all terms and conditions set forth below and the entire contract, drawings and specifications, if any, pursuant to which this order is issued.                   NOTE:  Charges for freight or express, if payable by the purchaser must be accompanied by original receipted expense bills.

2.      If, upon/receipt of this order, there are any exceptions, seller must notify purchaser in writing within ten (10) days.  If no exceptions are received within ten (10) days, the older will be considered binding.  Please acknowledge required date on this purchase order.

3.      Purchaser will pay no charges for boxing, crating, or packing unless specified on the face of the purchase order.

4.      Goods are subject to purchaser’s inspection, notwithstanding prior payment to obtain cash discount.

5.      Purchaser reserves the right, without liability, to reject and refuse acceptance of any items which do not conform in all respects to:  (a) any instructions contained in this purchase order, (b) purchaser’s drawings and specifications; and/or (c) seller’s warranties, whether expressed or implied.  In the event of nonconformance of any items, purchaser may, at its election:  (1) upon notification to seller, hold such items for seller’s instructions at seller’s risk (2) return such items to seller at seller’s expense and risk, or (3) make reasonable corrections at seller’s expense.  Payment or prior inspection shall not be construed as acceptance of any goods or services.

6.      Purchaser will not pay claims for additional work or material unless prior approval is obtained in writing.

7.      By acceptance of this order, seller warrants that the manufacture and sale of the article or articles referred to herein and the prices therefore and shipment and delivery thereof, will conform to all applicable federal and state laws, rules and regulations, with reference to price control, fair labor standards, employment of aliens, minorities, minors, and all other matters.

8.      Discount, if any, is to be calculated from the date the invoice is received in proper form by purchaser.

9.      Seller represents and warrants that the articles herein described are: the best of their respective kinds; fit for use for the specified purpose for which they are purchased by the purchaser, free from all defects in design, workmanship and material; in full compliance with purchaser’s drawings and specifications, if any.  These warranties are in addition to, and shall not be construed as restricting or limiting, any warranties of the seller, expressed or implied, which are provided by contract or exist by operation of law.

10.   The responsibility for tests and inspection rests with the seller, but all articles covered hereby are subject to purchaser’s inspection and approval, and inspectors representing purchaser shall have free entry at all times while work on the contract of purchaser is being performed, to all parts of the seller’s work that concern the goods or services ordered.  The seller shall afford such inspectors, without charge, all reasonable facilities to satisfy them that the goods or services are being furnished in accordance with the specifications.  All inspections made by purchaser shall be so conducted as not to interfere unnecessarily with the operation of the works.  Nevertheless, purchaser shall have the right to make any and all tests and inspections that it desires at destination.  No approval or acceptance by any inspector shall in any way release the seller from its responsibilities or guarantees or warranties; and articles or material that show defects subsequent to acceptance at the seller’s works or after being put in use or operation will be rejected, and the seller shall replace the same with other articles or material which conform to the guarantees and warranties and to the requirements of the specifications, without any cost or expense to purchaser.

11.   Seller shall not sublet or assign any part of this order without written consent of purchaser, nor shall seller assign any moneys due or which become due hereunder without written consent of purchaser.

12.   Unless otherwise stated on the face of the purchase order, seller agrees that the price set forth on the purchase order is firm, not subject to any increase including subsequent changes in any applicable exchange rates, and includes all applicable taxes on such items.  If the price is omitted from the purchase order, the price to purchaser shall not be higher than the seller’s lowest prevailing price for services or goods or their components of like quality and quantity, then in effect on the date of the order.  Further, if a price reduction is effected after date of the purchase order, purchaser shall receive full benefit of any such reduction.

13.   This order is given and accepted on the expressed conditions and agreement that the seller recognizes and agrees that the proprietary information of purchaser now in existence, and to come into existence during the life of this Agreement, including, but not limited to, confidential drawings, proposals, technical data and information, vendor quotations, and/or other information revealed to seller, is of great value to purchaser, and that its unauthorized use or unauthorized disclosure would do irreparable and immeasurable harm to purchaser.  Seller covenants and agrees that, from the date hereof, at all times during the term of this Agreement, seller will not, for itself, or on behalf of any other person or persons, firm partnership, corporation, governmental unit or agency, company, or entity, engage in the design, manufacture, sale, promotion, installation, or maintenance, of products or services which are the same as or similar to those depicted in the confidential drawings, proposals, technical data and information, vendor quotations, and/or other information revealed to seller.  Further, seller agrees that, in the event of its breach or threatened breach of any protecting provision of this paragraph, purchaser shall be entitled to seek injunctive relief.  The right of purchaser to seek injunctive relief shall not be construed to limit purchaser from pursuing any other legal or equitable remedies available to it for such breach or threatened breach, nor to preclude it from seeking to recover damages from seller.

14.   (a) Seller shall indemnify purchaser and hold it harmless from any claim, demand, libel, cause of action, damage or expense for which purchaser might become liable or incur arising from or in connection with seller’s performance hereunder.  This indemnity shall expressly include (but not by way of limitation) any product liability claim from any person arising from the transportation , storage, resale, installation, assembly, or use of goods or services purchased hereunder, as well as all attorney’s fees and court costs.  (b) Seller agrees that in the performance of any work hereunder, it will protect and save harmless purchaser and its associated companies and the officers, agents, servants, and employees thereof from any claims, liens, expenses, taxes, penalties, loss or damage arising from any cause whatsoever in connection with such works;  and seller further agrees to carry and pay all worker’s compensation and employer’s liability insurance necessary or advisable under state and federal statutes and all other property insurance, and accepts exclusive liability for any payroll taxes or contributions imposed by federal or state law covering its agents or employees.

15.   Unless authorized in writing by the purchasing agent or an executive officer of purchaser, no change or modification of the above terms and conditions will be recognized.

16.   Purchaser may cancel this order without liability in the event the seller shall:

(a)    Breach any expressed or implied warranty;

(b)    Fail or refuse, in any respect, to perform any terms of this order;

(c)    Make an assignment for the benefit of its creditors, make a proposal of compromise with its creditors, or

(d)    Make a voluntary or involuntary bankruptcy declaration or place its assets in the custody of a receiver, liquidation or trustee in bankruptcy.

17.   Over shipments shall be at seller’s risk and may be returned for full credit, freight collect.

18.   Purchaser will not be required to accept any goods or services which do not conform to this order, custom or usage of trade notwithstanding.

19.   Seller and all others providing goods or performing services to be delivered hereunder shall, upon request, deliver to purchaser’s purchasing department an executed copy of a standard certificate of insurance.

20.   At any time seller fails or refuses to comply with all of the terms and conditions of this purchase order, in part or in whole, purchaser may, without process of law and without violating this purchase order, upon twenty-four (24) hours written notice sent to seller’s address set forth herein, take any steps purchaser deems advisable to secure sufficient labor, materials, supplies, equipment, services, etc. by contract or otherwise, and may take over without any liability to seller all seller’s equipment , tools, materials, supplies, credits, etc., and may prosecute the work, in part or in whole, to completion.  In the event purchaser exercises any of the provisions of this paragraph, all moneys expended therefore, including labor, materials, tools, supplies, services, equipment, freight, subcontracts, fees, taxes, bond costs, insurance, legal expenses and fees, liquidated damages, etc., and fifteen percent (15%) for purchaser’s overhead and profit shall be deducted from the purchase order sum, and, if such amounts exceed the amount otherwise due seller hereunder, seller agrees to pay the excess amount with interest thereon at the rate of ten percent (10%) per annum upon demand.  In no event will seller be entitled to receive further payment if any should accrue, until the work is fully completed, accepted, paid for, and all claims settled.  Purchaser, by taking any action indicated above, does not forfeit its right to recover damages from seller or seller’s surety for failure to complete, or for delay in such completion.

21.   Invalidity of any provision of this order shall not affect the validity or any other provision.

22.   Time is of the essence to this purchase order.  If delivery of the items, free of defects and non conformity, is not completed within the time which may be specified herein, purchaser, without liability, and in addition to any other rights and remedies it may have, and without waiving those other rights and remedies, reserves the right to:  (a) terminate this order by notice effective when received by seller as to the stated items not yet shipped or not conforming or defective, (b) purchase substitute goods elsewhere:  and/or  (c) make reasonable corrections to such nonconforming items.  In the event purchaser purchases goods or services elsewhere or makes reasonable corrections to nonconforming items, seller shall reimburse purchaser within fifteen (15) days of notice to seller for such amount or amounts hereby due for all additional costs and expenses (including price differential) which purchaser may have incurred.  If time is not specified, seller shall have a reasonable time to deliver said ordered goods.

23.   This order shall be construed according to the substantive and statutory laws of the State of Texas.

24.   This order constitutes the entire agreement between seller and purchaser with respect to goods and services to be furnished hereunder and shall supersede all previous negotiations and commitments unless specifically included by reference herein.                                                                                                                                                                                                        Rev 6/2012