1. PACKAGING:

Seller is responsible for packaging materials in a manner to insure receipt in good condition.

2. WARRANTIES:

Seller expressly warrants that all goods and/or work, ordered hereunder will be merchantable and fit and sufficient for the purpose ordered, and that all goods and/or work ordered according to plans, drawings, specifications, descriptions, or samples furnished or approved by ZEON, which are hereby made a part hereof as if fully set out herein, will conform thereto, and that all goods and/or work ordered hereunder will be free from defect in material and workmanship and will comply with all requirements of the Occupational Safety and Health Act of 1970 as it may be amended from time to time including all regulations issued there-under and shall comply with all requirements of all applicable health and/or safety statutes of federal, state, or local governments having jurisdiction in the location to which such goods are shipped or in which such work is performed. Seller further warrants the delivery to ZEON of good and marketable title to all goods sold hereunder, free and clear of all liens, security interests and encumbrances of any nature whatsoever. All warranties shall run to ZEON, its successors, assigns, and customers and to the users of its products, and shall be construed as conditions as well as warranties, and shall not be deemed to be exclusive.

3. FORCE MAJEURE:

Except with respect to a failure to perform on the part of a permitted subcontractor of Seller, Seller shall not be liable for any delay in or failure of performance if the failure to perform arises out of causes beyond the control and without the fault or negligence of Seller. Such causes may include, but are not restricted to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; but in every case the failure to perform must be beyond the control and without the fault or negligence of Seller. If the failure by Seller to perform is caused by a failure to perform on the part of a permitted subcontractor of Seller, and if such failure arises out of causes beyond the control of both the Seller and that subcontractor, and without the fault or negligence of either of them, Seller shall not be liable for any delay or failure to perform, unless the supplies or services to be furnished by that subcontractor were obtainable from other sources in sufficient time to permit Seller to meet the required delivery schedule

4. INFRINGEMENT:

Seller agrees to indemnify and hold harmless the ZEON and ZEON’s customers from all losses, damages, liabilities, claims, demands, suits, judgments, costs and expenses (collectively, “Damages and Claims”) that may at any time result from or arise out of any patent, trademark or copyright infringement claim or suit against ZEON or ZEON’s customers based on the purchase, use or resale by ZEON or ZEON’s customers, as the case may be, of the particular goods, equipment or work called for in this order, and Seller shall defend any such infringement claim or suit at no expense to ZEON or ZEON’s customers, provided only that Seller is notified promptly of each such claim or suit.

5. PERFORMANCE OF WORK:

If this order calls for work to be performed by Seller, all work performed and all materials used in connection therewith shall be at the risk and expense of and shall be replaced by Seller in the event of any damage or destruction thereof prior to delivery to and acceptance by ZEON. If this order calls for work to be performed by Seller upon any premises owned or controlled by ZEON and/or ZEON’s customers, Seller will keep the premises and the work free and clear of all mechanics’ liens and will furnish ZEON with a certificate and waiver thereof as provided by law. Whenever any property belonging to ZEON or its customers is in the possession of Seller or Seller’s suppliers, Seller shall be deemed an insurer thereof and shall be responsible for its safe return to ZEON. Seller will indemnify, hold harmless and defend ZEON and/or ZEON’s customers from any and all Damages and Claims incurred, made or brought under the Workmen’s Compensation Law of the state in which any work is performed hereunder or under any applicable federal compensation laws, and will, if requested, furnish to ZEON a Certificate showing that Seller is complying with the Workmen’s Compensation Law of such state and with any applicable federal compensation laws. Seller will also indemnify, save harmless and defend ZEON and/or ZEON’s customers from all Damages and Claims incurred by reason of any damage to property or injury to or death of persons caused by Seller in the performance of this order.

6. TERMINATION:

A) Default – If Seller defaults in performance of this order; or fails to make progress so as to endanger performance, or becomes insolvent, or makes an assignment for its creditors, or is the subject of bankruptcy proceedings, ZEON may, by written notice, terminate this order for default. Thereafter, Seller shall be responsible for ZEON’s costs in securing other performance of the terminated work and such other damages as may arise by reason of Seller’s default. In addition, ZEON may direct Seller to transfer title and deliver to ZEON any completed supplies, any inventory of partially completed supplies and materials and any tooling which Seller has acquired or produced specifically for this order. Payment for completed work shall be at the contract price, and payment for other materials shall be in an amount agreed to by the parties. In the event that a Seller terminated for default is subsequently found to not have been in default, the termination shall be converted to a convenience termination, and Seller shall have no claim for lost profits, consequential or special damages or any other costs or damages beyond the termination claim allowed under the Termination for Convenience provision. B) Convenience – ZEON, by written notice, may terminate this order in whole or in part at any time whenever it shall determine that such termination is in its best interests. Upon receipt of such notice, Seller shall stop work to the extent that the order has been terminated. Within six (6) months of receipt of a notice of termination under this subparagraph, Seller shall submit its claim, if any, for the costs of performing the work to the date of termination and for the costs of terminating the work. ZEON shall pay for production acceptably completed prior to the termination date at the contract price. ZEON and Seller shall agree on any other amounts to be paid Seller for work performed and costs occasioned by the termination. Nothing in this clause shall obligate ZEON to pay more than the total order price, as reduced by payments made prior to the termination.

7. COMPLIANCE WITH LAWS AND REGULATIONS:

The parties hereby incorporate the requirements of 41 CFR 60- 1.4(a)(7), 29 CFR Part 471, Appendix A to Subpart A, 41 CFR 60-300.5(a)(ii) and 41 CFR 60-741.5(a).

 

This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a). This regulation prohibits discrimination against qualified protected veterans, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans.

This contractor and subcontractor shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment individuals with disabilities.

8. INDEMNIFICATION:

Seller agrees to protect, defend, hold harmless and indemnify ZEON from and against any and all Damages and Claims arising out of any actual or alleged death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to have resulted in whole or in part from any actual or alleged defect in any goods purchased hereunder, whether latent or patent, including actual or alleged improper construction or design of said goods or the failure of said goods to comply with specifications or with any express or implied warranties of Seller, or arising out of any actual or alleged violation by such goods, or its manufacture, possession, use or sale, or any law statute or ordinance or any governmental administrative order, rule or regulation. This agreement by Seller shall not be affected or limited in any way by ZEON’s extension of express or implied warranties to its customers, except to the extent that any such ZEON warranties expressly extend beyond the scope of Seller’s warranties, express or implied, to ZEON. Seller agrees to obtain and maintain, at its expense, a policy or policies of products and contractual liability insurance having coverages and coverage limits that are reasonably acceptable to ZEON, and naming ZEON as an additional insured or loss payee as its interests may appear.

9. GENERAL:

A) Neither this order, nor any moneys due or to become due hereunder, nor any obligation of Seller hereunder, may be assigned, delegated or subcontracted by Seller without the written consent of ZEON. B) Failure by ZEON at any time and from time to time to enforce any term or condition of this order shall not be deemed to be a waiver thereof on the same or on subsequent occasions nor a waiver of any other term or condition hereof. C) Any provision hereof prohibited by law shall be deemed to be void without affecting the rest of this contract. D) The receipt by ZEON from Seller of any quotation form, sales confirmation or acknowledgment, or any other proposal, terms or conditions shall not, in the absence of a written acknowledgment by ZEON expressly agreeing that the same is a part of the parties’ contract, have the effect of changing in any manner or adding to the terms and conditions of this order. E) Any offer made by this order hereby expressly limits acceptance by the Seller to the terms and conditions hereof. Notice of ZEON’s objection to different or additional terms or conditions is hereby given. ZEON’s acceptance of any terms or conditions set forth in any confirmation or other form of Seller provided to ZEON must be in writing, and is expressly conditioned on Seller’s assent to and acceptance of any additional or different terms or conditions set forth in this order (including these Terms and Conditions). This order, when accepted by Seller, is a complete and exclusive statement of the terms of the parties’ contract. F) Time is of the essence in Seller’s delivery of conforming goods and services as required by this contract, and in the performance and discharge of Seller’s other obligations hereunder. G) ZEON shall have the right to set off any amounts that may at any time be owing by Seller to ZEON against any indebtedness of ZEON pursuant to this contract. H) This contract may not be amended or supplemented unless in writing and signed by the parties hereto. I) This order, when accepted by Seller, constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof. J) This contract shall be governed by and construed and enforced in accordance with the laws of the Commonwealth of Kentucky, without regard to the conflicts of laws rules or principles thereof. K) These Terms and Conditions form an integral part of the parties’ contract and are incorporated therein by this reference.

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