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Ljmxfve 0119112014
<br />AMARILLO GEAR COMPANY LLC
<br />TERMS AND CONDITIONS OF PURCHASE
<br />ACCEPTANCE; AGREEMENT. The purchase order, including these Terms and
<br />Conditions of Purchase (these "Terns") is an offer by Amarillo Gear Company LLC
<br />("Bayer') to purchase the goods ("Goods") and/or services ("Services") described in the
<br />purchase order from the person or entity to whom the purchase order is addressed
<br />('Seller") These Terns are the only terns and conditions which govem the prrchase of
<br />Goods and Services by Buyer aid supersede all other terns and conditions, oral or
<br />written, and all other communications between the parties suggesting additional or
<br />different [emus. These Terns represent the final and complete understanding of the
<br />parties and may be amended or cancelled only by written agreement signed by both
<br />parties. These Terns expressly limit acceptance to these provisions. Any proposal for
<br />additional or different terns or any attempt by Seller to very in any degree any of the
<br />provisions of these Terns is hereby deemed material and objected to and rejected. No
<br />terns of any domrrent or form submitted by Seller shall be effective to alter or add to the
<br />provisions contained in these Terns. Unless otherwise stated herein, Seller's
<br />acknowledgment of Buyer's order, shipment of Goods or commencement of any work or
<br />performance ofany Services shall constitute acceptance by Seller ofthese Terms.
<br />DELIVERY. Time is ofthe essence with respect to the delivery of Goods and the performance
<br />of Services. Hilhe delivery ofthe Goads and/or the performance ofthe Services is not commenced
<br />by tine specified stating dare or completed within the specified time, Buyer may, in addition to any
<br />other rights or remedies it may lime, terminate the order, without liability, for may Goods not yet
<br />shipped or Services not yet provided and purchase substitute goods a services and charge Seller
<br />for ary extra costs. 14 in order to comply with delivary date specified on the front hereof; Seller
<br />most ship by amore expensive way that specified hereto, Seller shall pay any increased costs.
<br />RISK OF LOSS. Seller shall inane and pay for my loss or damage to the Goods ordered by
<br />Buyer from any case whascever rand the Goods are delivered to Buyer at the Seller's designated
<br />delivery location.
<br />WARRANTIES. Seller warrants that the Goads or Services purchased hereunder will be (a) in
<br />lid] conformity with the specifications, drawings, desaiptiom and/or samples famished or
<br />specified by Buyer, fu fro from defects in material, worlanarship and design, (e) of good
<br />merchantable quality and fit and sufficient for the purposes intereled. (d) free and clear of all
<br />liens, Claims, security interests or other encumbrances, (a) five of claims ofinfringement
<br />or misappropriation of any third party+s intellectual property rights; and H) produced or
<br />provided in compliance with and meet all requirements and standards of all applicable
<br />federal, state, and local laws and regulations. All warranties shall survive any inspection,
<br />testing, delivery, acceptance or payment or failure to inspect, test or discover any defect
<br />or other nonconformance shall relieve Seller of any ofits obligations wider these Terns
<br />or impair any rights or remedies of Buyer. NO ATTEMPT BY SELLER TO DISCLAIM,
<br />EXCLUDE, LIMIT, OR MODIFY ANY WARRANTIES OR SELLERS LIABILITY FOR
<br />DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES SHALL BE OF ANY FORCE
<br />OR EFFECT.
<br />INSPECTION. All Cords are subject to inspection by authorized represemadve(s) of Buyer
<br />and/or Buyer's cumorrars a all reasonable times and places, including dining production. No
<br />Goods shall be considered accepted prior to inspection by Buyer a Buyers place of business
<br />Buyer reserves the tight to reject or to revoke acceptance of Goods which fail to meet any
<br />requirement of Buyer's order, notwithstanding mypayment or anypriorinspection orme.
<br />INDEMNIFICATION. Seller, shall indemnify, hold harmless and defend Buyer, its affiliates
<br />and their respective successors and ¢signs, against all lawsuits, damages, losses, costs, expenses,
<br />claims, liabilities, judgments, settlements, fines, settlements or penahaes, including all atomey's
<br />fees and litigation cases, whetha dues, indirect, incidental, consequential, or otherwise
<br />(collectively. "Clams") for (i) personal injury, Property damage, or other damage, arising out of;
<br />relating to, or in com redon with, the Goods or Services; (it) Sellers must or alleged negligence,
<br />act or omssion or failure to comply with all these Terns or shy other agreement between Buyer
<br />and Seller (oil any Recall; (iv) achual or alleged infringement or misappropriation of my
<br />intellectual al property or proprietary right and (v) Seller's breach of these Terns in any of the
<br />warranties expressed herein or my warranties implied by law, Seller shall not max into any
<br />settement withant Buyers prior written consent. This indenulficatim is in addition to the
<br />warrantyobligations ofSeder.
<br />INTELLECTUAL PROPERTY. Seller warrants that the mmufacnre, sale and ace of the
<br />Goods will net infringe my paint, copyright, ordered, trade secret or other proprietary right.
<br />Seller shall indemnify Buyer in accordance with Semon 6. Hit o any portico ofthe Goods are
<br />held to corstih¢e an infringement ofa parent andor their use is enjoined for my reeve, Seller
<br />shall promptly, and a its own expose, either proaae for Buyer the ugh¢ to continue using such
<br />Goods royalty -fire a replace such Goods to Buyers satisfaction with nor -infringing goods of
<br />equal quality and penfmnance.
<br />INSURANCE.
<br />Sella shall obtain and a all times during which this Agreement is in effect maintain m is cost
<br />the following insurance with insurers having a current AM. Best rating of "A- VIII" a better.
<br />(1) primary comprehensive or coramercial general liability insurance with limits ofa least $I
<br />million per ocamence and $2 million soma aggregate combined single limit for bodily injury
<br />and property damage, including coverage for (i) Produc s and Completed Operators liability;
<br />(it) Blanket Contractual liability; and (fit) Cross Liability endorsement oSevveability ofloterest
<br />clause;
<br />Insurance required shall: (1) be endonsed to inure Boyer, its officers, directors, employees,
<br />representatives and agent as additional insureds an an ISO form CG 20 26 07 04, Additional
<br />Insured — Designed Person or Organization or die equivalent, (2) be endorsed to waive my
<br />rights of subrogation against Buyer, (3) provide commmral liability coverage to Seller for is
<br />indemnity obligations contrast under tuts Agreement although my failure to comply will nor
<br />affect the validity or enforceability ofsuch indemnity obligations; and(4) be cndorseelto provide
<br />that such insomnce is pnimayto andnon-conhiboary with my otherinsurance obtained by, fix
<br />or on behalf Buyer notrvtthourctng my "other insurance' provision contained within such
<br />policies.
<br />c Seller shall provide written notice to Buyer no less that 30 days poor to the effective date of
<br />cancellation or ma " reduction of any required insurance coverage, including any
<br />modification affecting anypolicy's compliance with these Terns.
<br />d Prior hereto and a my fare upon request, Seller shall provide certificates oflranatce to Buyer
<br />along witln copies of the additional insured, waiver of subrogation and primary / non -
<br />mandatory endessenrnnts and other documentation as may be required by Bayer demonstrate
<br />the instance coverages required herein Seller's delivery of produces as described in these
<br />Terns constraints a specific representaion that all iignachce coverages requited herein are, in
<br />place and effective for the period ofspply. Seller specifically recognizes and acknowledges thin
<br />its compliance with the memance provisions described herein is material to Buyer's decision to
<br />enter into an order. Seller specifically recoguzes and acknowledges that the insurance required
<br />in this Agreement does not limit Seller's responsibility in the event ofa lass.
<br />9. CHANGES. Buyer shall have the righter anytioneto make changes in drawings, specifications,
<br />mandate, packaging, fine and place of delivery, and method of trasportaiom If any such
<br />changes cause an increase or decree¢ in the oust or the fine required for the performance, a
<br />numully agreed upon equitable adjusttnea shall be made therein. Seller agrees to accept any such
<br />charges subject to this section.
<br />10. SETOFFS. Buyer has the right to set off against any mnuarts dre Seller heremrder from any
<br />mnorrts owed to Buyer by Seller arising from die or any other transition.
<br />II. RECALL. In the event that Buyer determines, in Buyer's sole discretion, that any
<br />defect, nonconformance or deficiency in any of the Goods requires a field campaign,
<br />recall or similar action ('Recall"), to repair, replace or remediate any Goode or any of
<br />Buyer's products in which Goods the incorporated, Seller shall be liable to Buyer and its
<br />customers for all costs and expenses with regard to the foregoing including, without
<br />limitation, onomeys' fees and count costs.
<br />12, FORCE MAJELRtE. Buyer shall not be liable for failure to take delivery ofthe Goods or to
<br />allow performance of the Services if such £alum or inability is due to causes beyond Buyers
<br />reasonable control.
<br />13. TERMINATION FOR CAUSE. Boyer maytenninate its orderwithort liability, in whole orin
<br />part, a any time, if(i) Seller fails to deliver the Goods or to perform the Services by the specified
<br />fine or any extension thereofaathorimd by Buyerin writing (u) a petition initiaing apmceeding
<br />order arty applicable law relating to banthaptcy, insolvency, in temporization is filed by or
<br />so= Seller, (di) Seller eaea¢es an assigniand for berefit or creditors; (iv) a receiver is
<br />appointed for Seller or any substantial pat of its assets; in (v) Buyer shall have any reeonable
<br />ground for irseersity with respect to Sellers ability to perform and Seller in rouble to provide
<br />Buyer with adequate assurance of its ability to perform within ten days after written request
<br />therefore by Buyer. Buyers fight under this section to teminme its order is not an exclusive
<br />mmedy. Buyer shall be entided to all other rights and remedies it may either in law or in equity.
<br />No tenninguar shall affect any accrued rights or obligations ofeither Party as ofthe of&¢tire data
<br />ofanchtennlnatiom
<br />14. TERMINATION FOR CONVENIENCE OF BUYER. Buyer may terminate its order a its
<br />converience at my time by witted notice to Seller Fix spemaily prepared products which are
<br />untgre to Buyers order, any partially completed work or may materials whose fill man are
<br />inchaded in the cancellation charges shall be identified in writing and held by Seller for disposition
<br />in accordance with Buyers wotten imtntaions.
<br />15. TOOLING. Any tooling provided by or specifically paid for by Buyer shall be and remain the
<br />sole property of Buyer. Seller shall be responsible for maintenance of the tooling while in its
<br />possession and shall return tooling to Buyer immediately rpm demand Seller waives any lien
<br />rights or other rights to retain tooling and acknowledges that its obligation to retur tooling upon
<br />demand is difional.
<br />16. AUDIT. Buyer and its designees shall have the right in andit and inspect Seller and Seller's
<br />shppliersto determine Seller's and its supplier's compliance with the ceder and theseTenms.
<br />17. NOTICES. Any and all notices or oiler cotnmuicatoms requdred or desired to be given in
<br />mmrection with this order will be given in writing and will be deemed effective upon personal
<br />delivery on the third day after mailing if sent by certified mail, postage prepaid harm receipt
<br />requested, or me business day ado deposit if sort by a nationally recognized courier semce
<br />which maintains evidence ofthe nine, place and receipt of delivery, mid in each case ifaddressed
<br />as set both in the order (or such other addresses a party may designate in writing fran time to
<br />arnne), plus Seller shall a ispach a copy to The Mariana Group LLC, 181 West Madison Street,
<br />26th floor, Chicago, Illinois 60602, Alto General Counsel.
<br />18. BUYER INFORMATION. BUYER MAKES NO WARRANTY WITH RESPECT TO
<br />INFORMATION PROVIDED BY BUYER TO SELLER ANY IMPLIED WARRAN'THS
<br />THAT MAY EXIST WITH RESPECT TO ANY INFORMATION PROVIDED BY BUYER,
<br />INCLUDING ANY WARRANTY OF MERCHANTABILITY AND WARR9 TY OF
<br />FITNESS FOR A PARTICULAR PURPOSE ARE EXCLUDED. Seller acknowledges and
<br />agrees tha any sales forecasts, quantity prrchase estimates or similar Injections received from
<br />Buyer an act purchase conunitwerts of Buyer, bur¢ rather represent eadmaes fo planing
<br />purposes only Buyer shall have an obligation to purchase or otherwise compensate Seller for my
<br />of Seller's finished products, or unfireshed raw materials, but covered by a purchase order issued
<br />by Buyer.
<br />19. WAIVER. All waivers by Brrya shall be in writing Failure of Buyer a my time to require
<br />Sellers performance of my obligation hereunder shall not affect Buyer's fight to require
<br />Performance of item obligation No delay or omission in the exercise of my right, power, or
<br />remedy hereunder shall impair such right, power, or horridly or be considered to be a waiver of
<br />my defect or acquiescence therein
<br />20. MISCELLANEOUS. Seller shalnot assign Buyer's order or my modes due orto became due
<br />from Buyer hereunder withio¢ Buyers prior written mnsea. These Terns shall be conarth din
<br />accordance with the paws of Texas, without regard to any roles m conflicts of laws. Provisions
<br />which by their nature snood survive will reman in force after my temmvuton or expiration. The
<br />section headings contained herein ere no part of these Terns and an, included solely for the
<br />convenience ofthe parties
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