Terms & Conditions of Purchase

Identification of Parties; Acceptance of Terms

These Terms and Conditions of Purchase (“Terms”) are incorporated into any purchase order (“Order”) issued by B.G.R., Inc., an Ohio corporation (“BGR”) for any goods, equipment, services and/or other deliverables (hereinafter collectively called “Goods”) to the supplier providing the Goods identified in that Order (“Seller”), except to the extent any Terms conflict with a written agreement between BGR and Seller (“Parties”). Seller has accepted an Order (including these Terms) if Seller gives a verbal, written or electronic acknowledgement of, or initiates performance under, that Order. By accepting an Order, Seller waives all terms contained in its quotation, acknowledgment, invoice, or other documents which are different from or additional to the Terms and all such different or additional terms shall be null and void. No waiver or modification of the Terms shall be of any force or effect unless made in writing and executed by BGR’s authorized representative. Seller and BGR agree and it is their intent that the battle of the forms section of UCC § 2-207 (ORC §1302.10) shall not apply to any Order and that the Terms shall govern.

Prices; Payment

Goods shall be delivered to BGR for the price stated in the Order, which price shall include all sales, use and other applicable taxes. Unless the Order states different payment terms, payments are net 90 days to be paid in United States dollars. Seller will make no charge for any packing, crating, storage, insurance, shipping, or delivery expense, unless authorized in the Order. Payments may be adjusted for Seller’s errors, defects or non-compliance with the Order (including these Terms). Each Seller invoice, packing list, and related documents must accurately and easily identify the Goods and Order number.

Delivery; Title

Time is of the essence. Seller will deliver all Goods within the time period stated in the Order, unless BGR specifies a longer, or the Parties agree to a shorter, time period. All deliveries of Goods are FOB BGR’s facility. Title and risk of loss transfer to BGR upon BGR’s receipt of the Goods at its facility.

Cancellation; Order Change

With written notice, BGR may terminate these Terms or an Order in whole or part. In the event any Order is terminated because of Seller’s failure to comply with these Terms or an Order or because it has otherwise become apparent that Seller is unable to fulfill its obligations under these Terms or an Order, BGR shall have no liability of any kind to Seller and Seller shall be liable for all damages in law or equity, including the excess cost of procuring similar items. If an Order is terminated for the convenience of BGR, Seller will be compensated to the extent that Goods have been accepted by BGR prior to the effective date of Termination.

BGR shall have the right at any time to make changes in an order by written notice to Seller, and Seller agrees to comply with such changes. If such changes cause a material increase or decrease in Seller’s costs or time of performance, Seller shall notify BGR immediately and negotiate an adjustment. Seller may not change material of manufacture, sources of supply, manufacturing process or location without the prior written consent of BGR. If for any reason Seller is unable to supply any Goods, Seller shall notify BGR in writing of any substitutions and modifications of the specifications of the Goods ordered by BGR. In such case, BGR may terminate the order in whole or in part with no liability to BGR.

Warranties; Remedies

Seller represents and warrants to BGR that all Goods: (i) shall be free from defects in material and workmanship; (ii) shall be sold with good title, free and clear of any liens, security interests or encumbrances whatsoever; (iii) shall be, in the case of products sold, merchantable; (iv) not infringe upon or misappropriate any published patent or other intellectual property rights of any third party, either as delivered or when used for their intended purpose; and (v) shall conform to the specifications that have been previously provided by BGR to Seller (if applicable).

Acceptance; Noncomforming or Rejected Goods

BGR may not perform incoming inspections of the Goods and Seller waives any requirement that BGR conduct such inspections. Payment for nonconforming Goods will not: (i) constitute an acceptance of such Goods; (ii) limit or impair BGR’s right to assert any legal or equitable remedy; or (iii) relieve Seller's responsibility for latent defects.

In addition to BGR’s other rights and remedies set forth herein, including without limitation, its right of indemnification, in the event any Goods do not conform with the above representations and warranties and such defects or non-conformance is disclosed to Seller within one year after shipment by Seller, Seller shall, at BGR’s sole option, either promptly replace such defective or non-conforming products at Seller’s sole cost and expense or refund the purchase price paid by BGR.

Confidentiality

All specifications, data and other information furnished by BGR to Seller in connection with these Terms or any Order remain the exclusive intellectual property of BGR and shall be treated by Seller as proprietary and shall not be disclosed or used, except as necessary to fulfill its obligations hereunder, without prior written approval of BGR. The purchase of the Goods does not authorize Seller to use the name of or make reference to BGR for any purpose in any releases for public or private dissemination, nor shall Seller divulge or use in any advertisement or publication any specifications, data, or other information pertaining to or relating to this usage without prior written approval of BGR.

Safety

While on BGR’s premises, Seller and its employees, agents and subcontractors shall comply with BGR’s site-specific rules and shall ensure that all employees, agents and subcontractors have a safe work environment. Seller is solely responsible for the safety of its employees, agents and subcontractors and the means and methods utilized by them in delivering the Goods, and Seller agrees that BGR shall have no such responsibility. In the event an employee, agent or subcontractor of Seller is injured while on BGR’s premises, Seller shall immediately notify BGR of the time, nature, and severity of the injury and cooperate with BGR and provide BGR with information applicable to any investigation of such injury.

Limitation of Liability; Indemnification

BGR will not be liable to Seller for any indirect, special, incidental, or consequential damages, whether based on contract, tort or any other legal theory arising out of, or relating to BGR’s purchase of Goods from Seller.

Seller agrees to indemnify, defend and hold harmless BGR and its employees, officers, directors and shareholders from and against any and all expenses, claims, demands, losses, damages, actions, or liability of any kind, including reasonable attorney's fees incurred for any and all damage or injury of any kind or nature whatever (including death) to all persons, (including those employed by Seller) or property which is caused by, arises out of, on account of, or as a result of: (i) use of the Goods provided hereunder; (ii) breach by Seller of any of its representations, warranties, covenants and/or any agreements in an Order or the Terms; (iii) any act or omission of Seller, its agents, employees, representatives or subcontractors or failure to comply with an Order or the Terms; or (iv) any alleged infringement of any trademark, patent, copyright or other proprietary right, by reason of the sale or use of the Goods. If any of the Goods or any part thereof is held to constitute infringement and its use is enjoined, Seller shall at its own expense either procure for BGR, its successors, assigns, and customers the right to continue using such Goods or part thereof or replace them with a substantially equivalent non-infringing good or service. Seller further agrees to pay any reasonable attorney's fees incurred by BGR in securing compliance with the provisions of this section.

Additional Terms and Conditions

Except as otherwise agreed in writing, the Terms constitutes the entire agreement between Seller and BGR with respect to the Goods. No modifications shall be binding upon BGR unless in writing signed by BGR’s duly authorized representative. These Terms are governed by the laws of the State of Ohio, without giving effect to its principles of conflicts of law. Seller and BGR each consent to the exclusive personal jurisdiction of the state or federal courts located in Hamilton County, Ohio over any action arising out of or relating to the sale of Goods by Seller to BGR (including the Terms). BGR shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees and other litigation expenses, from Seller relating to any lawsuit or other proceeding arising from or relating to the sale of Goods by Seller to BGR (including the Terms) or any agreement entered hereafter, in which BGR prevails.