Terms and Conditions

1. APPLICABILITY: This purchase order is an offer by Moore Fans, LLC (“Buyer”) for the purchase of the goods specified on the face of this purchase order from the party to whom the purchase order is addressed (the "Seller") in accordance with and subject to these terms and conditions (the "Order"). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller's acceptance to the terms of the Order. These terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller's general terms and conditions of sale or any other document issued by Seller in connection with this Order.

2. ACCEPTANCE: Receipt from Seller of an acceptance or any document purporting to be an acceptance of this Order, or receipt of goods shipped or work performed under this Order does not constitute any assent by Buyer to any terms which are different from or additional to the Terms and Conditions on the Face and Reverse Side hereof unless expressly assented to in writing by Buyer.

3. MODIFICATION: No change or modification of this contract shall be made without Buyer's express written consent. Seller will notify Buyer of any change or modification in process, vendor, or otherwise that may negatively affect the quality, timeliness, or quantity of product received by Buyer. Any changes or modifications require Buyer’s written consent, which can be given in Buyer’s sole discretion. Any changes or modifications without the written consent of Buyer will be void ab initio and Buyer shall be permitted to seek any and all available remedies at law or in equity.

4. PRICE: If price is not stated in this Order, the goods shall be billed at the price last quoted or at the prevailing market price whichever is lower. If prices in effect on the date of this Order are reduced prior to date of shipment or billing, the goods subject to this Order shall be billed at such lower price.

5. DELAYS: If Seller shall fail or refuse to proceed with this Order, or if Seller shall fail to make delivery of all items within the time specified by Buyer, Buyer shall have the right to cancel all or any part of this Order. Time is of the essence to this contract.

6. QUANTITY: The specific quantity ±10% ordered must be delivered in full. Delivery of any unauthorized quantity is subject to Buyer's rejection, and such goods shall be held at Seller's risk. Buyer may return such goods at Seller's risk, and all transportation charges to and from the original destination shall be paid by Seller.

7. QUALITY: Seller warrants that all goods furnished and work performed hereunder shall conform strictly to specifications and drawings shall be free from defects of material or workmanship shall be merchantable and fit for their particular purposes and operate as intended. No inspection or acceptance of, or payment for, goods made by Buyer shall constitute a waiver of such warranties or of any action against Seller for breach of such warranties. These warranties survive any delivery, inspection, acceptance or payment of or for the goods by Buyer.

8. DEFECTIVE GOODS: If any goods furnished hereunder fail to meet the above warranties, Seller upon notice thereof from Buyer, shall promptly correct or replace the same at Seller's expense. If Seller shall fail to do so, Buyer may cancel this Order as to all such goods, and in addition, may cancel the then remaining undelivered balance of this Order. After such notice to Seller, all such goods shall be held at Seller's risk. Buyer may return such goods at Seller's risk and all transportation charges to and from the original destination shall be paid by Seller. Any payment for such goods shall be refunded by Seller unless Seller promptly corrects or replaces the same at its expense. Seller agrees to defend, indemnify and hold harmless Buyer from any and all loss, liability, cost or expense (including attorneys' fees) by reason of any injury or damage, whether direct or indirect, consequential, or otherwise, including all claims of such injury or damage, to persons or property relating to the goods purchased by Buyer from Seller or Seller’s breach of these terms.

9. SPECIFICATION: Goods ordered according to Buyer's drawings and specifications are to be manufactured in accordance with the latest issue of such drawings and specifications, and such drawings and specifications are to be considered a part of this Order.

10. SPECIAL TOOLS: No charge shall be made for patterns, pattern equipment, dies, jigs, fixtures or special apparatus used in the manufacture of the articles shown on this Order unless written authorization is given by Buyer.

11. MATERIALS, EQUIPMENT FURNISHED BY BUYER: All writings, drawings and photographs furnished or otherwise provided by Buyer, as well as all patterns, dies, jigs, fixtures or special apparatus furnished by Buyer, shall be treated as confidential and remain the exclusive property of Buyer. Such materials and equipment shall not be used to the detriment of Buyer and disclosure to third parties of information derived from such documents is forbidden. All such documents and reproduction thereof, as well as equipment, shall be returned to Buyer as soon as Seller has no further need for them in connection with this Order, and in any event, no later than the time of delivery of the goods ordered herein.

12. MATERIALS FURNISHED BY BUYER: Any goods furnished by Buyer, other than on a charge basis, shall be deemed to be held by Seller on consignment from Buyer and all unused goods shall be
returned to Buyer for full credit. Only goods not so returned shall be paid for by Seller. All such goods of Buyer shall be insured by Seller against loss.

13. PATENTS: Seller warrants that all goods furnished under this Order do not infringe any patent rights and agrees to defend any suit brought against Buyer so far as based on a claim that any goods furnished under this Order cause infringement of any patent rights, if notified promptly in writing by Buyer and given authority, information and assistance (at Seller's expense) for the defense of same, and Seller shall pay any damages and costs assessed against Buyer in such suit, and Seller shall further indemnify and hold Buyer harmless from all losses, expenses and damages resulting from such claim or suit. If any goods furnished under this Order are in such suit held to be an infringement and the use thereof is enjoined, Seller shall at its sole expense make every reasonable effort to obtain for Buyer a license to continue using such goods; if after a reasonable time Seller is unable to obtain such a license, Seller at its expense either replace such goods with equivalent non-infringing goods or modify such goods so that they become non-infringing; if unable to do any of the above, Seller shall remove such goods and refund to Buyer the money paid therefor, in addition to indemnifying and holding Buyer harmless as aforesaid.

14. CANCELLATION: Buyer may cancel this Order at any time after acceptance and before complete delivery is made, upon the happening of any of the following: Insolvency of the Seller; the filing by or against Seller of a petition initiating a proceeding under the Bankruptcy Act; the appointment of a receiver or trustee for Seller or any part of its assets; the execution by Seller of an assignment for the benefit of creditors.

15. ASSIGNMENT: Any transfer or assignment (by contract, operation of law, or otherwise) of the obligations of Seller hereunder upon acceptance of this Order shall be void and shall automatically be deemed a material breach of this Order and agreement relieving Buyer from any further obligations hereunder.

16. APPLICABLE LAWS: This Order shall be construed and governed according to the laws of the state from which this Order issued as shown by the address of Buyer on the face hereof, Seller in the performance of this Order, shall comply with the provisions of the Fair Labor Standards Act, as amended, and all other applicable Federal, State and local laws, regulations, rules and ordinances, and agrees, upon request, to furnish Buyer a certificate to such effect in such form as Buyer may from time to time require. Seller warrants that such laws shall not be violated in the performance of this Order and, Seller shall indemnify and hold harmless Buyer from all losses, claims, expenses (including attorneys' fees), penalties or payments resulting from any such violation or from any allegation or charge of such violations.

17. WAIVER: Waiver by Buyer in any instance of any breach of any provision of this Order shall not constitute a waiver of such provision thereafter and shall not constitute a waiver of breach of any other provision of this Order. No act, conduct or failure to act of Buyer shall constitute a waiver of any provision contained herein unless such waiver is in writing, executed by Buyer and delivered to Seller.

18. COMPLIANCE: Seller shall strictly comply with the terms and conditions of this Order, notwithstanding any usage of trade or course of dealing to the contrary.

19. REMEDIES: Buyer shall have all remedies allowed by law and all remedies herein provided are cumulative and not exclusive thereof.

20. LIENS: Seller will place no liens against Buyer. In the event Seller obtains any mechanics or other lien, by operation of law or otherwise, Seller will execute an appropriate document waiving all liens against Buyer.

21. FORCE MAJEURE: Fires, floods, accidents, labor disturbance, riots, war conditions, nuclear incidents, acts of God, acts or requirements of governmental or civil authority laws or regulations, accidents at Buyer's facilities, involuntary cessation of operation of any of Buyer's plants for any reason, or other causes beyond the reasonable control of Buyer rendering Buyer unable to receive the items or services covered by this purchase order will permit Buyer at its option to cancel this order by notice to Seller, without liability of Buyer to Seller for such cancellation. The occurrence of a force majeure event that impairs Seller's ability to deliver items or perform services promised shall not relieve Seller of its obligations hereunder or liability for breach of this agreement. In the event of a force majeure event that impairs Seller's ability to perform hereunder, Seller shall be responsible for obtaining replacement items or services at its own cost and expense, including any increased costs of obtaining items or services beyond those set forth in any purchase order or agreement between Buyer and Seller.

22. INSURANCE The following is required:

• Certificate providing evidence of General Liability coverage. Limits should be at least $1MM occurrence/$2MM aggregate.
• Certificate providing evidence of Auto Liability coverage. Limits should be at least $1MM CSL.
• Certificate providing evidence of Umbrella/Excess Liability coverage. Limits should be at least $2MM.
• Certificate providing evidence of Employers Liability (Work Comp) coverage. Limits should be at least $1MM/$1MM/$1MM.
• Certificate providing evidence of Crime coverage (if applicable). Limits should be at least $1MM (Moore Fans, LLC should be listed as “Loss Payee” as it pertains to the scope of this agreement and work to be performed).
• Certificate providing evidence of Errors & Omissions/Professional Liability coverage (if applicable – when providing professional services). Limits should be at least $1MM (Moore Fans, LLC should be listed as “Additional Insured” as it pertains to the scope of this agreement and work to be performed).
• Certificate providing evidence of Pollution Liability coverage (if applicable – when providing environmental related services). Limits should be at least $1MM (Moore Fans, LLC should be listed as “Additional Insured” as it pertains to the scope of this agreement and work to be performed).
• Please notate the required certificate(s) with the following wording in the “Description” field:
  • “Moore Fans, LLC and all affiliated entities are included as additional insureds on the General Liability, Auto Liability, and Umbrella Liability policies, as their interests would appear and where required by written contract. Moore Fans, LLC and all affiliated entities are named as primary, noncontributing additional insureds, where required by written contract, including products and completed operations, excluding workers compensation and employers liability. Waiver of subrogation applies as allowed by law, where required by written contract.”
• A statement that Moore Fans, LLC and, as needed, any and all affiliated entities will receive 30 days’ notice of cancellation if any coverage is cancelled for any reason.
• A copy of all applicable Additional Insured, Primary & Noncontributory, and Waiver of Subrogation type endorsements must be attached the required certificates of insurance.

SHIPPING AND INVOICING

1. Order numbers must appear on all shipping manifests and bills of lading, invoices, and correspondence and must be marked on or tagged to all material shipped.

2. The original Bill of Lading and notice of each shipment, giving Order number and kind and quantity of material, must be sent by mail, on the date of shipment, to Buyer or to a consignee designated by Buyer.

3. No invoices may be rendered by Seller until after the goods ordered herein have been shipped.

4. Partial shipments are not to be made unless authorized in writing by Buyer.

5. It is the responsibility of Seller to use the lowest published freight rates and the most practical and economic manner of shipment. Any excess transportation charges incurred are to be borne by the Seller. If most economical method will not assure delivery by date shown, contact Buyer for instructions.

6. Routings for all carload shipments must be procured from Buyer. When making request, advise shipping point and originating carrier.

7. If shipment is made wholly or partially by water, it must be covered by maritime insurance if such protection is not included in tariff rate.

8. No charge, unless specifically agreed upon, shall be made for packing, boxing, containers. cartage to freight, express or parcel post station or for other matters relating to preparation of shipment.

9. Shipments must be forwarded by insured parcel post, or express, whichever is less, provided the insurance and parcel post combined charges or express charges do not exceed the minimum freight charge. Parcel post shipments are a risk of Seller. (Receipt must accompany invoice, weight of material, amount of insurance and parcel post must be shown separately thereon.)

10. Dates of allowable cash discount will be calculated from the date of receipt of invoice and not the date of invoice.

11. All goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.