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Purchase Order Terms and Conditions

  1. 1.                Applicability.  These Purchase Order Terms and Conditions (these “Terms”) are incorporated by reference as part of the Purchase Order issued by the purchasing entity (such entity, the “Purchaser”) listed on the face of the Purchase Order (whether listed under the “Bill To” line or indicated by a similar designation) for the purchase from the party listed as the “Vendor” or similar term on the face of the Purchase Order (such party, the “Seller”) of the goods specified on the face of the Purchase Order (the “Goods”).  The Purchase Order 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 Purchase Order. These Terms expressly limit Seller’s acceptance to the terms of the Purchase Order. These Terms prevail over any terms or conditions contained in any quotation or other documentation provided by Seller and expressly exclude any of Seller’s general terms and conditions of sale.  In the event of any conflict or inconsistency between (a) the face of the Purchase Order, (b) these Terms, and (c) any quotation provided by Seller and accepted by Purchaser (if applicable, the “Quote”), the order of precedence shall be the order listed above, where clause “a” receives the highest priority and clause “c” receives the lowest priority.  These Terms apply to any repaired or replacement Goods provided by Seller hereunder. Purchaser is not obligated to any minimum purchase or future purchase obligations under the Purchase Order. The Purchase Order is not binding on Purchaser until accepted by Seller. Purchaser may withdraw the Purchase Order any time before it is accepted by Seller.
  2. .  An Affiliate of Purchaser may purchase from Seller any Goods described in one or more purchase orders issued by such Affiliate and accepted by Seller.  Each such purchase order shall create an independent contractual relationship and shall be subject to these Terms.  Seller’s sole recourse for breach of any purchase order shall be solely against the relevant Purchaser Affiliate that executes the applicable purchase order.  Neither Purchaser nor any other Purchaser Affiliate, except the Purchaser Affiliate which is a party to the purchase order, shall be bound by or be responsible or liable for any obligation and/or duty resulting from a purchase order or any further agreement resulting therefrom.  “Affiliate” means any legal entity that, directly or indirectly, owns, is owned by, or is under common ownership with LMG Holdings, Inc. for so long as such ownership exists.  For the purposes of the foregoing, “own”, “owned”, or “ownership” shall mean majority ownership or controlling interest of such legal entity.  For the avoidance of doubt, Affiliates include Alcohol Monitoring Systems, Inc., Alcohol Monitoring Systems, Ltd., PAS Systems International, Inc., and #1 A LifeSafer, Inc.
  3. . Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order as the “Request Date” or as otherwise agreed by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Seller shall indemnify Purchaser against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. All Goods shall be delivered to Purchaser’s facility indicated in the “Ship To” line on the face of the Purchase Order (the “Delivery Location”) during Purchaser’s normal business hours or as otherwise instructed by Purchaser.
  4. . If Seller delivers more or less than the quantity of Goods ordered, Purchaser may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Purchaser does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
  5. . Delivery shall be made in accordance with the delivery terms on the face of the Purchase Order.  If no delivery terms are specified on the face, the delivery terms shall be DDP (Incoterms 2020) the Delivery Location. Seller shall give written notice of shipment to Purchaser when the Goods are delivered to a carrier for transportation. Seller shall provide Purchaser all shipping documents, including the commercial invoice, packing list, air waybill/bill of lading and any other similar documents. Seller shall include the Purchase Order number on all such shipping documents, invoices, correspondence and any other documents pertaining to the Purchase Order.  All Goods shall be packed for shipment according to Purchaser’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition; notwithstanding the foregoing, all packages must be constructed for stocking and packages weighing in excess of 75 pounds must be packaged for handling with a mechanical device. Seller must provide Purchaser prior written notice if it requires Purchaser to return any packaging material. Any return of such packaging material shall be made at Seller’s risk and expense.
  6. . Title passes to Purchaser upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.
  7. . The Purchaser has the right to inspect the Goods on or after the Delivery Date. Purchaser, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if the Goods do not confirm to the Purchase Order or the Quote or are defective. If Purchaser rejects any portion of the Goods, Purchaser has the right, effective upon written notice to Seller, to: (a) rescind the Purchase Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Purchaser requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Purchaser may replace them with goods from a third party and charge Seller the cost thereof and terminate the Purchase Order for cause pursuant to Section 17. Any inspection or other action by Purchaser under this Section shall not reduce or otherwise affect Seller’s obligations under the Purchase Order, and Purchaser shall have the right to conduct further inspections after Seller has carried out its remedial actions.
  8. . The price of the Goods is the price stated on the face of the Purchase Order (the “Price”). If no price is included in on the face of the Purchase Order, the Price shall be the price set out in the Quote.  If no price is included on the face of the Purchase Order or in the Quote, the Price shall be Seller’s published price list in force as of the date of the Purchase Order.  Unless otherwise specified in the Purchase Order or the Quote, the Price includes all packaging, transportation costs to the Delivery Location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Purchaser.  Any travel expenses of Seller to be reimbursed by Purchaser must be approved in advance by Purchaser.
  9. .  Unless otherwise set forth on the face of the Purchase Order, payment for the Goods shall be due 60 days after delivery of the Goods to the Delivery Location.
  10. . Without prejudice to any other right or remedy it may have, Purchaser reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Purchaser to Seller under the Purchase Order.
  11. . Seller warrants to Purchaser that for a period running until 24 months after the date on which risk of loss transfers from Seller to Purchaser pursuant to Section 6 of these Terms, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Purchaser; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights, except that Seller does not provide any warranty regarding designs provided by Purchaser. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Purchaser. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Purchaser’s discovery of the noncompliance of the Goods with the foregoing warranties. If Purchaser gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, within 30 days replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming Goods to Seller and the delivery of repaired or replacement Goods to Purchaser, plus an administrative processing fee reasonably charged by Purchaser, not to exceed $150.  If Seller fails to comply with its obligations in the immediately preceding sentence, Purchaser shall have the right to have the defective or nonconforming Goods repaired by third parties and Seller shall, on demand, reimburse Purchaser for all costs incurred by Purchaser in connection with such repair.  The rights and remedies of Purchaser  under the Purchase Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
  12. . Seller shall defend, indemnify and hold harmless Purchaser and its directors, officers, shareholders and employees and Purchaser’s customers against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers arising out of or occurring in connection with (a) any Goods that do not conform to the warranties set forth in the Purchase Order, (b) Seller’s negligence, intentional omission, willful misconduct, or breach of the Purchase Order, or (c) any claim or allegation that Purchaser’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party.  Seller shall not enter into any settlement without Purchaser’s prior written consent.
  13. . Seller represents, warrants, covenants, and agrees that it is, and the Goods are, in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Purchase Order. Seller shall comply with all applicable export and import laws of all countries involved in the sale of Goods under the Purchase Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.
  14. .  Unless otherwise specified in the Purchase Order, all tools, special dies, molds, patterns, jigs and other equipment (“Tooling”) required for manufacture of the Goods shall be furnished by Seller at its own expense. All tooling furnished by Purchaser or paid for by Purchaser, and any replacements thereof, shall remain Purchaser’s property. Seller shall, at its own expense, safely store such property separately from Seller’s property, plainly identify such property as Purchaser’s property, and maintain such property in accordance with sound commercial practice. Seller shall not use such property except in filing this or other Purchase Orders for Purchaser or its Affiliates. All such property shall be held at Seller’s risk and, unless otherwise agreed in writing by Purchaser, shall be insured by Seller at its expense for an amount equal to its replacement cost and with loss payable to Purchaser. All such property shall be delivered promptly to Purchaser’s designee on request.
  15. .  All work, including without limitation, any experimental development or research work called for or required under the Purchase Order shall be considered work “made for hire” and the products of such work shall be the sole property of Purchaser. Seller agrees to disclose to Purchaser all such work product, and, on request, to assign to Purchaser each invention and property right resulting therefrom.  The drawings, drawing files, designs, specifications, and similar documents provided by Purchaser to Seller are the property of Purchaser, and Seller shall not own or claim a copyright or other ownership right in such materials.   Purchaser shall retain all common law, statutory, and other intellectual property rights with respect thereto. Seller acknowledges and agrees that, if Seller shall, in cooperation with Purchaser, develop any improvement or enhancement in the design of any Good, full title to such improvement or enhancement shall vest solely in Purchaser. 
  16. .  Purchaser may, at any time and from time to time, by written change order, postpone the Delivery Date and make changes in: (a) drawings, specifications or designs; (b) method of packing or shipment; (c) inspection or testing methods or standards; (d) quantity of items ordered; and/or (e) place of delivery. If any such change causes a material increase or decrease in the cost of or the time required for the performance of the Purchase Order, an equitable adjustment shall be made to the Price or Delivery Date or both. Any claim by Seller for adjustment under this Section shall be made in writing within 30 days after receipt of written notice of the change, and any claim not made within such 30-day period shall be deemed waived. If Seller’s claim for adjustment includes the cost of any property made obsolete or excess as the result of a change order, Purchaser shall have the right to direct the disposition of such property. No change, modification or revision of the Purchase Order shall be binding on Purchaser unless made in writing and signed by a duly authorized representative of Purchaser. Nothing herein shall excuse Seller from diligently proceeding with performing its obligations under the Purchase Order as changed.
  17. . Purchaser may terminate the Purchase Order, in whole or in part, at any time with or without cause for undelivered Goods on 30 days’ prior written notice to Seller. Purchaser may terminate the Purchase Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Purchaser may terminate the Purchase Order upon written notice to Seller. If Purchaser terminates the Purchase Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Purchaser prior to the termination.
  18. . No waiver by any party of any of the provisions of the Purchase Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Purchase Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Purchase Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
  19. . All non-public, confidential or proprietary information of Purchaser disclosed by Purchaser to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Purchase Order is confidential and may not be disclosed or copied unless authorized by Purchaser in writing. Such information shall include, without limitation, Purchaser’s drawings, drawing files, designs, and specifications. Upon Purchaser’s request, Seller shall promptly return all documents and other materials received from Purchaser. Purchaser shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party.
  20. . Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Purchase Order without the prior written consent of Purchaser. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.  
  21. . The relationship between the parties is that of independent contractors. No relationship of exclusivity shall be construed from the Purchase Order.
  22. All matters arising out of or relating to the Purchase Order shall be governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule.  Any legal suit, action or proceeding arising out of or relating to the Purchase Order shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in Hamilton County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
  23. . All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Purchase Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  24. . If any term or provision of the Purchase Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  25. .  Seller agrees that neither technical data, software or other intellectual property of Purchaser nor the direct product thereof will be shipped to any recipient located within any country in Afghanistan, the Peoples Republic of China, or any country in Country Group E as specified by the United States Export Administration, without advance written authorization from the United States government and Purchaser.
  26. .  Seller shall notify Purchaser whenever any actual or potential labor dispute delays or threatens to delay the timely performance of the Purchase Order.
  27. .  Seller shall not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin to the extent required by law.
  28. .  If the face of the Purchase Order indicates that First Article Inspection (FAI) will apply (such as by the notation “Y” under “FAI”), then Seller agrees to test and inspect either the first part produced by the new process or a sample from the first batch of parts prior to production release.  If Seller doesn’t have the in-house capability to perform the FAI or if Purchaser requests, the FAI may be conducted by an approved subcontract supplier such as a dimensional inspection or metrology laboratory. As used herein, First Article means a new Good, a Good with revised drawings, or a Good manufactured after a change in Seller’s manufacturing location or other change, which must first be evaluated and accepted by Purchaser.
  29. .  If the face of the Purchase Order indicates that Seller must provide a Safety Data Sheet (SDS) (such as by the notation “Y” under “SDS”), then Seller agrees that it shall provide a Safety Data Sheet with each shipment of Goods.  Such Safety Data Sheet shall contain product information regarding the Goods and may include precautions, if required, instructions, and recommendations associated with the intended use, transportation, delivery, unloading, discharge, storage, handling, and shelf life of the Goods.
  30. .  If the face of the Purchase Order indicates that calibration is required (such as by the notation “Y” under “Cal Rq”), then Seller agrees that it will provide a calibration certification from the applicable equipment manufacturer or provider with each shipment of such Goods.
  31. . Provisions of the Purchase Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Purchase Order including, but not limited to, the following provisions: Set-off, Warranties, Indemnification, Confidentiality, Governing Law, Submission to Jurisdiction, and Survival.