Exclusive Terms and Conditions of Sale. These terms and conditions are incorporated into and made a part of the purchase order or proposal (“PO”) by Power-Flo Technologies, Inc, and any of its subsidiaries, affiliates, and unincorporated divisions (“PFT”) to buy from the named manufacturer, distributor, supplier, or other seller (the “Seller”) the products (“Products”) and/or services (the “Services”) referenced in the PO. The PO expressly limits Seller’s acceptance to the terms of the PO, together with such plans, specifications, or other documents that are incorporated by reference in the PO. Contrary provisions in Seller’s quotations, acknowledgements, or any other document that Seller sends in response to the PO, or previously sent to PFT to solicit the PO are hereby rejected and are not binding on PFT, unless PFT accepts them in writing. If Seller submits additional and/or different terms and conditions to PFT, or submits a counteroffer to the PO, PFT’s subsequent performance will not be construed as either acceptance of Seller’s additional and/or different terms and conditions or as acceptance of Seller’s counteroffer.
 

Acceptance of the PO. Seller will be deemed to have accepted the PO if Seller (a) transmits to PFT Seller’s written or oral acknowledgement, (b) begins shipment of the Products, (c) begins manufacture of the Products, if they are to be specially manufactured for PFT, or (d) begins performing Services.
 

Shipment. Shipment of all Products will be F.O.B. point of the destination referenced in the PO (DDP named place of destination per INCOTERMS 2010 for all international shipments). Seller will bear the risk of loss until PFT receives the Products at the point of destination. Title to the Products will transfer to PFT upon receipt. Any shipping dates given in advance of actual shipment are warranted by Seller to be firm.  Time is of the essence with respect to Seller’s performance. If delivery is not completed within the time stated on the reverse side hereof, or if no time is stated, within a reasonable time, Seller will bear all costs, expenses, and damages arising out of any delay in performance of the Services or shipment of the Products, including but not limited to, all costs incurred by PFT in procuring substitute Products or Services in excess of the cost for which PFT would have purchased the relevant Products or Services from Seller. Except as otherwise agreed to in writing, where transportation charges for Products are separately charged to PFT, those charges will in no event exceed the lowest legal freight charges provided by the carrier for the routing specified in effect on the date of shipment.  The Products must be properly packaged for shipment. Each package must be numbered and labeled with PFT’s order number, stock number, contents, and weight and will contain an itemized packing slip. No charges are allowed for packing, crating, freight express or cartage unless specified in the PO.
 

Price, Payment, and Taxes. The price for Products or Services is as set forth in the PO. All prices must be firm. Seller must not fill the PO at any other price. No substitutions are permitted.  In the event of an excess shipment of Products, PFT shall notify Seller, and use its best efforts to protect and preserve the excess shipment amounts.  PFT shall return any excess shipment amounts at Seller’s expense.  Except as otherwise set forth in a separate commercial PO agreed to by PFT, PFT shall make payment for Products or Services net 120 days from the latter of: (i) receipt of Products conforming to the purchase order or the satisfactory performance of Services, or both, or (ii) receipt of a correct Seller invoice. Seller shall be responsible for the payment of all taxes associated with the sale of Products and Services to PFT, except for PFT shall pay its own income tax. In the event any governmental authority having responsibility for assessment or collection of taxes demands certain tax information with respect to this PO, Seller shall provide PFT, in the form and within time limits specified by written notice, the information necessary to enable PFT to comply with that request. 
 

Warranties and Representations. In addition to any warranty or representation that Seller expressly has extended to PFT regarding the Products or Services, Seller warrants and represents that: (i) the Products will be fit for the particular purpose for which they are intended, (ii) the Products will be free from defects in workmanship, design and/or materials, (ii) the Products will be newly manufactured (meaning that they must not have been previously used for any purpose), of merchantable quality, and that they will comply with any and all samples, drawings, blueprints, designs, and specifications, (iii) the Products will not infringe upon any third party intellectual property rights, (iv) Seller has and will have good and marketable title to all Products delivered to PFT in accordance with the POs, free and clear of any and all liens and encumbrances, other than PFT’s lien, if any, and that Seller has full and complete legal rights to manufacture and sell the Products to PFT without the consent of any third party, and (v) all Services will be performed in a timely, professional, and workmanlike manner in accordance with the highest industry standards. The term of the warranties set forth by this Section will be the longer of (a) the maximum term allowed by applicable law, (b) the maximum manufacturer warranty, but in no event less than thirty-six (36) months from the date of shipment or twenty-four (24) months from the date of acceptance of the Product.  During the applicable warranty term and upon PFT’s request, Seller, at its sole expense, must repair, replace, or reimburse PFT for all or any part of any Product that fails to comply with any of the warranties and representations set forth in this Section. Furthermore, PFT has the right to return to Seller at Seller’s sole expense, Products shipped to PFT that are in excess of or less than the quantity designated by the PO.
 

Indemnification. Seller shall defend, indemnify, release and hold PFT and each of its and their directors, officers, managers, employees, agents, representatives, paid professionals, successors, and assigns (collectively, the “Indemnitees”) harmless from and against any and all claims, legal actions, demands, settlements, losses, judgments, fines, penalties, damages, liabilities, costs and expenses of any nature whatsoever (including all attorneys’ fees) (collectively, the “Claims”) arising from any act or omission of Seller, its agents, employees, or subcontractors, except to the extent attributable to the sole and direct gross negligence of PFT.  Seller agrees to include a clause substantially similar to the preceding clause in all subcontracts it enters into related to the fulfillment of this PO.  Additionally, Seller shall indemnify, defend, release, and hold the Indemnitees harmless from and against any Claims arising out of employment or labor claims or proceedings initiated by Seller, its agents, employees, or subcontractors, against or involving PFT.  Seller further agrees to indemnify PFT for any attorneys’ fees or other cost PFT incurs to enforce its rights under this PO. 
 

Inspection and Testing. PFT reserves the right to review Seller’s quality assurance and quality control manuals, procedures, production operations, any associated documentation, and to inspect and witness Seller’s testing. To this end, PFT must be granted access to all parts of Seller’s plant(s) or Seller’s subcontractor’s plant(s) engaged in the manufacturing or processing of any part of the Products. The inspection and witnessing of testing by PFT’s representatives, the lack thereof, or lack of comment or other response from PFT’s representative will in no way release Seller from any of Seller’s obligations under the PO. Seller must ensure that this term becomes a part of Seller’s purchase orders to subcontractor’s manufacturing or processing any part of the Products. Seller and Seller’s subcontractors must notify PFT at least five calendar days in advance of the date when any inspection or test can be made. If, for any reason, the date is set back, Seller must notify PFT immediately. Unless otherwise stated, Seller must furnish the status of any engineering, material procurement, production and shipping information every fourteen (14) days. Seller and its subcontractors must furnish at their own expense all tools, instruments, apparatus, equipment, utilities, facilities, services, and materials necessary for carrying out safe and convenient inspections and tests. Notwithstanding any of the foregoing, the making or failure to make any inspection of the Products must in no way impair PFT’s right to reject defective Products or Products that breach any applicable warranty or representation, nor be deemed to constitute acceptance by PFT of the Products, nor in any way affect Seller’s obligations under the PO. Additionally, Seller must at Seller’s expense furnish to PFT a reasonable number of samples of any Products.
 

Changes. PFT has the right to make changes in any drawings, specifications, designs, blueprints, dies, patterns, tools, printing plates, and other items for Products or Services. If Seller believes that any such change affects the price or delivery date for such Products, Seller must so notify PFT in writing, with adequate supporting documentation, within five (5) calendar days after receipt of PFT’s change. In that instance unless thereafter agreed to in writing by PFT to perform the change, and PFT and Seller will further agree, in writing, upon an equitable adjustment in the price and/or delivery date to reflect the effect of the change. Seller’s request for adjustments will be deemed waived unless submitted in writing within such five (5) calendar days after Seller receives direction from PFT to make the changes. Seller must not suspend performance of the unaffected portion of the PO while PFT and Seller are in the process of making such changes and any related adjustments or at any time thereafter unless so instructed in writing by PFT. If agreed to in writing by PFT, Seller must comply with and perform the change in accordance with the terms of the PO. The failure of Seller and PFT to agree on an equitable adjustment for the change will not affect Seller’s responsibility to comply with and perform the change in accordance with the terms of the PO.
 

Suspension. PFT may, at any time, by written notice to Seller, suspend further performance of all or any portion of the PO by Seller. Such suspensions will neither exceed one hundred eighty (180) consecutive calendar days each nor more than two hundred seventy (270) total calendar days in the aggregate. Upon receiving any such notice of suspension, Seller must promptly suspend further performance of the PO to the extent specified and, during the period of such suspension, must properly care for and protect all work in progress and materials, supplies and equipment Seller has on hand for performance of the PO. Seller must use its best efforts to utilize Seller’s material, labor, and equipment in such a manner as to mitigate costs associated with suspension. PFT, may, at any time, withdraw the suspension as to all or part of the suspended performance by written notice specifying the effective date and scope of withdrawal, and Seller must, on the specified date of withdrawal, resume diligent performance of the work for which the suspension is withdrawn. If Seller believes that any such suspension or withdrawal of suspension justifies modification of the purchase order price or time for performance, Seller must comply with Section 8 hereof entitled “Changes”. In no event will Seller be entitled to any loss of prospective profits, contributions to overhead, or any direct, incidental, consequential, contingent, indirect, exemplary, punitive, circumstantial, or other damages because of such suspension or withdrawals of suspension.
 

Termination/Default - Cancellation. PFT will have the right to terminate this PO. PFT will pay Seller all reasonable direct costs actually incurred by Seller in connection with the PO as of the termination date, provided that Seller must use its best efforts to mitigate costs associated with termination. PFT reserves the right, by written notice of default, to cancel the PO without liability, in the event of any one of the following: insolvency of Seller, the filing of a voluntary petition in bankruptcy by Seller, the filing of an involuntary petition to have Seller declared bankrupt, the appointment of a Receiver or Trustee for Seller, or the execution by Seller of an assignment for the benefit of creditors. If Seller fails to perform as specified herein, or if Seller breaches any of the terms of this PO, PFT reserves the right without any liability, upon giving Seller written notice, to (i) cancel this PO in whole or in part, or (ii) obtain the Products or Services from another source with any excess cost resulting therefrom, chargeable to Seller, if such deficiencies are not remedied. The remedies provided shall be cumulative in addition to any other remedies provided at law or in equity.
 

Subcontractors. Except with respect to Products and services bought or procured in the normal course of Seller’s business, Seller will not subcontract any part of the manufacture and supply of Products or performance of Services without PFT’s prior written consent. Subcontracting will not relieve Seller of any of its duties, obligations, responsibilities, and/or liabilities under the PO. Seller will ensure that all material terms of the PO pertaining to the subcontracting of the manufacture and supply of any Products or performance of Services are incorporated into any subcontract.
 

Drawings and Other Items. Unless otherwise expressly provided in the PO, any and all drawings, specifications, designs, blueprints, dies, patterns, tools, printing plates, and other items used in connection with the manufacture of the Products under the PO that are expressly prepared or constructed by Seller pursuant to the terms of the PO will be the property of PFT and, upon completion of deliveries of the Products or Services under the PO or upon termination of the PO, promptly must be delivered to PFT. No deviation from or any modification to any drawings, specifications, designs, blueprints, dies, patterns, tools, printing plates, or other items will be made by Seller without the prior written consent of PFT.
 

Insurance. Seller must, at its expense, procure and maintain Workmen’s Compensation Insurance to the extent required by applicable law and Contractor’s Bodily Injury Liability and Property Damage Liability Insurance (including Contractual Liability Insurance covering its indemnification obligation in the PO) in the amounts that are approved by PFT.  Seller must furnish to PFT written certificates establishing that the above insurance has been procured and is being maintained. Insurance required by this Section shall be primary and without right of contribution or subrogation from insurance carried by PFT, and must name PFT as an additional insured (except for worker’s compensation and professional liability). PFT must be given at least fifteen (15) days prior written notice of cancellation of any such coverage.
 

No Liens. Seller’s obligations under the PO will include keeping all of PFT’s real property and premises free from all claims, liens, and encumbrances. Seller and all of Seller’s subcontractors and suppliers of any tier waive all rights of lien against the real property and premises of PFT for labor performed or for Products. Seller agrees to indemnify, defend, and hold PFT harmless from any and all such claims.
 

Servicing of Products. During the term Products are supplied hereunder and for a period of six (6) years after PFT has completed the last purchase of Products, Seller will supply all of PFT’s service and replacement requirements for the Products at the most recent valid prices.
 

Confidentiality. The PO, any documents incorporated herein by reference, any drawings, specifications, designs, blueprints, dies, patterns, tools, printing plates, and other items that PFT may furnish to Seller in connection with the Products or Services, and all information designated by PFT as confidential or proprietary will be deemed “Confidential Information.” Seller agrees to maintain and keep all Confidential Information in confidence and not to disclose it to any third party or use such information for any purpose, except as authorized by PFT for the performance of the PO. Seller must not use Confidential Information for any purpose not expressly permitted. Seller must take all precautions to prevent the disclosure of Confidential Information to the same extent that it takes with respect to its own Confidential Information, but in no event less than reasonable care. Seller must require those same undertakings regarding confidentiality to be made by any subcontractor to whom Confidential Information is disclosed. Seller must return or destroy any and all Confidential Information upon demand of PFT, delivery of the Products, or performance of the Services.
 

Independent Contractor. The relationship of PFT and Seller pursuant to the terms and conditions of the PO is and will at all times be that of independent contractors, and no agency, partnership, joint venture, or other similar relationship is intended or created hereby. If any of the Products require, in connection with their installation or maintenance, the services of Seller’s employees, representatives, or agents, Seller agrees to furnish the same at no additional cost to PFT. The employees, representatives, or agents performing those services will not be deemed to be the agents or employees of PFT, and Seller assumes full responsibility for their acts and omissions and exclusive liability for any payroll taxes, contributions imposed by any federal or state law, or any employee benefit plans.
 

Interpretation. The terms, conditions, and limitations set forth in the PO can be modified, altered, or added to only by a contemporaneous or subsequent written instrument signed by an authorized representative of PFT. Regardless of how many times PFT purchases or has purchased Products from Seller by whatever means, each time Seller accepts a PO, it shall be deemed a separate PO that will be interpreted without reference to any other PO between PFT and Seller, or what Seller may claim to be a course of dealing or course of performance that has arisen between PFT and Seller. No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with, or subsequent to the making of the PO will waive, vary, serve to explain, or serve to interpret any of the terms, conditions, and limitations of the PO. The PO, including any documents referenced in the PO or incorporated by reference, is the sole and exclusive agreement with respect to the matters discussed herein and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations, or conditions, whether oral or written, whether express or implied, with respect to such matters. Failure by PFT to enforce any of the terms, conditions, and limitations of the PO will not constitute a waiver of those terms, conditions, and limitations or a waiver of any other terms, conditions or limitations of the PO, and the failure of PFT to exercise any right (whether provided by any agreements governed by the terms and conditions of the PO, law, equity, or otherwise) arising from PFT’s default under the PO will not constitute a waiver of that right or any other rights.
 

Setoff. PFT shall be entitled to set off any amounts Seller owes PFT against any payment due to Seller, regardless of whether the need for setoff arises under this PO, any other PO, Seller’s indemnity obligations, third party claims, or any other claim(s) PFT may have against Seller.
 

Security. If PFT makes any advance or progress payment to Seller under this PO, upon PFT’s request, Seller will execute a security agreement and financing statement, in a form satisfactory to PFT, granting a security interest, effective in all states of fabrication or manufacture in the proceeds, raw materials, and Products which are sought to be, purchased, manufactured, or otherwise obtained pursuant to this PO.
 

Additional Terms. Seller is on notice that PFT may utilize the Products specified in this order in the transaction of business with the U.S. Government. Seller is therefore deemed to have assumed the obligation of compliance with Executive Order 11246. This order is subject to the requirements of the Equal Employment Opportunity clause as set forth in 41 CFR 60-1.4(a), 41 CFR 60-250.5, and 41 CFR 60-741.5.  The Seller and PFT shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). Those regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity, or national origin. Moreover, those regulations require that covered prime contractors and subcontractors take steps to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
 

Conflict Minerals. Supplier agrees to provide PFT information on the content of products purchased by PFT pursuant to this PO that utilize or contain the conflict minerals of tantalum, tin, tungsten, or gold as defined by Section 1502 of the Dodd-Frank Act, including information as to whether the conflict minerals originated from the Democratic Republic of Congo, Angola, Burundi, Central African Republic, the Republic of the Congo, Rwanda, South Sudan, Tanzania, Uganda or Zambia. Supplier agrees to cooperate and assist PFT in a timely manner with such requests, as well as keep PFT up to date on any changing information. Further, Supplier shall provide PFT reasonable notice before providing any products to PFT that include conflict minerals originating from the covered countries stated herein. Supplier shall indemnify and hold PFT harmless for all fines, penalties, expenses, or other losses sustained by PFT as a result of Supplier’s breach of this section.
 

Country of Origin. Seller agrees to provide the country of origin for each Good. In the event that the country of origin changes, Seller will immediately notify PFT with the updated information.
 

Code of Conduct. Seller affirms that it will meet the standards and requirements of PFT’s Supplier Code of Conduct, which is incorporated herein by reference, located at:
 

Miscellaneous. Neither the PO, nor any right to receive payment or other right hereunder, will be assignable or transferable by Seller without PFT’s prior written consent. Any assignment without such consent is voidable at PFT’s option. The PO will be governed by the law of New York, without regard to its choice of law principles. Seller expressly submits to the exclusive jurisdiction of the state or federal courts located in Nassau County, New York.  Seller waives any defense based upon lack of long-arm jurisdiction, forum non conveniens, or similar defense.  In the event of litigation pertaining to any matter covered by the PO, Seller agrees to waive any right that it may have to a jury trial of any or all issues that may be raised in such litigation. Nothing contained in the PO will be construed to limit or waive any rights of PFT under applicable United States federal, state, or local laws. Any provision of the PO held to be invalid, illegal or unenforceable will be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions thereof. Seller represents and warrants that it has both the authority and the capacity to enter into the PO.  In the event that PFT is required to retain counsel to protect and/or litigate its rights arising under this PO, Seller shall pay all reasonable attorneys’ fees and costs associated therewith