OFFER: A Purchase Order (“Order”) is Sencore, Inc.’s (“Sencore”) offer to buy, and may be modified or cancelled by Sencore at any time prior to acceptance by You (the “Vendor”) without any liability or cost to Sencore. All previous offers by Vendor are hereby rejected. The offer to purchase may expire unless accepted by Vendor within seven (7) days of issue. The Order is not binding upon Sencore unless and until Sencore receives Vendor’s written acceptance. Unless otherwise stated on the face of the purchase order, Vendor must accept the Order in writing, which may be by fax, email, first class mail, or recognized air courier service.

ACCEPTANCE: By accepting the Order, Vendor agrees to all of the terms and conditions on the face of the purchase order and in these Purchase Order Terms and Conditions. Any provisions in Vendor’s quotation forms, sales forms, acknowledgements, invoices, communications or the like which are inconsistent with the provisions of the Order, or additional or different terms inserted in the Order by Vendor, or deletions therefrom, shall be of no force or effect. Acceptance of materials, work or services, payment or any inaction by Sencore shall not constitute Sencore’s consent to or acceptance of any such terms. Estimates or forecasts furnished by Sencore shall not constitute commitments. Upon acceptance, the terms contained in the Order shall constitute the entire agreement between Vendor and Sencore with respect to the subject matter of the Order, superseding all contemporaneous oral agreements and prior oral and written quotations, communications, and/or understandings of the parties, and may not be modified or rescinded except by a writing signed by Vendor and Sencore. To the extent that terms contained on the face of the purchase order are inconsistent with the terms and conditions contained herein, the terms contained on the face of the purchase order shall control.

TERMINATION: Sencore reserves the right to cancel the Order or any part thereof for cause in the event Vendor (1) fails to make full delivery at the time, place and price specified in the Order, (2) breaches or fails to perform any of its obligations in any material respect, (3) becomes insolvent or proceedings are instituted by or against Vendor under any provision of any federal or state bankruptcy or insolvency law or (4) ceases to operate in the normal course of business. Vendor agrees not to charge or assess any form of cancellation charges or restocking fees upon Sencore due to the cancellation of the Order. Vendor agrees not to require Sencore to purchase any canceled items not completed and/or items ready to be delivered at the time written notice of cancellation is mailed to Vendor. No claims shall be made for anticipatory profits or other damages resulting from cancellation of the Order. Where such cancellation is through the fault of Vendor, Sencore, at its option, and without waiving any of its rights to recover damages or losses sustained, may accept the completed portion of the Order and pay for the same at the contract price, or may place all or any part of the Order elsewhere and charge Vendor the difference in the cost thereof to Sencore. Vendor further agrees not to demand or assess any cancellation charges of any form and to reimburse Sencore for any shipping or freight expenses billed or paid by Sencore if goods are not acceptable and must be returned to Vendor.

PACKAGING AND TRANSPORTATION: Unless otherwise specified, goods are purchased F.O.B. destination. Deliveries shall be made as specified, without charge for boxing, crating, storage or any other charges unless otherwise specified. Material shall be suitably packed to assure against damage from transportation and weather and to secure lowest transportation costs in accordance with requirements of common carriers. Sencore’s order numbers and symbols must be plainly marked on all invoices, packages, bills of lading and shipping orders. Packing list shall accompany each box or package shipped showing Sencore’s Order number and symbol, item number and description of materials. Sencore’s count or weight shall be final and conclusive on shipments not accompanied by packing lists. Shipping receipts or bills of lading shall be sent to Sencore on date material is shipped. Invoices shall be mailed in original only to the attention of Sencore’s Accounting Department immediately after each shipment. Extra freight and/or cartage charges resulting from routing differing from Sencore’s instruction will be charged to Vendor’s account. No substitutions of goods or services shall be made without written authorization of Sencore. Vendor shall make no package quantity change on any Order without written authorization of Sencore.  Split shipments will not be accepted unless specified in the Order.  If Vendor delivers any products more than five (5) days in advance of the scheduled delivery date, Sencore may either return such products at Vendor’s expense for subsequent delivery on the original delivery date or retain such products and postpone payment until it would have been due if Vendor had delivered the products as scheduled. TIME IS OF THE ESSENCE WITH RESPECT TO ALL DELIVERIES TO BE MADE HEREUNDER.  Without limiting any of Sencore’s rights and remedies hereunder, at law or in equity, if Vendor is late in meeting the specified delivery date, Sencore may require that Vendor ship the products via expedited means bearing the incremental premium shipping charges and other related costs, or Sencore may cancel all or any portion of the Order without liability to Sencore.  Vendor shall deliver the exact quantity of goods specified in the Order on the delivery dates specified in the Order.  If Vendor delivers less than the specified amount, Vendor shall correct the shortage within a two day period.  If Vendor fails to correct such shortage within this period, without limiting any of Sencore’s rights and remedies hereunder, at law or in equity, Sencore may cancel or return all or part of the Order without cost or liability to Sencore.  If Vendor delivers more than the quantity ordered, Sencore may return any excess goods at Vendor’s risk and expense. 

INSPECTION:  Sencore shall inspect all goods or services delivered hereunder and Sencore shall reject any non-conforming goods or services within thirty (30) days of delivery.  Sencore shall give written notice to Vendor of the rejection of any non-conforming goods or services.  If any goods are rejected, in whole or in part, by Sencore by reason of Vendor’s failure to comply with any terms, conditions or specifications contained herein or in any Order, Sencore, after so notifying Vendor may, in its discretion: (1) return the rejected portion of such goods to Vendor at Vendor’s expense for full credit;  (2) return the rejected portion of such goods to Vendor at Vendor’s expense and require correction or replacement within five (5) business days; (3) hold the rejected portion for such disposal as Vendor shall indicate; or (4) reject the entire shipment of goods and cancel the Order. 

QUALITY:  The quality of the goods or services provided pursuant to an Order shall be no less than that customarily supplied for like goods or services and shall comply with all additional quality requirements specified in the Order or otherwise agreed upon in writing by the parties.  Quality practices shall be in accordance with a documented control system that addresses applicable business practices contained in ISO 9001 or equivalent.

WARRANTY:  Vendor warrants that the goods and services provided pursuant to an Order shall be new and unused and be free from defects in material, workmanship, design and title for a minimum period of two (2) years from the delivery date.  Vendor further warrants that all goods or services provided pursuant to an Order shall (i) conform to the specifications, drawings, samples and other description and requirements furnished to, or adopted by, Sencore, (ii) be merchantable, (iii) not infringe any intellectual property rights of any third party including, without limitation, any patent, trademark, copyright, trade secret, mask work, moral right, or other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise.  Vendor represents and warrants that it has not received any notice or claim from a third party alleging that any goods or services provided under any Order, or any portion thereof, infringes any intellectual property rights of any third party.

INVOICING AND PAYMENT: Vendor shall (1) render single invoices, or as otherwise specified in the Order, showing Order number, through routing and weight, (2) render separate invoices for each shipment within twenty-four hours after shipment and (3) mail invoices to the address shown on the Order.

Copies of bills of lading and shipping notices are to accompany all product/materials. Vendor agrees to follow the shipping, invoicing and billing instructions issued by Sencore. The cost price set forth in each Order includes the cost of manufacturing, packaging, labeling and shipping unless otherwise specified in such Order. If prepayment of transportation charges is authorized, Vendor shall include the transportation charges from the F.O.B. point to the destination as a separate line item on the invoice stating the name of the carrier used and method of shipment. No minimum billing charges are permitted unless expressly authorized in the Order. 

Delays in receiving invoices, and also errors and omissions on such invoices will be considered just cause for withholding payment without losing any applicable discount privileges. Payment will be made on undisputed invoices or statements net 60 days from date of invoice. Notwithstanding the foregoing, payment will be due only upon Vendor’s full and faithful performance in accordance with the terms and conditions of the Order. Payment may be made by business check.

CONFIDENTIAL INFORMATION: Vendor shall consider all information furnished by Sencore including, without limitation any specifications, drawings, sketches, models, samples, tools, computer or other apparatus programs, technical or business information or data to be confidential and shall not disclose any such information to any other person, or use such information itself for any purpose other than fulfilling the Order, without first obtaining the written consent of Sencore which Sencore may withhold in its sole discretion. Vendor shall not in any manner advertise or publish the fact that Vendor has furnished or contracted to furnish to Sencore the goods or services herein mentioned, nor shall any information relating to the Order be disclosed without Sencore’s written permission. Vendor shall make no use of any identification of Sencore, or its or their affiliated companies, in its advertising or promotional efforts in reference to activities undertaken by Vendor under the Order without Sencore’s prior written consent, which may be withheld in Sencore’s sole discretion. The term “identification” includes any trade name, trademark, service mark, insignia, symbol, or any simulation thereof, and any code, drawing, specification, or evidence of Sencore’s inspection. Vendor agrees to remove any such identification prior to any sale, use or disposition of material or equipment rejected or not purchased by Sencore, and shall indemnify Sencore and their affiliated companies against any claim arising out of Vendor’s failure to do so.

ASSIGNMENT AND SUBCONTRACTING: Vendor may not assign the Order, or any portion thereof, except that Vendor may, upon the prior written consent of Sencore, assign claims for monies due or to become due hereunder provided in such event Vendor shall supply Sencore promptly with two copies of any such assignment, and provided further, that payment to any assignee of any claim shall be subject to set off or recoupment for any present or future claim or claims where Sencore may have against Vendor. With respect to the purchase of goods, Vendor represents and warrants that it is the manufacturer, or an authorized distributor, of all goods delivered pursuant to the Order.  Vendor agrees not to subcontract its performance, or any part thereof, under the Order without Sencore’s prior written approval which Sencore may withhold in its sole discretion.  Vendor must receive written consent from Sencore prior to disposing of any Sencore-owned asset such as tooling.

PURCHASER OWNED OR FURNISHED MATERIAL: Vendor assumes complete liability for any Sencore-owned or Sencore-furnished tooling, articles, and materials, unless furnished to Vendor on a charge basis, in connection with the Order, and Vendor agrees to pay for all such tooling, articles and materials spoiled by it or not otherwise satisfactorily accounted for. Title to the aforesaid Sencore-owned or Sencore-furnished tooling, articles or materials shall at all times remain in Sencore. Vendor is and shall be an Express Trustee for the benefit of Sencore of all such tooling, articles and materials.

COMPLIANCE WITH APPLICABLE LAWS: Vendor will, at its own expense, comply with all applicable federal, state, local and foreign laws, ordinances, rules, regulations and codes, in effect at the time of its performance under the Order. By accepting the Order Vendor certifies that the materials and articles ordered thereunder will be manufactured, produced and delivered in compliance with all applicable federal, state, local and foreign laws, ordinances, rules, regulations and codes including, without limitation, the requirements of the U.S. Export Administration Act as amended, the Fair Labor Standards Act of 1938 as amended, and lawful regulations and orders of the Administration of the Wage and Hour Division issued under Section 14 thereof, the Labor Management Relations Act, the Toxic Substance Control Act, and European and Chinese restrictions on hazardous substances (European and China RoHS). 

PURCHASE FOR RESALE: Unless otherwise specified, vendor acknowledges that the goods and services purchased by Sencore are for resale, and therefore, Vendor will not charge or collect sales tax from Sencore. Vendor acknowledges that it has been provided all necessary resale certificates. Vendor further acknowledges and agrees that all terms and conditions contained herein and on the face of the purchase order, shall be fully enforceable by the entity to which Sencore resells the goods and services purchased from Vendor as if said entity were the Sencore herein.

PATENT RIGHTS: When payment is made for experimental, developmental, or research work, as such, to be performed in accordance with special requirements of the Sencore, Vendor agrees to disclose and on request to assign to Sencore, each invention resulting therefrom. All proprietary rights embodied in design, tools, patterns, drawings, information, equipment, and schematics supplied by Sencore under the Order are reserved and their use is restricted to the work to be performed hereunder. Vendor shall not disclose any details connected with the Order to any third party except as may be required to insure performance, without first obtaining the written consent of Sencore.

PRICES: The Order must not be filled at higher prices than shown on the Order. Vendor warrants prices herein are as low as any (net) price given by Vendor to any other customer for like material. Vendor will give Sencore benefit of any price declines prior to date of shipment.

RISK OF LOSS: Sencore shall not be liable nor obligated to pay for goods shipped until received at the “Ship To” location of Sencore indicated on the face hereof and in good condition. Sencore shall have the right to determine the “good” condition of the merchandise or parts by reserving the right to inspect the goods at the time and place of delivery before accepting them.

INDEMNIFICATION: Vendor shall indemnify, defend and hold harmless Sencore and its affiliates, and its and their respective officers, directors, employees, agents and shareholders, and its and their respective assigns, heirs, successors and legal representatives from and against, any and all costs, losses, liabilities, damages, lawsuits, judgments, claims, actions, penalties, fines and expenses (including, without limitation, interest, penalties, reasonable attorneys’ fees and all monies paid in the investigation, defense or settlement of any or all of the foregoing)  which in whole or in part, directly or indirectly: (i) allege that any product or service delivered or performed pursuant to an Order, or any part thereof, or its use, import, export, support, sale or distribution infringe, misappropriate, or violate any intellectual property rights of any third party; (ii) allege that any product or service delivered or performed pursuant to an Order, or any part thereof, has caused personal injury or damage to tangible property; or (iii) arise from a breach of Vendor’s representations, warranties or obligations hereunder.

REMEDIES: The rights and remedies herein provided in case of default or breach by Vendor of the Order are cumulative and shall not affect in any manner any other remedies that Sencore may have by reason of such default or breach by Vendor. The exercise by Sencore of any right or remedy herein provided shall be without prejudice to Sencore’s right to exercise any other right or remedy provided herein, at law, or in equity.

DEDUCTIONS AND SETOFF: Any sums payable to Vendor shall be subject to all claims and defenses of Sencore, whether arising from this or any other transaction or occurrence, and Sencore may setoff and deduct against any such sums, all present and future indebtedness of Vendor to Sencore. Sencore shall provide a copy of the deduction taken by Sencore against Vendor’s account as a result of any returns or adjustments. Vendor shall be deemed to have accepted each such deduction unless Vendor, within ninety (90) days following receipt of the deduction voucher, notifies Sencore in writing as to why deductions should not be made and provides documentation for the reasons given.

FORCE MAJEURE: Neither party shall be liable to the other party for any delay or non-performance by reason of act of God, fire, explosion, flood, windstorm, earthquake, trade embargoes, governmental regulations, war, civil unrest, or any other cause beyond such party’s reasonable control (a “Force Majeure Event”). The party whose performance is affected will use commercially reasonable efforts to develop a mutually acceptable work around plan in an attempt to minimize the impact of a Force Majeure Event. If any force majeure condition occurs, the party delayed or unable to perform shall give immediate notice to the other party, stating the nature of the force majeure condition and any action being taken to avoid or minimize its effect, and the party affected by the other’s delay or inability to perform may elect to: (1) suspend the Order for the duration of the force majeure condition and (i) at its option buy, sell, obtain or furnish elsewhere material or services to be bought, sold, obtained or furnished under the Order (unless such sale or furnishing is prohibited under the Order) and deduct from any commitment the quantity bought, sold, obtained or furnished or for which commitments have been made elsewhere and (ii) once the force majeure condition ceases, resume performance under the Order with an option in the affected party to extend the period of the Order up to the length of time the force majeure condition endured and/or (2) when the delay or non-performance continues for a period of at least fifteen (15) days, terminate, at no charge, the Order or the part of it relating to material not already shipped, or services not already performed. Unless written notice is given within forty-five (45) days after the affected party is notified of the force majeure condition, (1) shall be deemed selected.

ATTORNEY’S FEES: In the event of any suit or action arising out of, from or as the result of or predicated upon the Order or any provision thereof, the prevailing party shall be entitled to recover its costs, expenses and reasonable attorney fees, both at trial and on appeal, in addition to all other sums allowed by law.

CHOICE OF LAW AND JURISDICTION: The Order and the rights and obligations of the parties hereto, including all disputes and claims, whether arising in contract, tort or under statute, shall be governed by, interpreted under and enforced in accordance with the laws of the State of South Dakota, United States of America without giving any effect to its conflict of law provisions.  Any and all disputes arising out of, or in connection with the Order and/or the relationship between the parties shall be litigated solely and exclusively before the United States District Court of South Dakota.  The parties consent to the in personam jurisdiction of said court for the purposes of any such litigation, and waive, fully and completely, any right to dismiss and/or transfer any action pursuant to 28 U.S.C.S. 1404 or 1406 (or any successor statute).  In the event the United States District Court for the District of South Dakota does not have subject matter jurisdiction of said matter, then such matter shall be litigated solely and exclusively before the appropriate state court of competent jurisdiction located in Sioux Falls, South Dakota, USA.

AUDIT: Vendor shall maintain at its principal place of business complete and accurate books and records regarding its performance of its obligations under the Order, including, but not limited to: (i) financial records; and (ii) shipping information and records. Sencore shall have the right, upon one (1) week prior written notice, to review, audit and make copies of Vendor’s books and records for the purpose of determining Vendor’s compliance with its duties and obligations under the Order. Sencore shall be entitled to conduct an audit regardless of the existence of any claim, dispute, controversy, mediation, arbitration or litigation between the parties. Any audit conducted by Sencore shall be conducted by Sencore or its representative(s) at Vendor’s offices during normal business hours. If an audit reveals that Vendor has miscalculated any item bearing upon amounts paid to Vendor resulting in an overpayment by Sencore, Vendor agrees to: (i) repay to Sencore the amount of any overpayment made together with interest thereon at 18% per annum or the highest rate allowed by law computed from the date of the overpayment; and (ii) pay all reasonable costs and expenses, including reasonable attorney’s fees and accountants fees incurred by Sencore in connection with its audit and with enforcing the collection of such amounts.

WAIVER:  The failure of either party to insist upon strict performance of any provision of the Order shall not be construed as a waiver of any subsequent breach of the same or similar nature. 

INDEPENDENT CONTRACTOR:   The relationship of the parties hereto is and at all times shall remain one of independent contractors.  Neither party is in any way a partner, joint venturer, agent, employee or legal representative of the other for any purpose whatsoever, or has any legal right or authority to make any representation, promise or agreement in the name of or for the account of the other or any affiliate of the other