These Terms and Conditions (“Terms and Conditions”) are being delivered pursuant to the purchase order, attached hereto (the “Purchase Order”), of the customer, buyer or purchaser identified thereon (“Customer). The parties expressly agree that, subject to the provisions herein, these Terms and Conditions will be a complete, final, binding and enforceable expression of their rights and obligations with respect to the transaction contemplated by the Purchase Order and with respect to the products ordered thereunder (such products hereinafter the “Products”). The Purchase Order constitutes Customer’s official offer to purchase from Valbruna the Products described therein at the price described therein, subject to the limitations and composition of price described in these Terms and Conditions. When Valbruna delivers written notice of acceptance of the Purchase Order to Customer, together with these Terms and Conditions, the agreement of the parties relating to Customer’s purchase of the Products from Valbruna is effective, and a binding contract relating to the same is formed, which incorporates (1) the Purchase Order’s description of the Products, including the Standards and Specifications (as defined below), and the price thereof, subject to the provisions on pricing herein, and (2) these Terms and Conditions (such binding agreement and the specifically identified terms of the Purchase Order and Terms and Conditions included therein, the “Order”). Valbruna hereby rejects any and all other terms and provisions of the Purchase Order and any attachment thereto.

1. Prices; Taxes; Application of Payments; Payment Terms; Term Discounts.

Prices for the Products described in the Purchase Order represent Valbruna’s then-current standard prices as of the date the Purchase Order is sent and do not include shipping, transport or packing charges or alloy surcharges. All amounts invoiced by Valbruna and paid by Customer under the Agreement will be in United States currency. Prices under the Purchase Order do not include sales, use, excise, property or any other taxes arising out of or relating to the sale or use of the Products. Customer will pay such taxes and indemnify and hold Valbruna free and harmless from the imposition and payment of any such taxes, whether or not they are stated in the Purchase Order or any invoice for the Products delivered or shipped. Any increase in import taxes, custom duties, ocean or inland freight charges, marine or ware insurance premiums or government taxes of any kind, including but not limited to newly imposed taxes, shall be payable by Customer. Unless otherwise expressly indicated on the invoice for the Order, payment for Products under the Order shall be due in full within thirty (30) days of Valbruna’s transmission of an invoice for the applicable Order. In the event an amount owed under the Order by Customer is not paid when due, Customer will pay to Valbruna a late fee equal to the maximum amount permitted by applicable law on any and all amounts past due. Payments made by Customer to Valbruna under the Order will be applied first to any late fees or charges due under these Terms and Conditions, then, to any referenced outstanding invoice memorialized on such payment and, if none, to the outstanding invoice first issued by Valbruna to Customer. There shall be no payment term discount, cash discount period or other discount unless expressly indicated on the invoice for the Order. If the invoice for the Order expressly applies such a discount, the applicable discount period shall be computed from the date of shipment of the Products under the Order or issuance of an invoice, whichever occurs first. A discount under this section, if any, shall only apply to the purchase price of the Products as described above and shall not apply to freight, taxes, surcharges, or other charges in addition to Valbruna’s then current-standard price as of the date of the Purchase Order.

2. Delivery; Shipment; Title; Risk of Loss.

Unless otherwise expressly indicated on the invoice for the Order, prices included on the invoice, or otherwise applicable under the Order, do not include the costs of shipping, transport, insurance in transit, or packing. Customer will pay for freight, FOB Shipping Point (applicable Valbruna warehouse location), Freight Collect. All risk of loss, delay or damage shall pass, along with title, from Valbruna to Customer upon delivery of the Products to the common carrier, Customer’s agent or shipping agent, as the case may be, at Valbruna’s applicable warehouse location for the particular Order. Accordingly, all claims of loss for delay, damage or other issues with timely and proper transportation, shipment and delivery shall be filed with the applicable transportation agent. Notwithstanding any arrangements to pay freight, post, transportation or similar charges expressly indicated on the invoice, Valbruna’s delivery of the Products shall be complete when the same are turned over to the applicable common carrier or transportation agent at Valbruna’s applicable warehouse location, and Valbruna shall not be liable for any damage to the Products or delay in transit caused thereafter. Notwithstanding any other provision in the Order, delivery of an amount of Products with variation of less than ten percent (10%) of the amount ordered under the Purchase Order shall constitute full and complete performance and delivery of the amount ordered under the Purchase Order for purposes of the Order.

3. Warranties; Standards and Specifications; Inspection.

Valbruna’s sole warranty and representation under the Order is that the Products meet the standards and specifications, if any, set forth in the Purchase Order (the “Standards and Specifications”), subject to deviations within Valbruna’s standard operating procedures or practical testing or inspection, or other industry standards.


Assuming the Products are manufactured to the Standards and Specifications, Customer expressly assumes full and final responsibility for design of the Products and their suitability for the use to which they are ultimately applied, and Valbruna makes no warranties or representations with respect thereto and further disclaims all such warranties. Valbruna shall not be required to perform inspections of the Products unless expressly indicated in the Standards and Specifications on the applicable Purchase Order.

4. Customer’s Changes in Standards and Specifications.

If Customer desires to change the Standards and Specifications or the applicable order to which they apply after Valbruna’s transmission of the written acceptance of the Purchase Order, Customer shall send such request, consistent with Valbruna’s then current order process, and expressly indicate the order number to which it applies and the desired modifications. Valbruna may, in its sole discretion, elect to honor or deny such requested changes in the Standards and Specifications; provided, however, if Valbruna elects to honor the requested changes, to be effective, the same must be approved, in writing, by an authorized representative of Valbruna and memorialized in a revised Purchase Order; provided, further, that if such changes affect the cost or time required for Valbruna to perform under the original Order, Customer shall pay to Valbruna, in addition to the agreed upon price on the original Order, all such additional costs incurred by Valbruna for performance under the revised Purchase Order and Valbruna shall have such additional time as is reasonably required for performance under the revised Purchase Order. Nothing in this section shall be construed to require Valbruna to honor a request to change or modify the Standards or Specifications included in the Order or an order to which they apply.

5. Acceptance; Rejection.

Customer will have thirty (30) days from the date Customer, or its designee, removes the Products from the shipping point (the “Inspection Period”) to inspect the Products and confirm that the Products comply with the Standards and Specifications set forth in the applicable Purchase Order, if any. If Customer reasonably determines the Products do not comply with the Standards and Specifications, Customer shall, within the Inspection Period, provide written notice to Valbruna of such allegedly nonconforming Products with a reasonably specific explanation of the same and samples thereof (such written notice coupled with samples, shall be referred to as a “Rejection”). In the event Customer timely provides Valbruna a Rejection, Valbruna will inspect the allegedly nonconforming Products. If Valbruna, in its sole discretion, determines that the Products are deficient, Valbruna will, at its expense and in its sole discretion, either cure such nonconformity or replace the rejected Products with Products that meet the Standards and Specifications. Customer expressly acknowledges that its sole remedy in the event Products fail to meet the Standards and Specifications provided in the Purchase Order is repair or replacement of the Products, either of which Valbruna may elect, in its sole discretion. Any Product that is not Rejected by Customer within the Inspection Period will be deemed to have been accepted by Customer and to conform with the Standards and Specifications. Once accepted, Customer waives its right to claim that the Products are nonconforming or otherwise do not comply with the Standards and Specifications set forth in the Purchase Order. Valbruna and Customer will negotiate any disputes relating to Rejections in good faith before proceeding to litigation.

6. Intellectual Property.

Title to and the right of immediate possession of drawings, software, designs, patterns, tools, jigs, dyes, equipment or other material produced by Valbruna for the purpose of producing the Products shall be and remain the property of Valbruna. Copyrights, trademarks, patents, trade secrets and other intellectual property resulting from the production of the Products, including illustrations, drawings, calculations and other related documents prepared by Valbruna in connection with production of the Products, shall be and remain the property of Valbruna.

7. Indemnification.

Neither Valbruna nor its agents, affiliates, successors, assigns, representatives, employees, officers or directors (collectively, hereafter the “Indemnified Parties”) will be liable to Customer, or to any other party, for any loss, damage, injuries or expenses of any kind or nature caused directly or indirectly by the products of Customer incorporating the Products. As long as the Products conform with or are deemed to have conformed with the Standards and Specifications, Customer will indemnify, defend and hold harmless the Indemnified Parties for causes of actions relating to the allegations of defects of Customer’s products or the Products, whether or not the same are based on allegations that the Products did not meet the Standards and Specifications. Customer agrees to further indemnify, defend and hold harmless the Indemnified Parties, including Valbruna (1) from any claim, proceeding, allegation or cause of action that Products produced according to the Standards and Specifications or other instructions of Customer or products of Customer incorporating the same infringe on any patent, copyright, trademark or other intellectual property right of Customer or any third party, and (2) against recoveries beyond the limitations allowed under the Order . In recognition of the foregoing, Customer shall include in any contract for resale of the Products or products incorporating the Products the limitations on recovery allowable against the Indemnified Parties under the Order. Customer shall indemnify, defend and hold harmless the Indemnified Parties, including Valbruna for any damage to each of them resulting from Customer’s failure to include such contractual limitations on recovery against the Indemnified Parties, including Valbruna in its contracts for resale of the Products or products incorporating the Products.

8. Security Interest.

As security for the full and prompt payment and performance when due of all payments of Customer to Valbruna under the Order, Customer hereby grants to Valbruna a security interest in all Products supplied to Customer, whether under this Order or otherwise. Customer will execute any notice or other documentation as may be reasonably requested by Valbruna at any time in order to accomplish the intentions of this Section. Customer’s obligation to execute notice or other documentation under this section includes, but is not limited to, an obligation to execute any and all necessary financing statements to perfect the security interest herein granted to Valbruna as well as its ownership interest, if any, herein evidenced in order to perfect Valbruna’s interest in the Products and its rights to payment and performance by Customer under the Order. Provided, however, Valbruna will pay all expenses for the preparation and filing with the appropriate public office of any documentation under this Section.

9. Remedies.

Notwithstanding anything in the Purchase Order or the Order to the contrary, in no event will Valbruna be liable to Customer for special, incidental, indirect or consequential damages, including, to the extent permitted by law, strict liability in tort or warranty. In no event shall Valbruna’s liability under the Order or the Purchase Order exceed the price paid by Customer to Valbruna for the Products (and excluding interest, fees or other penalties due hereunder) under the Order. The rights and remedies of the parties under the Order are cumulative and not alternative. In the event any proceeding, cause of action or claim is brought in respect of the Order, or any of the documents referred to in the Order or these Terms and Conditions, if Valbruna is the prevailing party, Valbruna will be entitled to recover its reasonable attorneys’ fees and other costs incurred in such proceeding, cause of action or claim, in addition to any other relief to which it may be entitled.

10. Force Majeure.

Any delays in or failure of performance under the Order by either party hereto, except delays or failures in the payment of monies due, will not constitute default hereunder or give rise to any claims for damages if and to the extent such delays in or failures of performance are caused by events of “Force Majeure”. For the purposes of the Order, Force Majeure events will include, but will not be limited to acts of God, order or request of any government authority, acts of war, riots, rebellion or sabotage, fires, floods, blizzards, earthquakes or other physical disasters, strikes or other industrial actions, breakage or failure of plant machinery or equipment and any other causes which are not within the control of either party and which, by the exercise of reasonable diligence, such party is unable to prevent; provided, however, reasonable diligence under this section shall not require Valbruna to spend funds in addition to those normally incurred by Valbruna in the ordinary course of business to meet an identical order or maintain its equipment or facilities in accordance with industry standards.

11. Third Parties.

No party may assign any of its rights or delegate any of its obligations under the Order without the prior written consent of the other parties; provided, however, nothing in this Section shall be construed to prohibit Valbruna from sourcing its materials or the Products from its affiliates or other reputable providers. Any purported assignment of rights or delegation of obligations in violation of this section will be void. Subject to the foregoing, the Order will apply to, be binding in all respects upon, and inure to the benefit of the heirs, executors, administrators, legal representatives, successors, and permitted assigns of the parties. Other than Valbruna and Customer, no party will have any legal or equitable right, remedy, or claim under or with respect to the Order. There are no third-party beneficiaries of the Order. The Order may be amended or terminated, and any provision of these Terms and Conditions, may be waived, without the consent of any party who is not a party to the Agreement.

12. Rules of Construction.

The Order was negotiated by the parties hereto with the benefit of legal representation, and any rule of construction or interpretation otherwise requiring or preferring the Order to be construed or interpreted against any party as having been drafted by it will not apply to any construction or interpretation of the Order. Similarly, the headings contained in the Purchase Order and the Order are for convenience of reference only, shall not be deemed to be part of either, and will not be referred to in connection with the construction or interpretation of either. In computing a time period prescribed in the Order, the day of the act or event shall not be counted. All subsequent days, including intervening weekend days and holidays, shall be counted in the period. The last day of the period so computed is to be included unless the Order expressly states otherwise or it is a weekend day or a legal holiday under Indiana law. If the last day is a legal holiday under Indiana law or a weekend, the period is to be extended to the next day that is not a weekend day or legal holiday. With respect to all dates and time periods regarding payment of monies due set forth or referred to in the Order, time is of the essence.

13. Severability; Waiver.

If any provision of the Order is held invalid or unenforceable by any court of competent jurisdiction, the other provisions of the Order will remain in full force and effect. Any provision of the Order held invalid or unenforceable only in part or degree will remain in full force and effect to the extent not held invalid or unenforceable. Neither any failure nor any delay by any party in exercising any right, power, or privilege under the Order or any of the documents referred to in either agreement will operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege will preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege. To the maximum extent permitted by applicable law, (a) no claim or right arising out of the Order can be waived by a party, in whole or in part, unless made in a writing signed by such party; (b) a waiver given by a party will only be applicable to the specific instance for which it is given; and (c) no notice to or demand on a party will (i) waive or otherwise affect any obligation of that party or (ii) affect the right of the party giving such notice or demand to take further action without notice or demand as provided in the Order.

14. Counterparts and Electronic Signatures.

The Order may be executed in one or more counterparts, each of which will be deemed to be an original copy and all of which, when taken together, will be deemed to constitute one and the same agreement or document, and will be effective when counterparts have been signed by each of the parties and delivered to the other parties. A manual signature on the Purchase Order, these Terms and Conditions, or other documents to be delivered pursuant to either, an image of which shall have been transmitted electronically, will constitute an original signature for all purposes. The delivery of copies of the Purchase Order, the Terms and Conditions, or other documents to be delivered pursuant to this Agreement, including executed signature pages where required, by electronic transmission will constitute effective delivery of this Agreement or such other document for all purposes. Notwithstanding the foregoing, Uniform Commercial Code rules governing effective signatures or demonstration of sufficient intent to be bound by an agreement will govern the Order.

15. Further Assurances; Modification.

The parties will (a) execute and deliver to each other such other documents and (b) do such other acts and things as a party may reasonably request for the purpose of carrying out the intent of the Order, and the contemplated transactions contemplated herein and therein, and the documents to be delivered pursuant to the Order. Except as provided in section 4, the Order may only be amended, supplemented, or otherwise modified by a writing expressly stating such intent to modify and executed by all the parties thereto.

16. Relationship of the Parties.

The parties to the Order are independent contractors, and nothing in the Order, or in the performance thereof shall be construed to place them in the relationship of partners or joint venturers or to make one an agent of the other. Neither party, including its agents and employees, is authorized to make any warranty, contract or representation on behalf of the other, unless otherwise specifically authorized by the terms of the Order or otherwise in writing, and signed by an authorized representatives of both parties hereto.

17. Notices.

All notices and other communications required or permitted by the Order shall be in writing and will be effective, and any applicable time period shall commence, when delivered, by hand, certified mail, return receipt requested, or by a nationally recognized overnight courier service (costs prepaid), to the following addresses: (1) in the case of Customer, to the address listed on the Purchase Order, or, if none, to the address on file for service of process with the applicable state agency in the Customer’s state of domicile, or to other such address as Customer shall provide by notice to Valbruna; (2) in the case of Valbruna, to the address listed in the written acceptance of the Purchase Order, or if none, 2400 West Taylor Street, Fort Wayne, Indiana 46801, or such other address as Valbruna shall provide by notice to Customer.

18. Governing Law; Jurisdiction; Service of Process; Waiver of Jury Trial.

All matters relating to or arising out of the Purchase Order, these Terms and Conditions, the Order, and the rights and obligations of the parties relating to the Products will be governed by and construed and interpreted under the laws of the State of Indiana without regard to conflicts of laws principles that would require the application of any other law. Except as otherwise provided in the Order, any proceeding, claim or cause of action arising out of or relating to the Order or the rights and obligations of the parties relating to the Products, or any contemplated transaction herein shall be brought in the courts of the State of Indiana, County of Allen, or, if it has or can acquire jurisdiction, in the United States District Court for the Northern District of Indiana located therein, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of such proceeding shall be heard and determined only in any such court, and agrees not to bring any proceeding arising out of or relating to the Order, or any of the contemplated transaction in any other court. Each party acknowledges and agrees that this section constitutes a voluntary and bargained-for agreement between the parties. Process in any proceeding referred to in the first sentence of this Section may be served on any party anywhere in the world, including by sending or delivering a copy of the process to the party to be served at the address and in the manner provided for the giving of notices in these Terms and Conditions. Nothing in this section will affect the right of any party to serve legal process in any other manner permitted by law or at equity. Each party knowingly, willingly, voluntarily and intentionally waives its right to trial by jury in any proceeding arising out of or relating to the Purchase Order, Order, the Terms and Conditions, or any transaction contemplated herein, whether sounding in contract, tort, or otherwise.

19. Entire Agreement; Integration.

Except as the Purchase Order relates the description of the Products and the price thereof, but subject to the further provisions relating to the price of the Products described in these Terms and Conditions, the Order supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter (including any letter of intent or memorandum of understanding) and constitute a complete and exclusive statement of the terms of the agreement between the parties with respect to the subject matter hereto. If any provision of any Purchase Order or other communication, whether written or oral, is inconsistent or contradicts any provision in the Order, the terms of the Order shall control.

20. Sanctions Compliance.

Seller is a United States company selling U.S.-origin goods. Consequently, both this transaction and the product(s) involved are subject to U.S. economic sanctions laws, regulations, and executive orders enforced by the U.S. Treasury Department’s Office of Foreign Assets Control (OFAC). Seller is participating in this transaction with the good faith understanding that both the sale and the product’s intended use are compliant with all applicable sanctions on specified destinations, parties, and activities. Responsibility for sanctions compliance in subsequent dealings involving this product(s) rests solely with Purchaser. In making Purchaser aware of this fact, Seller offers Purchaser no assistance in doing its duty to comply, and assumes none of the corresponding burden.