1. Acceptance of Contract. Wayne Water Systems (“Buyer”) shall not be bound by this Order until seller (“Seller”) executes and returns to Buyer the acknowledgment copy of this Order. This Order expressly limits acceptance to the terms and conditions stated herein and any additional or different terms proposed by Seller, whether prior or subsequent to this Order, are rejected unless expressly agreed to in writing by Buyer. No contract shall exist except as provided herein.


  1. Amendments. The parties agree that this Order, including the terms and conditions on the face and reverse side together with any documents attached or incorporated by reference, contains the complete and final contract between Buyer and Seller and that no agreement or understanding to modify this contract shall be binding upon Buyer unless in writing and signed by Buyer’s authorized representative. All specifications, drawings, and data submitted to Seller with this Order or referred to by this Order are incorporated and made a part of this contract.


  1. Pricing and Invoices. The prices in this Order include all direct, indirect and incidental charges related to the sale and delivery of goods or the performance of services, including but not limited to packaging, crating, storage, agent and brokerage fees, insurance costs, freight shipping charges, document fees, duties and charges of any kind. Invoices will be payable upon the terms set forth in the Order.
  1. Taxes. Except as may otherwise be provided in this Order, the contract price includes all applicable federal, state, and local taxes in effect on the date of this Order. In case of new taxes or increased rates or repeal of taxes or the reduction of rates, the contract order price shall be adjusted accordingly by Buyer in writing before Seller proceeds with such change.  Price increases shall not be binding on Buyer unless evidenced by a purchase order change notice or revision issued and signed by Buyer.


  1. Delivery. Time is of the essence. If delivery of goods is not made in the quantities or at the time specified, or rendering of services is not completed at the time specified, Buyer reserves the right, without liability and in addition to its other rights and remedies, to take either or both of the following actions:  (a) direct expedited routing at Seller’s expense; and/or (b) terminate this contract as to goods not yet shipped or services not yet rendered, and to purchase substitute goods or services elsewhere and charge Seller with any loss or incremental expense incurred.


Seller shall be liable for excess transportation charges, delays or claims resulting from Seller’s deviation from Buyer’s routing instructions.  Neither party shall be liable for excess costs of deliveries or defaults due to causes beyond its control and without its fault or negligence, provided, however, that when Seller has reason to believe that deliveries will not be made as scheduled, written notice setting forth the cause of the anticipated delay must be given immediately to Buyer.  If Seller’s delay or default is caused by the delay or default of a subcontractor, such delay or default shall be excusable only if it arose out of causes beyond the control of both Seller and subcontractor and without the fault or negligence of either of them and the goods to be furnished or services to be rendered were not obtainable from other sources in sufficient time to permit Seller to meet the required delivery or performance schedule.


Buyer will have no liability for payment for goods delivered to Buyer which are in excess of quantities specified in this contract and delivery schedules, or which are delivered in advance of Buyer’s delivery schedule or for all transportation charges therefore.  Buyer will not be liable for any material or production cost incurred in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedules.



  1. Inspection and Acceptance. Payment for any goods under this contract shall not constitute acceptance thereof. All goods purchased hereunder are subject to inspection at Buyer’s destination, and Buyer reserves the right to reject and refuse acceptance of goods, or to return goods already accepted, which are not in accordance with this contract or with Seller’s warranties (express or implied). Goods not accepted will be returned to Seller for full credit, repair or replacement at Buyer’s option and at Seller’s risk and expense, including transportation charges both ways. Such credit, repair or replacement shall occur within a commercially reasonable time from the Seller’s receipt of the returned goods. No replacement of rejected goods shall be made unless specified by Buyer in writing.


Neither Buyer’s inspection of nor failure to inspect shall relieve Seller of any obligations hereunder. Acceptance of any part of the goods shall not bind Buyer to accept, nor constitute a waiver of, Buyer’s right to cancel or return future shipments, nor deprive it of the right to make any claim for damages, including incidental or consequential loss or damage incurred by Buyer.  Such rights shall be in addition to any other remedies provided by law.


  1. Freight Charges, Packing, Drayage and Containers. Unless otherwise expressly stated on the face of this Order, all goods shall be delivered F.O.B. destination. No charges for packing, drayage, or containers will be allowed unless specified on the face of this Order. Seller shall be liable for damage caused by improper boxing, crating, or packing.


  1. Title/Risk of Loss. Title and risk of loss shall not pass to Buyer until delivery and set-up of the goods at the final destination in accordance with the provisions of this Order. Buyer shall not be responsible for any damage to goods occurring during shipment, delivery or set-up.


  1. Seller’s Warranties. Seller hereby warrants that the whole of the goods furnished hereunder shall be free of defects in material and workmanship; of merchantable quality; fit for Buyer’s purposes; free and clear of all liens, encumbrances, security interests and/or other claims; free of infringement or violations of any copyright, trademark or other intellectual property rights; and that they shall conform with Buyer’s instructions, specifications, drawings and data. Seller hereby further warrants that the whole of the goods furnished hereunder shall conform to all representations, affirmations, promises, descriptions, samples or models forming the basis of this contract. These warranties shall run to Buyer, its successors, assigns and customers and the users of its products.  Said warranties shall be in addition to any warranties of additional scope given by Seller to Buyer.  NONE OF SAID WARRANTIES AND NO OTHER IMPLIED OR EXPRESS WARRANTIES SHALL BE DEEMED DISCLAIMED OR EXCLUDED UNLESS EVIDENCED BY A PURCHASE ORDER CHANGE NOTICE OR A REVISION ISSUED AND SIGNED BY BUYER.  Seller agrees to replace or correct defects in any goods or services not conforming to the foregoing warranties within a commercially reasonable time, at Seller’s risk and expense, when notified of such non-conformity by Buyer.  In the event of failure by Seller to correct defects in or replace non-conforming goods or services in the required time frame, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the costs incurred by Buyer thereby. Inspection, test, acceptance or use of the goods furnished hereunder shall not affect Seller’s obligation under these warranties and such warranties shall survive inspection, test, acceptance and use of the goods.


  1. Property of Buyer. Unless otherwise provided in this Order or agreed to in writing, property of every description, including but not limited to all tooling, tools, equipment and material furnished or made available to Seller, title to which is in Buyer, and any replacement thereof, shall be and remain the property of Buyer. Seller shall not use such property except for performance of work hereunder or as authorized in writing by Buyer. Such property while in Seller’s possession or control shall be kept in good condition, shall be held at Seller’s risk, and shall be kept insured by Seller, at its expense, in an amount equal to the replacement cost with loss payable to Buyer.  As and when directed by Buyer, at Seller’s risk and expense, Seller shall disclose the location of such property and or prepare it for shipment and ship it to Buyer in as good condition as originally received by Seller, reasonable wear and tear excepted.


11. Special Tooling. The term “special tooling” as used in this clause shall be deemed to include all jigs, dies, fixtures, molds, patterns, special cutting tools, special gauge, special test equipment, other special equipment and manufacturing aids and drawings and any replacement of the foregoing, acquired or manufactured or used in the performance of this Order, which are of such a specialized nature that, without substantial modification or alteration, their use is limited to the production of the supplies or parts thereof or performance of the services of the type required by this Order.  The term does not include (a) items of tooling or equipment heretofore acquired by Seller, or replacement thereof, whether or not altered or adopted for use in the performance of this Order; (b) consumable small tools, (c) general or special machine tools or similar capital items; or (d) tooling, title to which is in Buyer.


Seller agrees that special tooling shall be retained and not used or reworked except for performance of work hereunder or as authorized in writing by Buyer.  While in Seller’s possession or control, Seller warrants that it will keep the special tooling in good condition, fully covered by insurance and will replace it when lost, destroyed or necessary for performance of work hereunder.  Upon cessation or termination of the work under this Order for which the special tooling is required, Seller shall furnish Buyer a list of the products, parts or services for the manufacture or performance of which such special tooling was used or designed and a list indicating where each item of the special tooling is located and shall transfer title to and possession of the special tooling to Buyer for an amount equal to the unamortized cost thereof, or dispose thereof as Buyer may direct in writing.  In addition, Buyer shall have the right to take possession of, including the right of entry for such purpose, any special tooling, title to which Buyer acquires hereunder, without any additional liability whatsoever to Seller.


  1. Confidentiality and Proprietary Rights. Seller agrees to maintain as confidential any information disclosed to it by Buyer pursuant to this contract, including the existence and terms of this Order. All technical information whatsoever supplied to Seller by Buyer in respect to this contract shall be considered and kept confidential by Seller, and neither Seller nor any of its employees, agents or representatives shall disclose any such information directly or indirectly to any other person whatsoever. Additionally, Seller agrees that any invention, improvement or discovery (whether or not patentable), conceived or reduced to practice in the performance of this contract by any employee, representative or agent of Seller, or other person working under Seller’s direction (“Work Product”) shall belong exclusively to Buyer, and Seller automatically assigns and shall cause its employees, agents and representatives to automatically assign all right, title and interest in and to the Work Product to Buyer at the time of creation of the Work Product. Seller shall take such further action including execution and delivery of instruments of conveyance as may be appropriate to give full effect to such assignment.  Upon completion of this contract, Seller shall deliver to Buyer any and all information relating to any such Work Product.  Seller acknowledges and agrees that Buyer has valuable and proprietary trade names, trademarks, service marks, patents and copyrights, and Seller agrees that it will not refer to or use such trade names, trademarks, service marks, patents or copyrights except with the express written permission of Buyer.


  1. Indemnification. Seller agrees to indemnify, defend and save Buyer harmless from and against all damages, liabilities, claims, losses and expenses, including reasonable attorney’s fees, (i) resulting from any defect or imperfection in the design, material or workmanship of any good, a good’s merchantability or fitness for an ordinary or particular purpose; (ii) resulting from any failure of the goods to comply with all applicable specifications, warranties, testing or certifications; or (iii) for damage to property or for injury or death of any person caused by or in any way arising out of Seller’s furnishing of any good or service under this contract.


Seller further agrees, at its own expense, to defend any suit, action, claims or allegations of alleged infringement of patent or invention rights or misappropriation of intellectual property arising from the sale or use of such goods or services and agrees to indemnify, defend and hold Buyer harmless from any damages, liabilities, claims, losses and expenses (including attorney’s fees) paid or incurred by Buyer in connection with any such suit, action, claims or allegations, whether against Buyer or against those selling or using the goods or services covered by this Order; provided, however, that this indemnity shall not apply to any such damages, liabilities, claims, losses or expenses to the extent arising out of full compliance by Seller with specifications furnished by Buyer.


Seller agrees that this indemnification shall survive acceptance of the goods or services and payment therefor by Buyer, and shall be binding upon Seller, its successors and assigns, and shall inure to the benefit of Buyer, its successors and assigns and its officers, directors, agents and employees.


  1. Insurance. If this contract covers the performance of labor for Buyer, Seller agrees to furnish evidence satisfactory to Buyer that all liens have been released by all persons who have performed services or furnished materials under this contract. Seller further agrees, at its sole cost and expense, to maintain continually in force during the term of this contract a policy of Comprehensive General Liability insurance, including coverage for product liability, broad form personal injury and property damage, blanket contractual liability, and broad form vendor coverage, in the combined single limit amount of $1,000,000 per occurrence, automobile liability insurance (including non-owned automobile liability) and worker’s compensation and employer’s liability insurance as will adequately protect Buyer against the damages, liabilities, claims, losses and expenses (including attorney’s fees) referred to in Section 13.


All policies of insurance shall provide that the proceeds shall be payable to Buyer and Seller as their respective interests may appear.  All policies of insurance shall further provide that they shall not be cancelable on less than thirty (30) days notice to all insured.  Seller shall furnish Buyer with certificates, satisfactory to Buyer, evidencing such insurance policies and naming Buyer as an additional insured.  If Seller is self-insured, the certificate of the applicable state department of labor and industry must be furnished by such department directly to Buyer.  Compliance by Seller with the insurance requirements does not in any way affect Seller’s indemnification of Buyer under Section 13.


  1. Independent Contractor. The parties shall at all times act as independent contractors and in no event shall be considered employees or agents of the other party. Accordingly, no party shall, by virtue of this contract, be entitled to participate in or enjoy any benefits under any pension, welfare, fringe benefit or other compensation plan or program maintained by any other party. Nothing contained in this contract shall permit or authorize the parties to execute any agreement or take any other action that is binding upon the other.
  2. Termination. Buyer may at any time terminate this Order in whole or in part (i) for default by Seller of any or all parts of the contract, or (ii) for its convenience upon written notice to Seller in which event Seller shall be entitled to payment for work satisfactorily performed under this Order prior to termination, as evidenced by reasonable documentation. Upon termination due to Seller’s default, Buyer may elect to purchase, at Seller’s cost, any goods Seller may have purchased to fulfill Buyer’s order or exercise any other rights that Buyer may have in law or equity. In no event shall Buyer be liable for any special, consequential, speculative or punitive damages resulting from the termination of this contract.


  1. Compliance with Laws. Seller warrants that all goods or services furnished hereunder will comply with all applicable federal, state and local laws (and with the regulations, orders and standards thereunder). Buyer expects that Seller will comply with all applicable laws and regulations, which may include the United States’ Foreign Corrupt Practices Act of 1977, as amended from time to time, including the 1998 amendment (the “FCPA”) and the United Kingdom’s Bribery Act 2010 (“UKBA”). Buyer expects that, to the extent the FCPA or the UKBA applies to Seller’s activities, Seller will be knowledgeable of, understand and fully comply with the mandates of the FCPA or UKBA as applicable. Buyer shall complete any questionnaire or other document reasonably requested by Seller relating to its business activities and Seller’s goods.


  1. Conflict Mineral Compliance. Seller agrees that all products (including parts and components thereof) that it provides to Buyer which contain “conflict minerals” (as defined in section 1502(e) (4) of the Dodd-Frank Wall Street Reform and Consumer Protection Act) that are necessary to the functionality or production of the product, are “DRC conflict free” (as that term is defined at 15 U.S.C. § 78m (p) (1) (D)).


  1. This contractor and subcontractor shall abide by the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a).  These regulations prohibit discrimination against qualified protected veterans and qualified individuals with disabilities on the basis of disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities.
  1. Equal Opportunity / Affirmative Action. Seller agrees, to the extent applicable, to comply with Executive Order 11246 and the implementing regulations found at 41 CFR Part 60.  Seller incorporates into this Order, as applicable, the Equal Opportunity clauses found at 41 CFR § 60-1.4(a) and will likewise incorporate the clauses into all applicable subcontracts as required by 41 CFR § 60-1.4(d).


  1. Notice of Employee Rights Under Federal Labor Laws. Seller incorporates into this Agreement, as applicable, the obligations regarding the notice of employee rights under federal labor laws found at 29 CFR Part 471, Appendix A to Subpart A, and will likewise incorporate those obligations into all applicable subcontracts as required by 29 CFR Part 471.
  1. Waiver. The failure of Buyer to insist, in any one or more instances, upon the performance of any of the terms, covenants or conditions of this contract or to exercise any right hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such term, covenant or condition or the future exercise of such right, but the obligation of Seller with respect to such future performance shall continue in full force and effect.


  1. Assignment. None of the sums due or to become due nor any of the work to be performed under this contract shall be assigned by Seller, nor shall Seller subcontract for completed or substantially completed material called for by this contract without Buyer’s prior written consent. Seller shall be fully responsible for all work permitted to be performed by subcontractors.


  1. Controlling Law. The provisions of this Order and any contact between the parties shall be interpreted and construed in accordance with the laws of the State of Ohio and the exclusive venue for any actions brought under this contract shall be the State and Federal courts of Cuyahoga County, Ohio.


  1. Entire Agreement. These terms and conditions, and any purchase order provided to Seller by Buyer, constitute the entire understanding between the parties with respect to the subject matter herein and may only be modified in a writing signed by a representative of each party. Any additional or different provisions proposed by Seller are rejected and will not be effective unless agreed to in writing by Buyer.


  1. Acceptance: The Seller’s acceptance of any order is expressly subject to Buyer’s assent to each all of the terms and conditions set forth below. Any additional or different terms and condition submitted by Buyers shall be deemed objected to by Seller and shall be of no effect nor in any circumstances binding upon Seller unless accepted by Seller in writing. If Buyer object to any of the terms and conditions, said objections must be specifically brought to the attention of the Seller by Buyer by a written instrument separate from any purchase order or other printed form of Buyer. Said objections shall be deemed proposals for different terms and conditions and may be accepted only by a writing executed by an authorized representative of Seller at its offices in Harrison, Ohio, U.S.A.


  1. Prices and Transaction: Seller’s publish prices, terms of payment, including discounts, and transportation terms in effect at date of shipment of all goods, shall apply.


  1. Taxes: Liability for all present or future Federal, State, Municipal or other sales, property, use or exercise taxes, license fees or other fees imposed by or payable to any governmental authority, including any department, agency or subdivision thereof, upon the production, sale, shipment and/or use of the equipment, materials or services covered hereby shall be assumed and paid for by Buyer and Buyer shall and indemnify the Seller against any such liability.


  1. Delivery: Delivery of the equipment and material shall be made F.O.B. shipping point, an title and risk of loss of the equipment and material shall pass to the Buyer at F.O.B. shipping point, unless otherwise expressly indicated in writing signed by Seller. Unless Buyer specifies in writing the desired method of transportation (air express, motor freight, etc.,) within a reasonable period of time before the date scheduled for shipment, Seller will use its judgment in selecting the carrier and route. Delivery schedules are estimated, and Seller assumes no responsibility for delays. If Buyer delays delivery of any items, Seller may invoice Buyer for said items, and hold them at Buyer’s risk and expense pending instructions from Buyer.


  1. Terms of Payment: Invoices shall be due and payable within thirty (30) days of the invoice date. Payments not made within thirty (30) days are subject to finance charge of 1 1/2% of the outstanding balance each month or part thereof until paid. Payment terms are set forth on Seller’s invoice.


  1. Financial Responsibility of Buyer: If at any time before shipment the financial responsibility of Buyer becomes impaired, or unsatisfactory to the Seller, cash payment or satisfactory security may be required by the Seller before shipment. Buyer will cooperate with the Seller in complying with any applicable conditional sale or security law and will furnish the Seller with other assurances, including financial statements, as the Seller may reasonably request. If Buyer shall fail to make payments in accordance with the terms herein specified, Seller, in addition to its other rights and remedies, may at its option terminate shipment. In the event of bankruptcy or insolvency of Buyer, or in the event any proceeding is brought by or against Buyer under any bankruptcy or insolvency laws, the Seller may be entitled to cancel any order then outstanding and shall receive reasonable and proper cancellation charges.


  1. Changes: Buyer may, anytime, request a change in (a) the specifications, including drawings and data; (b) method of packing and shipment; (c) date for a performance. If such changes would result in increased costs or time to complete the performance of the contract. Seller shall submit a proposal identifying the price and schedule for which the change can be implemented. Buyer may accept said proposal at any time within the acceptance period specified therein, and the contract shall be modified accordingly.


  1. Cancellations and Returns: Orders may not be canceled by the Buyer without the prior written consent of the Seller. Equipment and material may not be returned by the Buyer without the prior written consent of the Seller. Cancellation and restocking charges will be assessed to the Buyer where applicable.


  1. Warranty: The Seller expressly warrants that equipment and material manufactured by it will be free from defects in material, workmanship and title at the date of shipment. This Warranty is exclusive and is offered in LIEU OF ALL IMPLIED OR STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION, WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE) or any other express or implied warranties of representations. All claims under this Warranty must be made in writing and delivered to the Seller prior to the expiration of the warranty period for the particular product. [either one (1), two (2), or three (3) years as set forth in the Operating Instruction and Parts Manual for the product], from the date of shipment from the factory, or be barred. Upon receipt of a timely claim, the Seller shall inspect the item or items claimed to be defective, and Seller shall, at its option, modify, repair or replace, free of charge, any item or items which the Seller determines to have been defective at time of shipment from the factory, excluding normal wear and tear. Inspection may be performed at the Sellers plant, and in such event, freight for returning items to the plant for inspection shall be paid by Buyer. Seller shall have no responsibility if such item has been improperly stored, installed, operated, maintained, modified and/or replaced by an organization other the Seller. Adjustments for items or equipment and material not manufactured by seller shall be made to the extent of any warranty of the manufacture or supplier thereof. The foregoing shall be Seller’s sole and exclusive liability and Buyer’s sole exclusive remedy for any breach of warranty or for any other claim based on any defect in, or non-performance of, the equipment and material, whether based on breach of contract or in tort, including negligence or strict liability.


  1. Disclaimer of Damages: Notwithstanding any other provision of contract, and no event shall the Seller or its subcontractors or suppliers be liable, whether arising under contract, tort (including negligence), strict liability or otherwise, for loss of anticipated profits, claims of Buyer’s customers, costs of money, loss of use of capital or revenue, cost of substitute products, or for any special, incidental or consequential loss or damage of any nature arising at any time or from any cause whatsoever.


  1. Assignment: Neither Seller nor Buyer shall have the right to assign any right or interest in any contract between Seller and Buyer unless such assignment is in connection with the transfer of all or substantially all of the assignor’s business, or upon written consent of the other party.


  1. Tender: In the event of failure or refusal of Buyer to accept delivery, no physical tender of the equipment and material by the Seller shall be necessary, but written notice of the Seller’s readiness and willingness to deliver any quantity of the equipment or material at any time specified shall be equivalent to physical tender thereof.


  1. Proprietary data: Unless otherwise specifically agreed in a writing signed by an authorized officer of the Seller, neither Buyer nor any representative of Buyer, nor any other person, shall be entitled to, or have control over, any engineering or production prints, drawings or technical data which the Seller, in its sole discretion, may consider to be, in whole or in part, proprietary. Any such prints, drawings, data and other information transmitted to Buyer in connection with any order are the property of Seller and are disclosed in confidence on the conditioned that they are not to be reproduced, copied or used for any purpose detrimental to the interest of Seller.


  1. Shipping tolerances: Buyer agrees to except a shipping tolerance of plus or minus ten percent (10%) on all “MADE TO ORDER” equipment and material. In the event of any overshipment within tolerance, additional items will be priced at the published price per item. In the event of any undershipment within tolerance, the shipment will be deemed as being complete and the order closed.


  1. Assistance: Seller may, but shall have no obligation to furnish Buyer with recommendations, engineering and technical information and advice and other assistance. All such assistance is furnished without charge solely as an accommodation to Buyer and the Seller shall have no liability for inaccurate, incomplete or faulty recommendations, information, advice and assistance, whether or not negligent.


  1. Labor standards: The Seller represents and warrants that all equipment, material and services will be manufactured or furnished by the Seller in accordance with its applicable standards, provisions, and stipulations of the Fair Labor Standards Act of 1938, the Walsh-Healey Act, the Work Hours Act, and the Section 202 of Executive Order No. 11246 as to non-discrimination in employment, and any amendments thereto.


  1. Force Majeure: The Seller shall not be liable for any expense, loss or damage resulting from delay or prevention of performance caused by fires, floods, acts of God, strikes, labor disputes, labor shortages, lack of or reasonable inability to obtain materials, fuel, supplies or other equipment, riots, thefts, accidents, transportation delays, acts or failure to act of government or Buyer, delay in obtaining licenses or required permits, unusually severe weather, or any other cause whatsoever, whether similar or dissimilar to those enumerated above, beyond the reasonable control of the Seller. In the event of any delay arising by reason of the foregoing, the time for performance shall be extended by a period of time equal to the time lost by reason of such delay.


  1. Non-waiver: No failure of Seller to insist upon strict compliance of Buyer to any of these terms and conditions or to promptly exercise any right accruing from any default of Buyer shall impair Seller’s rights in case Buyer’s default continues or in case of any subsequent default of Buyer.


  1. Governing law: The rights and obligations of Seller and Buyer with respect to any contract between Seller and Buyer shall be governed by the laws of the State of Ohio.