TESTEK’S TERMS AND CONDITIONS OF PURCHASE
The articles specified herein must be manufactured and delivered in strict accordance with all of the terms and conditions
of this order, of which the following shall be a part, to all of which the seller by acceptance hereof assents.
1.
This Purchase Order (“Order”) is an offer to Seller by Testek, Inc. to enter into the purchase agreement it describes,
and the Order shall be the complete and exclusive statement of the terms of such purchase agreement. Any
modification of this Order, to be valid, must be in writing and signed by an officer of Testek, Inc. Seller shall accept
this Order in writing, or shall be deemed to have accepted this Order, by delivery of any item or performance of any
service covered by this Order. Any waiver of compliance with the exact terms of this Order shall not constitute a
waiver of Testek’s right thereafter to insist upon such compliance. This contract is made in contemplation of and
shall be governed by and construed under the laws of the State of Michigan.
2.
Unless otherwise provided in this Order, Seller, for the price stated in this Order, shall (a) pack the items in
accordance with Testek’s Instructions and identify each container, packing slip, and invoice with Testek’s purchase
order number, quantity, and Seller’s name, (b) include a copy of the packing slip with each shipment and each bill of
lading indicating the number of packages and gross weight and (c) issue an invoice for each shipment with itemized
statements, monthly.
3.
Testek, Inc. may change shipping schedules or direct their temporary suspension. Testek, Inc. may reschedule or
cancel deliveries of any items which are not shipped at the time specified therefor, time being of the essence. All
items shall be subject to inspection, testing and rejection by Testek, Inc. at its facilities. Payment for items on this
Order prior to inspection shall not constitute an acceptance thereof. If this Order, or any part hereof, is canceled for
any reason, Testek’s obligation by reason thereof shall not extend beyond compensation for actual loss sustained
excluding overhead and profit.
4.
Neither Testek, Inc. nor Seller shall be liable for a failure to perform arising from causes or events beyond the
reasonable control and without the fault or negligence of Testek, Inc. or Seller in failing to perform, hereunder,
including but not limited to labor disputes of any kind. Whenever Seller has knowledge that any actual or potential
delay or threatened delay will affect the timely performance of this Order, Seller shall immediately give notice thereof,
including all relevant information with respect thereto, to Testek, Inc. In the event of a delay in performance, Testek,
Inc. at its option, may acquire possession of all identifiable finished goods, work in process and parts and materials
produced or acquired for the work hereof, and Seller shall deliver such articles to Testek, Inc. at Testek’s option
F.O.B. Seller’s plant or freight collect to a location designated by Testek, Inc.
5.
Seller expressly warrants that all items or services furnished under this Order will conform to samples and the
specifications, drawings or other descriptions furnished or specified by Testek, Inc., and will be merchantable, of
good material and workmanship, and free from defect and suitable for the purpose intended. Seller also warrants
that all items or services furnished under this Order conform to and comply with all applicable federal, state or local
laws, rules, regulations, orders and ordinances and for Orders involving Government contracts, and then applicable
procurement regulations.
6.
Testek, Inc. certifies, if the non-taxable box on the face of the order is checked, that the goods specified herein are
purchased for resale or for consumption or use in manufacturing, assembling or industrial processing.
7.
Seller warrants that the items specified herein (and their sale or use alone or in combination with other items by
reason of their content, design or structure, or according to Seller’s specifications or recommendations, if any) will
not infringe or contribute to the infringement of any present or future United States or foreign patents, copyrights,
industrial design rights, or other proprietary rights. Seller agrees to save harmless and indemnify Testek, Inc. and
anyone selling or using any of Testek’s products against all judgments, decrees, costs and expenses, resulting from
any actual or alleged infringement. Seller covenants to, upon request of Testek, Inc. and at Seller’s own expense
(including expenses and fees of counsel which shall be incurred in and about defending), defend or assist in the
TESTEK PROPRIETARY RIGHTS NOTICE — The information contained herein is confidential and proprietary to Testek, in that it has been developed by and contains its
trade secrets. It shall not be reproduced or disclosed in whole or in part to any person other than those necessary for user to utilize such information or used in any way
detrimental to Testek ’s interest. This information is not to be used for the design or manufacture of any related equipment or processes unless the user has specific written
authorization from Testek, Inc.
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defense of any action which may be brought against Testek, Inc., its successors, assigns or anyone selling or using
any of Testek’s products by reason of any such alleged infringement.
8.
Seller shall save harmless, indemnify and defend from and against all suits, claims (including worker’s compensation
claims), demands, damages (including incidental or consequential damages) and costs of whatever nature,
regardless of the merit thereof in connection with accidents, resulting from the services performed hereunder or
arising out of allegedly defective material or workmanship in the items or services provided by this Order or breach of
any of Seller’s warranties hereunder of which Testek, Inc. notifies Seller at any time, unless such damages or injuries
are caused solely by the negligence of Testek, Inc.
9.
During the performance of this Order, Seller agrees to comply with all provisions of the Equal Opportunity clause set
forth in 41 CFR Part 60-1, as amended. This Order shall be deemed to incorporate by reference all clauses required
by the provisions of said regulations and laws, including the requirements for certification of use of non-segregated
facilities, and wherever the term “Contractor” is used, said clauses shall be deemed to refer to Seller.
10. Seller certifies that it has developed and presently has in force and effect, if applicable, a written affirmative action
compliance program in accordance with the requirements set forth in 41 CFR S60-1.40 as amended. All provisions
of 41 CFR Part 60-250, as amended, pertaining to Affirmative Action for Disabled Veterans and for Veterans of the
Vietnam era, and all provision of 41 CFR Part 60-741 as amended, pertaining to Affirmative Action for Handicapped
Workers, are hereby incorporated by reference.
11. Seller hereby agrees to comply with all applicable requirements of the Fair Labor Standards Act and, insofar as
applicable to this Order, the Walsh-Healey Public Contracts Act and any amendments thereto, as well as any and all
rules and regulations issued under such acts, in the performance of work hereunder. Seller agrees that this
certification may be considered as the certificate contemplated under the Fair Labor Standards Act.
12. Testek fully complies with all U.S. export control laws and regulations (“US Export Controls”), including without
limitation the International Traffic in Arms Regulations (ITAR), the Export Administration Regulations (EAR), and the
foreign asset control and specially designated nationals regulations administered by the Office of Foreign Assets
Control (OFAC) in the Department of the Treasury. All products, technical data, software or technology to be
exchanged between Testek and your company must be handled in compliance with U.S. Export Controls.”
13. “As a Term and Condition of Purchase, it is the suppliers’ responsibility to provide Testek with export classification
data (USML category and sub category – ITAR) or (ECCN – EAR) on the Items procured from the supplier to enable
Testek to control such Items in compliance with U.S. Export Control requirements. Furthermore, Testek requires its
suppliers to use at least reasonable efforts to cooperate with and assist Testek in the correct identification and
classification of Items provided by the supplier or manufactured to supplier’s requirements, designs and/or
specifications, which may be subject to U.S. export control regulations. If the supplier does not or otherwise fails to
make reasonable efforts to provide classification information and assist Testek and/or its related companies, as the
case may be, to correctly identify or classify supplier Items subject to U.S. export control regulations, then Testek
shall have the option, at Testek’s sole discretion, to (a) return all Items not classified due to your breach of
obligations hereunder for a refund in full without penalty, fee or cost to Testek and you shall further reimburse Testek
for any additional costs or damages suffered by Testek as a result of procuring replacements, including without
limitation delay penalties paid by Testek to its customers, and/or costs of replacement Items over and above the cost
of the Items returned to you; or (b) keep the Items not classified due to your breach of obligations hereunder and you
shall (i) reimburse Testek for all costs and fees incurred by Testek in classifying the Item(s) for itself (including
without limitation) attorneys’ or consultant fees and/or costs associated with preparing, submitting and obtaining a
response to a Commodity Jurisdiction request (provided however Testek has no obligation to submit such a
Commodity Jurisdiction request); and (ii) indemnify and hold harmless Testek from any violation and/or penalties
incurred by Testek and/or its related companies which result or arise from inaccurate classification of Items during
the process of exporting the Items from the U.S. and/or during the import process at the country of destination.”
TESTEK PROPRIETARY RIGHTS NOTICE — The information contained herein is confidential and proprietary to Testek, in that it has been developed by and contains its
trade secrets. It shall not be reproduced or disclosed in whole or in part to any person other than those necessary for user to utilize such information or used in any way
detrimental to Testek ’s interest. This information is not to be used for the design or manufacture of any related equipment or processes unless the user has specific written
authorization from Testek, Inc.
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“The items, goods, technology and services covered hereunder (“Restricted Items”) do not refer only to physical
products and tangible items but also includes technical data, software, technology, know-how or other intangibles
and services which are subject to the U.S. Export Controls.”
“The supplier will also ensure that all company personnel who represent the supplier in a visit to Testek will identify
their citizenship/nationality. In the event Testek informs Supplier that restricted items will be involved or accessible
on a site visit to Testek’s facility or Supplier otherwise knows that restricted items will be involved or accessible on a
site visit to Testek’s facility, Supplier will only send personnel on such a site visit who are authorized by the U.S.
export regulations to receive and work with restricted items.”
D-U-N-S 05-062-4279
MICHIGAN SALES TAX LIC. 38-18948376
TESTEK PROPRIETARY RIGHTS NOTICE — The information contained herein is confidential and proprietary to Testek, in that it has been developed by and contains its
trade secrets. It shall not be reproduced or disclosed in whole or in part to any person other than those necessary for user to utilize such information or used in any way
detrimental to Testek ’s interest. This information is not to be used for the design or manufacture of any related equipment or processes unless the user has specific written
authorization from Testek, Inc.
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