1. Definitions:
   1. The word “Buyer,” whenever used herein, shall mean Western Diesel Services, Inc. d/b/a Terramac.
   2. The party with which the Purchase Order is placed is referred to herein as “Seller.”
   3. “Party” means either Buyer or Seller and “Parties” mean both of them.
   4. The goods and/or labor and/or services covered by the Purchase Order are referred to herein as the “Products” (which for greater clarity shall include goods, labor and/or services as the context may require, and, as to goods, includes all parts, portions, items, software, attachments, repairs, replacements and substitutions thereof).
   5. The terms “Purchase Order,” “herein” and “hereto” refer to and include collectively, these Purchase Order Standard Terms and Conditions (the “Terms and Conditions”), the purchase order attached to these Terms and Conditions, releases against blanket purchase orders issued by Buyer, if any, that incorporate the terms of the blanket purchase order by reference, the routing order issued in respect of the purchase order, if any, and all other documents, instructions and directions specifically made a part of the purchase order by Buyer, whether such documents are in printed or electronic form.
   6. “Buyer’s Facility” means the facility to which the Products are to be delivered or at which the services are to be provided by Seller (refer also to the routing order).
   7. “Delivery Date(s)” means Buyer’s on dock date at Buyer’s Facility or any other address specified by Buyer in the Purchase Order. For greater clarity, Seller is responsible for and must allow adequate shipping time so that the Delivery Dates are met.
   8. “Interest” means interest on the principal amount owed by one Party to the other Party accruing from demand through the date of repayment at the prime rate as reported in the Wall Street Journal, as adjusted from time to time, plus three (3%) percent per annum.
   9. “Third Party” means any person (which includes any natural person, corporation, company, partnership, limited partnership, governmental authority or other legal entity, including Buyer’s customer), other than Buyer or Seller.
   10. “Seller Document” means any bill of lading, quotation, acknowledgment, terms and conditions of purchase or supply, invoice or other document, whether in electronic or printed form, issued by Seller.
       
       
2. Offer; Acceptance of Terms by Seller; No Modification:
   A Purchase Order sent by Buyer to Seller is an offer to Seller to enter into the transaction the Purchase Order describes. Signing the Purchase Order or confirming the Purchase Order by e-mail or other writing constitutes agreement by Seller to be bound by the Purchase Order.  In addition, Seller’s commencement of work to manufacture or assemble a good, the delivery of the good to Buyer (in the case where Seller doesn’t manufacture or assemble the good), the provision of the service to Buyer described in the Purchase Order, or otherwise performing under the Purchase Order will constitute unconditional acceptance of the Purchase Order and the Terms and Conditions thereof, without requiring written acceptance from Seller. Any Seller Document, to the extent containing terms in addition to or inconsistent with the terms of the Purchase Order, or a rejection by Seller of any term of the Purchase Order, shall be deemed to be a counteroffer to Buyer and shall not be binding upon Buyer, unless expressly accepted by Buyer in writing made to Seller. This provision shall constitute a continuing objection to any such terms or rejections not expressly accepted by Buyer in writing made to Seller. For clarity, commencement of performance by Seller, in the absence of written acceptance by Buyer of terms in any Seller Document, shall be deemed to be performance in accordance with the terms of the Purchase Order and acceptance by Seller thereof and not the terms of any Seller Document, notwithstanding prior dealings or usage of trade between the Parties.  The prices set forth in this Purchase Order shall be firm and not subject to adjustment or variation unless specifically approved in writing by Buyer.
   
   
3. Product Fabrication; Shipping Schedules:
   1. Seller shall not fabricate any of the Products or procure any of the materials required in their fabrication, and Buyer shall have no obligation with respect to the Products, prior to issuance of the Purchase Order. Deliveries are to be made by Seller in quantities and at the times specified in the Purchase Order or in written instructions provided by Buyer to Seller. Seller agrees Buyer may from time to time however, change quantities of Products and times for delivery, or may direct temporary suspension of scheduled deliveries, without any liability whatsoever to Seller.
   2. Seller agrees to drop ship the Products to Buyer’s Facility or any other address specified by Buyer in the Purchase Order.
   3. Unless otherwise specified in the Purchase Order, risk of loss of the Products remains with Seller and title will not pass to Buyer until the Products are delivered to and accepted by Buyer at Buyer’s Facility or such other address specified in the Purchase Order.
      
      
4. Delay in Delivery:
   Time is of the essence with respect to delivery of the Products.  If Seller, for any reason, including an Event of Force Majeure as described in Section 16 hereof, does not comply with Buyer’s Delivery Date(s), Buyer, in its sole discretion, may in addition to exercising all remedies hereunder or under applicable law or in equity, (i) approve a revised Delivery Date(s), (ii) require shipment of any or all of the Products by a more expeditious method of transportation, at the sole cost of Seller, or (iii) terminate the Purchase Order without liability of Buyer to Seller on account thereof.
   
   
5. Delivery and Payment Not Acceptance:
   Delivery of or payment for Products shall not constitute acceptance of the Products, and all Products shall be subject to Buyer’s inspection and rejection, in writing. Buyer shall have 60 days from the date of delivery and full performance by Seller under the Purchase Order to inspect and reject the Products.  Neither payment nor acceptance shall constitute acknowledgment of the absence of breach of warranty or limit any of Buyer’s rights hereunder. Buyer, in its sole discretion, may in addition to exercising all remedies hereunder or under applicable law or in equity, (i) reject or revoke acceptance (which revocation shall not be limited by the 60 day inspection period) and, upon providing reasonable notice thereof, return at Seller’s sole risk and expense, or (ii) retain and correct, any Products that fail to conform to the requirements of the Purchase Order (even if the nonconformity does not become apparent until Buyer’s manufacturing, processing, or assembly activities, or until the Products are placed into service). Seller shall reimburse Buyer for all expenses incurred or resulting from Buyer’s rejection, revocation of acceptance, or correction of the Products.
   
   
6. Set Off:
   Buyer shall be entitled at any time to set off any sums owing by Seller to Buyer or to any of its affiliates against sums payable by Buyer in connection with any of Seller’s invoices regardless of the Purchase Orders or contracts from which such amounts arise.
   
   
7. Infringement; Use of Products Licensed:
   1. Seller warrants that the Products and the sale and/or use thereof (both before and after incorporation into products manufactured or assembled by Buyer or its subcontractors) do not and will not infringe any patents or other intellectual property rights under the laws of the United States of America or any other jurisdiction.
   2. Seller will furnish to Buyer, without restrictions on use or disclosure, all information and data Seller acquires or develops in the course of Seller’s activities under the Purchase Order. At Buyer’s request, Seller will discuss with Buyer or such Third Party designated by Buyer, without restrictions on use or disclosure, any potential design, quality or manufacturing issues with Products on which Seller worked or produced pursuant to the Purchase Order.
   3. Seller grants to Buyer and to its subsidiaries, affiliates and related entities an irrevocable, perpetual, nonexclusive, royalty-free license to make, have made, use, have used and sell under any other patents now or hereafter owned or controlled by Seller which cover any application of the technology embodied in the information or data Seller acquires or develops in the course of Seller’s activities under a Purchase Order. At Buyer’s request, Seller will furnish to Buyer all other information and data of Seller which Buyer deems necessary to understand the operation and to maintain the Products delivered under the Purchase Order, and to understand and apply the information and data of this Section 7(c), with no restrictions on use.
   4. Seller warrants that it is aware of the uses to which the Products are to be put, and grants to Buyer, and all Third Parties who use or to whom the Products are provided, an irrevocable, perpetual, nonexclusive, royalty-free license, with a right to further sublicense to other Third Parties, to use, repair and reconstruct the Products in any manner whatsoever. Seller represents and warrants that it has the full right to grant such licenses described in this Section 7.
      
      
8. Warranty:
   1. In addition to any other express or implied warranties provided by law or otherwise, Seller expressly warrants that each Product (whether goods or services) shall (i) be new and conform, in all respects, to the Purchase Order and all specifications, drawings, blueprints, samples and other descriptions which may have been provided by Buyer, (ii) be of merchantable quality and fit for the purpose for which it is intended (which shall be deemed to be known to Seller), (iii) be free from all defects in design, workmanship and materials, and (iv) be of the highest quality and workmanship. Seller also expressly warrants that title to the Products shall be vested in Buyer, free and clear of any liens and encumbrances of whatsoever nature and kind.
   2. All warranties of Seller, express and implied, and remedies of Buyer in this Section 8 or contained elsewhere in the Purchase Order, shall survive indefinitely of any delivery, inspection, tests, acceptance and payment and shall apply notwithstanding any inspection of the Products, or any part thereof, on, before or after delivery thereof to Buyer. Seller acknowledges that (i) it knows or that Buyer has advised it as to the purpose(s) for which the Products are intended, (ii) Buyer is relying on Seller’s skill and judgment in supplying or providing the Products, and (iii) the Products are of a type which it is Seller’s business to supply.
   3. Upon any breach of warranty, in addition to all remedies hereunder or under applicable law or in equity, Buyer may, in its sole discretion (i) cancel all or any portion of the Purchase Order, (ii) require Seller to repair or replace any or all Products, at Buyer’s sole discretion and at Seller’s sole expense, to be delivered at Buyer’s Facility or at such other location designated by Buyer, (iii) require Seller to pay all transportation and other charges arising from delivery, storage, repair, replacement, and return of Products, (iv) purchase replacement Products from a Third Party and charge the costs thereof to Seller, who shall promptly reimburse such costs to Buyer, and/or (v) repair or replace (either through Buyer or its designee) any or all Products in the shop or field, and charge the costs thereof to Seller (at Buyer’s or its designee’s then current labor rates), who shall promptly reimburse such costs to Buyer.
   4. Seller’s warranty on the Products shall commence immediately, The warranty shall remain in effect for a minimum period of twenty-four (24) months from acceptance by Buyer’s customer of the product into which the Products are incorporated (in the case of goods) or acceptance by Buyer after the completion of services by Seller (in the case of services), provided however, the warranty shall be extended by a period equal to (x) the number of days that Seller attempts to make a warranted repair to the Products until such repairs are successfully completed, plus (y) the number of days during which the Products (or the products into which the Products are incorporated) are inoperative pending commencement of a warranted repair. The warranty on any replacement component parts shall commence as described above in respect of the original Product. The warranties described hereunder are supplemented by any enhanced warranty Seller may provide in respect of the Products, but for clarity, the warranty shall not be reduced by any such enhanced warranty.
   5. Due to the high cost of processing Products or parts that are found to be defective or that do not conform to the specifications, drawings, blueprints, samples and other descriptions which have been provided by Buyer, Buyer may charge, in its sole discretion, a processing fee of $100.00 for each occurrence.
   6. Certified reports showing test results, analyses and inspection records showing compliance with applicable specifications, drawings, blueprints, samples and other descriptions which have been provided by Buyer or regulatory requirements are required to be provided by Seller to Buyer upon demand thereof from time to time.
      
      
9. Packaging:
   1. Seller shall properly package the Products described in the Purchase Order for safe shipment and shall, when instructed by Buyer, follow special packaging instructions.
   2. Each Product must be packaged or bundled separately from other Products, where practicable.
   3. For shipments within the United States of America, Seller must include packing slips that are clearly marked and affixed to the outside of the box or container.
   4. For shipments between the United States of America and another country, Seller must include packing slips that are clearly marked and affixed to the outside of the box or container, together with a copy placed inside such box or container.
   5. All packing slips must include the following bar coded information: (i) Sellers name, (ii) Buyer’s Purchase Order Number, (iii) Buyer’s part number or Seller’s part number if Buyer’s part number is not on the Purchase Order, (iv) the quantity ordered, (v) the quantity being shipped, (vi) the Purchase Order release number, if applicable, (vii) the Purchase Order line number, and (viii) the Purchase Order shipment number.
   6. Each box or container shall be permanently and legibly marked showing Buyer’s part number or Seller’s part number if Buyer’s part number is not on the Purchase Order, the quantity enclosed and the Product’s date of manufacture date and batch number.
   7. Wooden packing crates, pallets and materials must comply with all applicable United States export and import laws.
      
      
10. Default:
    Seller shall be in default hereunder if (i) Seller does not comply with the Purchase Order or any term or condition therein contained in any respect, (ii) Seller makes an assignment for the benefit of creditors, or proceedings in bankruptcy or insolvency are instituted by or against Seller, or (iii) at any time in Buyer’s reasonable judgment, Seller’s financial, business, operational or other condition or progress in respect of the Purchase Order shall be such as to endanger timely performance thereunder. Upon any default hereunder, in addition to all other remedies available to Buyer hereunder or at law or in equity, Buyer may (i) terminate all or any part of the Purchase Order without liability to Buyer except to pay Seller the contract price for Products delivered to and accepted by Buyer prior to notice of termination, (ii) purchase from a Third Party goods or services as a replacement of the Products ordered hereunder and recover from Seller, on demand, any and all incremental costs relating thereto, plus Interest, and (iii) recover from Seller all attorney’s fees actually incurred, costs of suit and such other damages arising from or incurred by Buyer as a result of Seller’s default.
    
    
11. Indemnification:
    Seller shall indemnify, defend and hold harmless Buyer, its subsidiaries, affiliates, related entities, customers and other Third Parties who use the Products or the products into which the Products are incorporated, and each of their respective shareholders, members, directors, officers, employees, agents and contractors, on demand, from and against any and all claims, demands, actions, causes of actions, suits, losses, costs, fees, penalties, damages (consequential and otherwise), attorneys’ fees and all other liabilities and obligations whatsoever (collectively, “Losses”) arising out of or related in any way to the Products (goods and/or services) provided by Seller hereunder or Seller’s or its subcontractors’ or suppliers’ performance or obligations arising under the Purchase Order, including, without limitation:
    1. personal injuries, illness or death of any natural person (including, without limitation, Seller’s employees, agents and contractors) or damage to any property (including without limitation, Seller’s property) or any spill, discharge or emission of hazardous wastes or substances which relates to, in whole or in part, (i) any manufacturing, design or other defect, failure to warn, improper handling, improper removal, moving or installation of production machinery, improper operating installation instructions or other act or omission of Seller, its contractors or suppliers with respect to any of the Products, or (ii) the performance by Seller or its contractors of any services, whether on property of Buyer, Seller or any Third Party;
    2. any breach of warranty made by or on behalf of Seller with respect to the Products or otherwise and any claim of a Third Party relating to any Products or their characteristics or quality;
    3. any breach or default by Seller of the Purchase Order or any other agreement made between Buyer and Seller;
    4. any recall campaign of Seller or otherwise made in connection with the Products; and/or
    5. claims alleging violation or infringement of any patent, copyright, or other intellectual property or proprietary right relating to Products provided by Seller, or any alleged improper disclosure or use of any trade secret arising from the manufacture, use or sale of any Products delivered under the Purchase Order even if they are made to Buyer’s specifications.

       To the maximum extent permitted by applicable law, Seller’s obligation to defend and indemnify will apply even as to Losses caused in part by an indemnitee’s negligence, but Seller’s indemnification shall not apply to the extent that Losses are clearly shown to have resulted solely and directly from the negligence or willful misconduct of such indemnitee. Seller’s obligation to defend and indemnify will also apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise. Seller’s indemnification obligation shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the benefit of Seller under workers’ compensation, occupational disease, disability benefits or any other employee benefits legislation.

       In furtherance and not in limitation of the foregoing, Seller agrees that it will pay Interest to Buyer, on demand, in respect of all amounts owed under its obligation of indemnification calculated from the date such amounts are due and payable by Seller. Buyer may, at its sole option, participate in the defense of any claim with its own counsel, at Seller’s expense.
       
       

12. Change or Cancellation for the Convenience of Buyer:
    Buyer reserves the right, for any reason whatsoever, to cancel and terminate any undelivered portion of the Purchase Order or make changes in the specifications, amount, type, etc., of the Products. Buyer will have such right of cancellation notwithstanding the existence of an Event of Force Majeure under Section 16. Upon receipt of notice of cancellation, Seller, unless otherwise directed by Buyer, will (i) terminate promptly all work under the Purchase Order, (ii) transfer title and deliver to Buyer the finished Products or work, the work in progress, and the parts and materials which Seller produced or acquired in connection with Purchase Order and which Seller cannot use in producing goods for itself or for others or which Seller cannot sell to others, (iii) verify and settle all claims by subcontractors and suppliers for actual costs that are rendered unrecoverable by such termination and ensure the recovery of materials in Seller’s possession is provided, and (iv) take all such actions reasonably necessary to protect property in Seller’s possession in which Buyer has an interest until disposal instructions from Buyer are received. Subject to the other provisions hereof, Buyer shall pay to Seller only the following amounts, without duplication, in complete and final satisfaction of any liabilities of Buyer to Seller (and as Seller’s sole remedy) under the cancelled Purchase Order, provided however, that Buyer shall not be liable to pay Seller any amount in excess of the purchase price under the Purchase Order in respect of the Products cancelled or for any other reason:
    1. The purchase price for all Products delivered to and accepted by Buyer under the Purchase Order prior to the cancellation or change;
    2. Upon approval and agreement by Buyer, in its sole discretion, the reasonable and proven (by documentation required by Buyer) direct out-of-pocket expenses (excluding equipment expenses) actually incurred by Seller for raw materials acquired to produce the Products cancelled under the Purchase Order and not shipped prior to cancellation or change, provided that Seller shall use its best efforts to mitigate any such expenses, including by selling elsewhere

       In the event of a change, Buyer will use commercially reasonable efforts to make an appropriate and reasonable adjustment to the purchase price and/or Delivery Date(s) for the Product.

       Nothing in this Section 12 shall be deemed to limit Buyer’s rights or remedies, including the right to terminate or recover damages for breach of contract by Seller.
       
       

13. Replacement Parts:
    Seller will ensure that it makes the Products available to Buyer for purchase for a fifteen-year period commencing from the date of acceptance by Buyer’s customer of the Product or Buyer’s product into which the Product was incorporated. Seller will sell the Products during such fifteen-year period at the lowest selling price accorded to its best customers. Prior to the expiration of the fifteen-year period, if requested by Buyer, Seller agrees to negotiate in good faith with Buyer to continue to provide and sell the Products to Buyer beyond the conclusion of the fifteen-year period.

    In consideration of Buyer purchasing the Product from Seller, Seller also grants, or ensures the original source supplier of the Product grants, Buyer and Buyer’s customer a royalty-free, non-exclusive and irrevocable license and right to reverse engineer Products, whether or not patented or otherwise protected under intellectual property laws, to be effective in the event Seller does not or refuses to sell the Product or a product that is a direct replacement product of equal function, quality and comparable price to the Product. In such event, Seller shall also provide Buyer (i) the name, contact information and part number of the original source supplier of the Product to enable Buyer to purchase such Product directly from the original source supplier, and (ii) the original engineering drawings for the Product in order for Buyer to fulfill its obligations to Buyer’s customer.
    
    

14. Recall of Products:
    Seller agrees to notify Buyer in writing immediately upon the occurrence of a recall or safety-related issue relating to the Products sold by Seller to Buyer, including any Products previously sold by Seller to Buyer that are no longer currently being sold by Seller.
    
    
15. Insurance; Waiver of Liens:
    Seller agrees to furnish to Buyer promptly upon request a certificate from its insurance brokers or agent showing that it carries adequate (as determined by Buyer from time to time in its sole discretion) comprehensive general liability insurance coverage, including contractual liability insurance coverage applicable to the Purchase Order. The certificate must show the amount of coverage, policy number, and date of expiration and must require the broker or agent to give Buyer thirty (30) days’ prior written notice of any lapse or cancellation of any policy. Buyer shall also be shown as an additional insured on the comprehensive general liability policy reflected on the certificate of insurance if services are to be performed on Buyer’s premises. Seller hereby waives all mechanics’ liens and claims and agrees that none shall be filed or maintained against Buyer or the Products and shall immediately remove or cause to be removed any such liens or claims if they exist. Seller shall cause all its subcontractors, material men, warehousemen, and suppliers (and subcontractors of such parties) to provide similar waivers and agreements in form satisfactory to Buyer.
    
    
16. Force Majeure:
    Neither Party shall be liable for failure to perform, or for delay in performing, any of its obligations under the Purchase Order during any period in which such Party cannot perform due to matters beyond its reasonable control, including, but not limited to, act of God, fire, flood, or other natural disaster, explosion, strike, act of or authorized by any government, war, embargo, riot, accident, (“Event of Force Majeure”); provided, however, that the Party so delayed immediately notifies the other Party of such delay. For clarity, an Event of Force Majeure will not include the failure to obtain or hardship in obtaining reasonably priced supplies of materials, labor, or energy, failure of usual transportation mode, or inability to obtain material, equipment or transportation.
    
    
17. Remedies Cumulative; No Waiver:
    Buyer’s remedies relating hereto shall be cumulative and in addition to any other remedies provided herein or by law or in equity. No delay by Buyer in the enforcement of any provision of the Purchase Order shall constitute a waiver thereof, and no waiver thereof shall constitute a waiver of any other provision. In the event that any Party to the Purchase Order shall, on any occasion, fail to perform any provision of the Purchase Order that it is required to perform, and the other Party does not enforce that provision, the failure to enforce on that occasion shall not prevent enforcement of that provision on any other occasion.
    
    
18. Jurisdiction; Venue; Jury Waiver; and Governing Law:
    The contract created by Seller’s acceptance of Buyer’s offer as set out in Section 2 hereof shall be deemed in all respects to be a contract made under, and shall for all purposes be governed by and construed in accordance with the laws of the State of Missouri, without reference to the State of Missouri’s choice of law provisions. The Convention for the International Sale of Goods shall not apply to the sale and purchase of goods hereunder.  Any suit, action, or other proceeding arising from or relating to the Purchase Order or the Products shall be brought exclusively in the jurisdiction of (i) the Circuit Court of the County of St. Louis County, Missouri or (ii) the United States District Court for the Eastern District of Missouri, and the Parties irrevocably submit themselves to such jurisdictions.  To the extent permitted by applicable law, each Party hereby waives, and agrees not to assert, by way of motion, as a defense, or otherwise that the suit, action, or proceeding is brought in an inconvenient forum, or that the venue of the suit, action, or proceeding is improper in the above referenced courts.  Each Party expressly and irrevocably waives any right to trial by jury, to the extent permitted by law, of any claim, demand, action, or cause of action arising from or relating to the Purchase Order or Products; and such party hereby agrees and consents that any such claim, demand, action, or cause of action shall be decided by the court without a jury.
    
    
19. Miscellaneous:
    Seller shall not assign any of its rights or obligations under the Purchase Order without Buyer’s prior written consent. No assignment shall relieve Seller of any of its obligations hereunder. No modification, alteration or amendment of the Purchase Order shall be binding unless agreed to in writing and signed by Buyer. No waiver by any Party of any of the provisions of the Purchase Order shall be effective unless explicitly set forth in writing and signed by the Party so waiving.
    
    

For further information, please contact your representative in the Sales or Parts Department, Terramac at (630) 365-4800.