Purchase Order Standard Terms and Conditions

1. Contract

• By furnishing Products described on the Order, including any supplements, addendums, or other modifications thereto, Seller acknowledges that it has accepted these Terms and agrees to be bound the same, and Seller expressly, unconditionally, and irrevocably waives any and all terms and conditions of its quotation, acknowledgement, invoice or other form which are inconsistent with these Terms.
• Orders are non-assignable by Seller.
• McElroy provides suppliers with current drawings via our Vendor Portal (https://vendor.mcelroy.com/vendor). It is Seller's responsibility to obtain the referenced version from the Supplier Portal or contact appropriate McElroy personnel for assistance.
• Seller must acknowledge price and delivery via reply email or Electronic Data Interchange (EDI) within 3 days.
• Seller must include the McElroy Purchase Order Number, Part Number, Release Number (if applicable) on all acknowledgements, packing lists, shipping notices (if applicable), and invoices.
• Shipment in response to this Order constitutes Seller's acceptance of these Terms. McElroy will not accept any price increases, changes, surcharges, overtime charges, expediting fees or any other charges of any kind or nature not disclosed by Seller and acknowledged by McElroy within 3 business days of the Order date.

2. Subcontracting

• Seller agrees not to subcontract with respect to the Seller's performance herein, except as may otherwise be provided on the face of McElroy's applicable Order.

3. Payment and Invoices

• Any invoice incorrectly presented to McElroy shall be returned to the Seller unpaid.
• In the event Seller owes McElroy any sums of money, McElroy has the right to offset these amounts against any invoices presented by Seller for payment.
• The prices specified in the Order may not be increased without prior written consent of McElroy.
• Prices include all charges for packing, storage, insurance and transportation to the location specified on the face of the applicable Order and must be itemized on the invoice.
• Unless otherwise expressly stated herein, prices set forth in the Order shall include all applicable taxes, including without limitation foreign, federal, state, local and value-added taxes, duties, tariffs, imposts or levies.

4. Delivery Schedules

• Time is of the essence.
• In accepting this Order, Seller agrees to perform this Order and make deliveries hereunder as required.
• Deliveries are to be made both in quantities and at times specified in schedules furnished by McElroy and shall not be excused by Seller's inability to obtain materials, supplies, or labor from its usual sources.
• McElroy will have no liability for payment for material or items delivered to McElroy which are in excess of quantities specified in the delivery schedules.
• McElroy may from time to time change delivery schedules or direct temporary suspension of scheduled shipments.
• Products shall be prepared for shipment in a manner that follows the best commercial practice with regard to the applicable products.

5. Shipment Instructions

• PARCEL - For shipments under 150 pounds, please ship Parcel. FedEx Account #779028879 - preferred. UPS Account # 9W6R51 - alternate. Notate PO Number in the Reference ID Field.
• LTL: Shipments over parcel weight, ship via eShipping by using the online form: https://pickup.eshipping.biz. Reference the PO Number when dispatching. For questions, email/call pickups@eshipping.biz or 866.890.3408.

6. Warranty; Epidemic Failures

• Seller expressly warrants and guarantees to McElroy (including, without limitation, McElroy's successors, assigns, and customers), that all the Products covered by the Order will (A) conform to the specifications, drawings, samples, or other descriptions furnished by Seller or specified by McElroy; (B) conform to all applicable laws, orders, regulations, and standards in countries where Products or other products incorporating the Products are to be sold; (C) be merchantable of good material and workmanship and free from defects; (D) not infringe upon ,violate or misappropriate the patent, copyright, trademark, trade name, trade dress, trade secrets, or any other proprietary or intellectual property rights of any third party; (E) be fit and sufficient McElroy's stated use and for the purposes intended by McElroy. The warranty period shall be the longest of (i) 12 months from the date McElroy accepts the Products; (ii) supplier's standard warranty from the date McElroy accepts the Products; or (iii) the warranty period provided by applicable law. For all services comprising all or a portion of the Products, Seller further warrants that its work will be performed in a professional and workmanlike manner, by properly licensed and trained personnel, consistent with all standards and specifications agreed upon with McElroy, and otherwise consistent with industry standards. Seller will immediately notify McElroy in writing when it becomes aware of any component, design, or other defect, including, without limitation, that is or may become harmful to persons or property.
• Notwithstanding anything to the contrary in these Terms, the warranty shall survive any inspection, delivery, acceptance, or payment by McElroy, which shall in no way waive or otherwise impair McElroy's right or ability to make warranty claims against Seller.
• "Defective Product" shall mean any Product that fails to conform to the warranty described in Section 6.a. above in any respect whatsoever. "Epidemic Failure" shall mean: (i) more than [five percent (5%)] of Seller's Products delivered to McElroy within a one-year period proves to be Defective Product (as determined by McElroy's quality systems/analysis), or (ii) any Product that is subject to a mandatory or voluntary recall. For purposes of determining whether an Epidemic Failure has occurred, a Product that would be a Defective Product but for the expiration of the warranty period will be a Defective Product. In the event of Epidemic Failure, in addition to its warranty and other obligations, Seller will be responsible for all losses, liabilities, damages, and costs that McElroy incurs as a result of the Epidemic Failure, including, without limitation, removal costs, freight, labor costs, and rework (whether or not performed by Seller) of (A) any solution, workaround, recovery plan, or engineering change required to remove or remedy the causes of the Epidemic Failure, and (B) any field stocking recall, retrofit, and/or Product recall. In addition, if requested by McElroy, Seller shall, at its sole expense, support and provide a sufficient number of applicable Products to enable the field exchange or Products at McElroy-designated sites (which may include McElroy's customers' sites). Seller shall use commercially reasonable efforts to promptly diagnose the Epidemic Failure's root cause and to develop an effective and timely workaround and permanent solution. Seller will consult with and keep McElroy informed concerning any proposed workaround and other solutions, and will not implement any such proposed workarounds or solutions without McElroy's advance written approval. McElroy may, in its sole discretion, return any Products then in its possession which are the subject of an Epidemic Failure for a full refund (including, without limitation, shipping and insurance charges). McElroy's remedies pursuant to this Section 6.c. are in addition to any and all other remedies in these Terms, including, without limitation, pursuant to Section 6.a., and will be available to McElroy regardless of whether the warranty period specified in Section 6.a. has expired.

7. Cancellation / Default / Termination

• McElroy reserves the right to cancel all or any part of this Order without payment or penalty if Seller does not make deliveries as specified, or fails to make progress as to endanger timely performance of the work, or if Seller breaches any of these Terms, including without limitation the warranties of Seller, or if McElroy's business purpose is substantially frustrated, or in the event Seller becomes insolvent or there is filed by or against Seller, a petition in bankruptcy, reorganization, or other insolvency proceeding.

8. Inspection; Title and Risk of Loss

• All Products shall be received subject to McElroy's inspection and rejection. Title to the Products passes to McElroy upon the first to occur of (i) full payment for the Products; or (ii) delivery of the Products to McElroy's location and acceptance by McElroy. Defective Products or Products not conforming will be held for Seller's instruction and at Seller's sole risk of loss. Seller shall bear all risk of loss or damage to the Products until delivery of the Products to the applicable McElroy location and acceptance by McElroy thereof.
• McElroy has the right to inspect and test the Products at any time before delivery and may enter Seller's facilities to inspect the facilities, Products, materials, and any other related item related to the subject Order. Nothing in this Order (including, without limitation, whether McElroy elects not to inspect or test the Products prior to delivery) shall release Seller from the obligation of testing, inspection, and quality control.
• No Products returned as defective shall be replaced without a new order, unless specifically requested in writing by McElroy.
• Any difference in price or time for performance resulting from such changes shall be equitably adjusted and this Order shall be modified in writing accordingly.
• Non-conforming castings or components with machine time invested will be returned to Seller for full value. In addition, a credit of $200 will be taken by McElroy as a reasonable estimate (and not as a penalty) to cover the machine time lost due to the non-conforming casting or component.In such event, Seller is required to provide authorization to return the casting, and pay the freight cost.

9. Material Furnished by McElroy

• Any material, including but not limited to tools, molds, dies, gauges, jigs, fixtures, and other similar items furnished by McElroy (or other third party at the direction of or on behalf of McElroy), on other than a charge basis in connection with the Order, shall be deemed as held by Seller upon consignment for the benefit of McElroy.
• All such material not used in filling this Order shall, as directed, be promptly returned to McElroy and if not accounted for or so returned shall be promptly paid for by Seller.
• All such material shall be fully covered by Seller with fire and extended coverage insurance.
• Seller shall defend and indemnify McElroy against any and all liability for damages to such material or injury or damage to others, including, without limitation, Seller's employees, independent contractors, licensees, and invitees, arising out of or in connection with the presence or use of such material whether such injury or damage is caused by defects in such material, McElroy's negligence or otherwise.

10. Tooling

• Unless otherwise herein agreed, Seller at its own expense shall furnish, keep in good condition and repair or replace when necessary, all tooling including but not limited to dies, tools, gauges, fixtures and patterns necessary for the production of the Products ordered.
• McElroy has the option to purchase any such tooling that is special for the production of Products covered by this Order and shall pay to Seller the unamortized cost thereof, provided that this option shall not apply if the Products hereby ordered are the standard product of Seller or if a substantial quantity of like material is being sold by Seller to others.

11. Orders for Castings - Special Terms

• Almost all cast aluminum parts utilized by McElroy receive hard anodize plating as a final process. Any weld repairs on aluminum castings show up prominently after hard anodize as black discoloration that does not match the surrounding cast material. Since any such welded areas are not easily discernible on the raw castings, McElroy is often unaware of any such issues prior to incurring the cost of machining the hard anodize. Therefore, any weld repairs on Products that include castings require McElroy approval before proceeding. Though seldom acceptable, there may occasionally be minor repairs that could be made depending on the part number, location and severity of the defect. Notwithstanding anything to the contrary in these Terms, no welded castings are to be shipped without prior written approval from McElroy.

12. Confidential Information

• Seller agrees not to utilize or disclose to others any confidential information, drawings, or data except as permitted under the terms of the mutual non-disclosure agreement entered into by the parties and incorporated herein by reference.

13. Rights of McElroy to Discoveries and Developments Arising Incident to this Order

• All inventions, discoveries, improvements or ideas, whether patentable or not, made, conceived, developed, or acquired by Seller in connection with or otherwise incident to the filling of this Order shall vest in and inure to McElroy's sole benefit, and Seller agrees to promptly assign, and to cause its employees to sign, any instruments necessary to enable McElroy to obtain title to such intellectual property.
• Seller agrees that to the extent this Order is issued for the creation of copyrightable works, that the works will be considered "works made for hire", and to the extent that the works do not qualify as such, to assign to McElroy upon delivery thereof all right, title and interest in all copyrights and moral rights therein (including source code).
• At no additional cost, Seller will and hereby does grant McElroy a license to use any intellectual property owned by Seller that is necessary or incident to the reasonably intended use or application of the Products.

14. Intellectual Property Rights

• Seller represents and warrants that its manufacture of the Products (including any parts and components utilized therein) do not violate or otherwise infringe on the patents, trademarks, copyrights, trade secrets or other intellectual property rights of any third party. Seller agrees to defend at its own expense and to indemnify and hold McElroy harmless against any loss, cost, expense or liability arising out of any claim by a third party involving a breach of the representation and warranty herein.
• McElroy represents and warrants that the specifications, drawings, samples, or other descriptions it provides to Seller in connection with the manufacture of the Products do not violate the patents, trademarks, copyrights, trade secrets or other intellectual property of any third party. McElroy agrees to defend at its own expense and to indemnify and hold Seller harmless against any loss, cost, expense or liability arising out of any claim by a third party involving a breach of the representation and warranty herein.
• Except as otherwise set forth in Section 13, nothing in these Terms shall confer on either party the intellectual property rights of the other, nor any agreement to prosecute actions or suits against third parties for infringement, nor any right to use the trademarks, trade secrets, patents, copyrights, proprietary or other intellectual property rights of the other party.
• The Products, and all promotional, packaging and advertising material therefore shall include all appropriate legal notices and comply with the marking provisions of the intellectual property laws of the applicable countries where the goods are sold.
• Neither party shall use the name, image, trade dress, logo or other likeness of any kind in advertisements or marketing or publicity activities, nor otherwise disclose the existence or content of these Terms, the Order or any other document related thereto without the prior written consent of the other.
• Neither party makes any representation or warranty with respect to the validity of any patent, trademark or copyright which may be granted with respect to the Products.

15. Compliance with Laws

• In performance of its obligations upon acceptance of this Order, Seller shall comply at all times, and give all stipulations, representations, and certifications required by all applicable executive orders, federal, state, municipal and local laws, and rules, orders, requirements and regulation hereunder and all applicable regulations and provisions of any involved government agency.
• Seller's acceptance of this and furnishings of Products hereunder shall constitute certification by Seller of such compliance as McElroy shall request from time to time.

16. Non-Discrimination / Equal Opportunity Clause

• Seller acknowledges that McElroy and Seller are committed to non-discrimination in purchase contracting. Seller agrees that it will not maintain segregated facilities or discriminate against any employees, applicants, subcontractors, or suppliers because of age, race, color, religion, sex, national origin or other protected characteristics.
• The Seller agrees to take affirmative action to ensure that applicants are employed and that employees are treated during employment, without regard to their age, race, color, religion, sex, or national origin. Such action shall include, but not be limited to the following: employment, upgrading, promotion, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training including apprenticeship.
• The Seller agrees to post in conspicuous places available to employees and applicants for employment, notices setting forth the provisions of this Non-Discrimination / Equal Opportunity Clause.
• The Seller further represents and agrees that it currently does and at all times while providing Products to McElroy will continue to comply with all provisions of Executive Order 11248, as amended, the Vietnam Era Veterans Readjustment Act, The Rehabilitation Act, all other Equal Employment Opportunity Laws and Executive Orders and of the rules, regulations and relevant orders of the Secretary of Labor which are incorporated in every nonexempt contract between Seller and McElroy. Seller will obtain identical certifications for proposed subcontractors which are not exempt from the provisions of the Executive Order requiring the Equal Opportunity Clause.

17. Indemnification and Insurance

• If this Order covers the performance of labor or operation of a motor vehicle or involves the presence of Seller's agents, employees, contractors, or representatives at premises owned, leased or controlled by McElroy or at which McElroy is performing services or doing work for others, Seller agrees to defend and indemnify McElroy against all liabilities, claims, or demands for injuries or damage to any person or property arising out of the performance of this Order and to defend and indemnify McElroy against all liabilities, claims, or demands for injuries to Seller's agents, employees or representatives of every nature and description, including those arising out of McElroy's negligence.
• Seller (including all of its contractors and subcontractors) shall not commence work of any kind under any Order until all insurance requirements contained in these Terms have been complied with and a Certificate of Insurance evidencing such coverages has been provided to McElroy. All insurance required by these Terms shall be maintained by Seller until all of Seller's obligations under any Order, including any extensions thereof, have been fulfilled. Seller waives its right of recovery and will cause its insurers to waive their rights of subrogation under all insurance policies required herein. Seller hereby releases McElroy and its affiliates, and each of their directors, officers, and employees, for losses or claims for bodily injury, property damage, or other insured claims arising out of Seller's performance hereunder. McElroy, and any other of McElroy's affiliate entities as may be reasonably requested by McElroy from time to time, shall be named as an additional insured under the CGL and Automobile Liability policies required hereunder. It is expressly agreed and understood by Seller and McElroy that the insurance afforded the additional insureds shall be the primary insurance and that any other insurance carried by McElroy or any such other additional insureds shall be excess of all other insurance carried by Seller and shall not contribute with the Seller's insurance. The minimum insurance coverage and limits listed below are required. Where insurance coverage and/or limits are mandated by law or statute, local requirements apply subject to the minimum limits stated below. The purchase of such insurance coverage (or failure to purchase such coverage) does not release Seller's liability hereunder or in any way modify or limit Seller's indemnification of McElroy. The failure to maintain insurance required in these Terms shall constitute a material breach of these Terms. All limits below are stated in U.S. Dollars.

Type of Insurance	Minimum Limits
Commercial General Liability (CGL) (Note: CGL minimum limits may be met with a combination of General Liability and Umbrella/Excess Liability policy limits)	$5,000,000 Per Occurrence, General Aggregate, Product and Completed Operations Aggregate, Personal and Advertising Injury
Automobile Liability covering all autos used in connection with work performed	$2,000,000 combined single limit covering property damage and bodily injury
Workers' Compensation	Statutory
Employer's Liability	$1,000,000 per employee, each accident/disease
Professional Liability (if applicable)	$1,000,000 each claim
Cyber Liability (required if Seller's Products access data or networks of McElroy or McElroy's customers)	$2,000,000 annual aggregate

• Seller shall provide, without exception, not less than thirty (30) days' advance written notice prior to any cancellation of insurance. Evidence of such cancellation notice appearing the Certificate of Insurance shall serve as proof of compliance.

18. Remedies

• The remedies herein reserved shall be cumulative and additional to any other or further remedies provided in law or equity. No waiver of a breach of any provision of these Terms or the Order shall constitute a waiver of any other breach, or of such provision. Seller shall be liable for all damages, direct and indirect, resulting from the breach of any of the terms and conditions herein contained.

19. Relationship of the Parties

• Seller and McElroy are independent contracting parties and nothing in these Terms or the Order will make either party the employee, agent, or legal representative of the other for any purpose. Nothing in these Terms or the Order grants either party the authority to assume or to create any obligation on behalf of or in the name of the other party. Seller will be solely responsible for all employment and income taxes, insurance premiums, charges or other expenses it incurs in connection with the performance of the Order. All employees, agents, and independent contractors of the Seller or its contractors are employees or agents solely of such Seller or such contractor, as the case may be, and not of McElroy, and are not entitled to employee benefits or other rights of any kind provided or offered to McElroy's employees.

20. Conflict of Interest

• Seller represents and warrants that its performance of the Order will not in any way conflict with any continuing interests or obligations of Seller or its employees, agents, or independent contractors. Seller further warrants that with the Order is in effect, Seller and its employees, agents, and independent contractors participating in the performance of the Order will refrain from any activities which could reasonably be expected to create a conflict of interest with respect to Seller's relationship with McElroy or its performance of the Order.

21. No Solicitation

• Except to the extent prohibited by law, Seller shall not, without the advance express written consent of McElroy, recruit or solicit any McElroy employee during the period of time when the parties are engaged in commercial activity and for a period of one (1) year thereafter. In the event of Seller's breach of this provision, McElroy may proceed against Seller by way of injunction or otherwise to restrain or prevent the continuance of such breach. In addition, in respect of each such breach (with each occurrence or repetition thereof constituting a separate breach event), Seller shall pay on demand to McElroy an amount equal to such employee's prior year's compensation as a reasonable estimate of damages, and not as a penalty, without prejudice to McElroy's right to claim, initiate legal proceedings for, and collect such greater amount of damages as may be sustained by McElroy. It is understood and agreed that this provision is reasonable and necessary for the protection of McElroy's business and is essential to these Terms.

22. Governing Law; Venue

• The construction and interpretation of these Terms and performance of any Order, including, without limitation, the resolution of any claims or disputes arising from, related to, or in connection with any Order, or the Products that are the subject of any Order, will be governed by the internal laws of the State of Oklahoma, without regard to or application of its principles or laws regarding conflicts of laws. The parties agree that the provisions of the United Nations Convention of Contracts for the International Sale of Goods of 1980 (and any amendments or successors thereto), and any conflict of laws provisions that would require application of another choice of law are expressly excluded. Any claim or dispute arising from, related to, or in connection with any Order, or the Products that are the subject of any Order (whether such claim is based upon breach of contract, tort, or other legal or equitable theory) shall be subject to the exclusive venue and jurisdiction of the state or federal courts located in Tulsa, Oklahoma. Seller hereby irrevocably waives any objection to jurisdiction or venue of any action instated hereunder and shall not assert any defense based on lack of jurisdiction or venue or based upon the doctrine of forum non convenience.

23. Entire Agreement

• These Terms and the Order constitute the entire agreement between the parties concerning the subject matter hereof (and thereof) and no revision or amendment shall be binding unless in writing and signed by an authorized representative of McElroy.