Celadon Standard Terms and Conditions of Purchase

    1. Purchase orders may only be issued by an authorized representative of Celadon’s purchasing department. Acceptance of this order by Seller is expressly limited to the terms and conditions contained in this order. Any term or condition stated by the Seller in any prior proposal, on Seller’s acknowledgement form, or other form otherwise acknowledging or accepting this order is deemed by Celadon to be a Product alteration of this order and is hereby objected to by Celadon. Any such term or condition shall be totally inapplicable to this order unless specifically agreed to in writing signed by an authorized representative of Celadon. Acceptance of the goods or services covered by this order will not constitute acceptance by Celadon of Seller’s terms & conditions. Any of the following acts by Seller shall constitute acceptance of this order and all of its terms and conditions: signing and returning a copy of this order; delivery of any of the goods ordered; informing Celadon in any manner of commencement of performance or returning Seller’s own form of acknowledgement.
    1. Seller shall furnish the goods covered by this order (the “Goods”) or the services covered by this order (the “Services”) in accordance with the prices and delivery schedule stated on the face of this order. If prices and/or delivery dates are not stated, Seller shall offer its lowest prices and best delivery dates, both of which shall be subject to written acceptance by Celadon. Seller warrants that the prices charged for the Goods or Services ordered are as low as the lowest prices charged by the Seller to any customers purchasing the same or similar goods or services. Seller agrees that Celadon may inspect and audit Sellers records to ensure compliance with this provision. Such audit shall be at Celadon’ cost and expense, unless the audit determines non-compliance with these terms and conditions, in which cases, in addition to any other rights and remedies available to Celadon, Seller shall reimburse Celadon for its out of pocket costs and expenses incurred in connection with the audit. Prices stated include all delivery and stocking charges and any applicable federal, state and local taxes in U.S. dollars. Shipments may be up to two (2) days early and zero (0) days late to be considered on time. Celadon may return, or store at Seller’s expense, any Goods delivered more than two (2) days in advance of the delivery date specified for such Goods. Time is of the essence.
    1. No charge shall be made by Seller for packaging or storage. All Goods shall be packaged, marked and otherwise prepared in accordance with good commercial practices to obtain lowest shipping rates. Seller shall mark on container(s) handling and loading instructions, country of origin, shipping information, order number, item and account number, shipment date, and names and addresses of Seller and Celadon. An itemized packing list shall accompany each shipment.
    1. This Purchase Order is governed by INCOTerms 2000. Unless otherwise specified on the face of this order and agreed to by both parties, the INCOTerm shall be as follows: When the INCOTerm is “DDP, destination facility” Seller shall bear all risk of loss or damage to the Goods, and title shall not pass to Celadon until delivery of the Goods is made to the destination Celadon’ location or other place designated by Celadon. When DDP is designated, export and import licenses/clearances, and all charges including Customs’ fees, duties, and taxes (when applicable), freight and inland charges are the sole responsibility of the Seller. If domestic, title transfers once delivery is made to Celadon’ named destination facility, and all charges are the sole responsibility of the Seller. When the INCOTerm is “FCA origin” or “FCA, Celadon’ designated carrier” at origin, Seller shall bear all Risk of loss or damage to the Goods, and title to the Goods until delivery is made to the final destination Celadon’ location or other places designated by Celadon. When either FCA term is designated, export licenses/clearances, and all inland charges to the port of export, are the sole responsibility of the Seller. Celadon will be responsible to contract carriage and pay for freight charges. Celadon is responsible for Customs Clearance, as well as any associated Customs fees, taxes and any duties. If domestic, title transfers once clean delivery is made to the Celadon’ named destination facility. In the event Celadon requests the Seller to transfer, export, re-export or move the goods to a third destination, whether domestic or international, risk and title shall pass to Celadon once goods are delivered to the named final destination. All export and import licenses, fees, taxes, duties, freight charges, and other related costs will be the responsibility of the Seller to the named final destination ” DDP destination facility.” Seller shall promptly notify and provide Celadon with necessary or applicable supporting documents, permits, approvals, or information required to comply with export or import regulations and/or Celadon policy, including manufacturer’s affidavit, certificate of origin, manufacturer’s safety data sheet, and others. Failure to comply with applicable laws which result in additional fees, penalties, or cost to Celadon or its affiliates, will be reimbursed by the Seller within 30 days of any such request by Celadon or its affiliates. Transfer, export, re-export or import of Product, software, or technology may require an approved government license, permit, or other authorization from the applicable government(s). Seller shall comply with all applicable import and export laws, restrictions, and regulations of the United States and all other applicable foreign governments, except insofar as these laws conflict with the United States laws. Diversion contrary to United States law prohibited.
    1. Unless otherwise stated on the face of this order, all payment terms are Net 45 days from date of shipment. After each shipment made or service provided under this order, Seller shall send a separate invoice, in duplicate, that includes item numbers, and is accompanied by a bill of lading, express receipt, or other proof that Goods were delivered or Services were performed. Payment of invoice shall not constitute acceptance of the Goods or Services and shall be subject to appropriate adjustment for failure of Seller to meet the requirements of this order. Celadon may set off any amount owed by Seller, or any of its affiliated companies to Celadon against any amount owed by Celadon to Seller under this order.
    1. All Goods may be inspected and tested by Celadon, its customers, higher tier contractors, and the U.S. Government, at all reasonable times and places. If such inspection or testing is made on Seller’s premises, Seller shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests. In its internal inspection and testing of the Goods, Seller shall use an inspection system accepted by Celadon in writing. All inspection records relating to the Goods shall be available to Celadon during the performance of this order, and for such longer periods specified by Celadon in its acceptance of the inspection system.
    2. Final inspection and acceptance by Celadon shall be at destination unless otherwise specified in this order. Such inspection shall be in accordance with the customary established inspection procedures of the location of Celadon where the Goods are received. If rejection of a shipment would result from Celadon’s normal inspection level under such procedures, Celadon may, at its option, conduct an above-normal level of inspection, up to 100% inspection, and charge the Seller the reasonable costs thereof.
    3. If Goods are rejected after further inspection, Seller shall provide replacements, modifications, associated service calls or other acts or items required to remedy such defect or violation promptly and at no cost to Celadon. Celadon shall notify Seller to obtain a Return Material Authorization (RMA) number and will debit the Seller for the cost of the goods being returned plus shipping expense. Supplier shall re-invoice Celadon after the repaired or replacement Goods are shipped to Celadon. Celadon may request, in lieu of this remedy, a full refund , including any applicable transportation costs.
    1. Celadon shall have the right, at no additional charge, to use and/or reproduce the Seller’s applicable literature, such as operating and maintenance manuals, technical publications, prints, drawings, training manuals, and other similar supporting documentation and sales literature. Seller shall provide Celadon with timely updated information relative to the foregoing literature and documentation.
    1. Seller hereby represents and warrants that all Goods provided hereunder shall (1) conform to any specifications, performance standards, schedules and other requirements applicable thereto, (2) operate substantially error-free and in accordance with applicable documentation , and (3) be free from defects in material and workmanship. Seller hereby represents and warrants that all Services provided hereunder shall (1) conform to any specifications, performance standards , schedules and other requirements applicable thereto, and (2) be performed in a workmanlike manner in accordance with industry standards for quality and workmanship. Seller hereby represents and warrants that Celadon’ use and enjoyment of all Goods and Services provided hereunder does not and will not infringe or misappropriate any patent, trademark, trade secret, copyright, or other proprietary right of any third parties.
    1. Seller shall indemnify Celadon against any and all costs, loss and liability for all personal injury and property damage caused by the Goods or Services performed by Seller (whether performed on the premises of Seller or Celadon or otherwise), and shall defend at its sole cost and expense any action brought against Celadon as a result of any such personal injury or property damage. Seller shall carry and maintain insurance coverage satisfactory to Celadon to cover the above, and, upon Celadon request, shall furnish Celadon with evidence of such insurance in a form satisfactory to Celadon.
    1. Seller shall indemnify and defend Celadon and its affiliates, distributors, customers and end-users (“Celadon Parties”) in any suit or proceedings brought against any Celadon Parties based on or related to a claim that any Goods or Services delivered or provided hereunder infringes or misappropriates any patent, trademark, trade secret, copyright, or other proprietary right of any third parties (the Claim). Seller shall pay all losses, liabilities, damages and costs awarded therein against any Celadon Parties arising out of or in connection with any such Claim. Without limiting its indemnification rights hereunder, Celadon may cancel any or all of the unfilled portion of this purchase order and may return to Seller for full credit the unused portion of any Goods delivered pursuant to it if it has reason to believe that the Goods or Services hereunder may infringe or misappropriate any third party’s intellectual property rights. Seller is not obligated to indemnify or defend any Celadon Parties against charges of infringement or misappropriation of any patent, trademark, trade secret, copyright or other proprietary right to the extent directly resulting from Seller’s required compliance with written specifications furnished by Celadon, other than performance specifications, for the design of the Goods or Services if such infringement cannot be avoided by Seller in complying with such specifications.
    1. Seller agrees not to manufacture, re-design, quote or sell any product that is of Celadon’ design, or is intended for use in Celadon’ Original Equipment, in whole or part, without prior written authorization of Celadon.
    1. Seller shall not assign this order or any rights or delegate any obligation under this order without the prior written consent of Celadon, and no purported assignment by Seller shall be binding on Celadon without such written consent.
    1. Whenever an actual or potential labor dispute delays, or threatens to delay, the timely performance of this order, Seller shall immediately notify Celadon in writing of all relevant information with respect to such dispute .The foregoing does not release or waive Seller’s obligation to timely deliver Goods and Services ordered hereunder.
    1. Seller shall not make any modification, revisions, engineering changes, etc. that affect the form, fit or function of the Goods including but not limited to: size, shape, color, function, electrical requirements, cooling, maintainability, compatibility, interchangeability, reliability or safety agency approvals without prior written approval from Celadon. Seller shall not subcontract for components, processes or completed or substantially completed items supplied to Celadon without prior written approval from Celadon. Seller shall notify Celadon in writing of any change of sub-tier suppliers of critical components of the Goods covered by this order.
    1. Celadon may, at any time, by written change order, suspend performance of this order, in whole or in part, make changes in the drawings, designs, specifications, method of shipment or packing, or time or place of delivery of the Goods, reschedule the Services, or require additional or diminished Goods or Services. If any such change causes a material increase or decrease in the cost of, or the time required for, performance of this order, Seller must respond with a schedule to implement requested changes within five (5) business days of receipt of Celadon’ change order. In the event that Celadon accepts Seller’s requested changes, this order shall be modified in writing accordingly. Any claim for adjustment under this section may, at Celadon’s option, be deemed to be absolutely and unconditionally waived unless asserted in writing (including the amount of the claim) and delivered to Celadon within five (5) days from the date of receipt by the Seller of the change order. If the cost of property made obsolete or excess as a result of a change is paid by Celadon, Celadon may prescribe the manner of disposition of such property. Celadon’ engineering and technical personnel are not authorized to change the Goods or Services ordered or any other provision of this order. No change order will be binding on Celadon unless issued by an authorized representative of Celadon’ purchasing office. Nothing in this section shall excuse Seller from proceeding with the order as changed.
    1. If production of any Goods is to be permanently discontinued at any time within eighteen (18) months after final delivery of such Goods under this order,Seller shall give Celadon, at least eighteen (18) months prior written notice of such discontinuance, during which time Seller shall accept orders from Celadon for a reasonable quantity of such Goods.
    1. Seller shall not make or authorize any news release, advertisement, or other disclosure which shall deny or confirm the existence of this order without the prior written consent of Celadon, except as may be required to perform this order. Celadon’ purchases, pricing, requirements, specifications, the Goods and Services provided hereunder and all other information related to Celadon or its business shall be treated as confidential information and shall not be used or disclosed by Seller for any purpose other than fulfilling this order and any actions reasonably related or necessary thereto. Any confidentiality or non-disclosure agreement between the parties shall apply to any applicable disclosures hereunder.
    1. Without cause, Celadon may terminate, for its convenience, all or any part of this order at any time by written notice to Seller. Seller shall confirm cancellation within seventy-two (72) hours of receipt of cancellation notice. Failure to respond will not affect the effectiveness of such termination. Upon such termination, settlement shall be made in accordance with the principles contained in Federal Acquisition Regulations (FAR) 52.249-2 as in effect as of the date of this order, except that Seller must submit any written termination claim to Celadon within forty-five (45) days after the effective date of termination, or such claim shall be absolutely and unconditionally waived.
    2. With Cause, If Seller fails to make delivery of the Goods, or fails to perform the Services, in accordance with the delivery dates specified in this order, or fails to make progress as to endanger performance of this order in accordance with the terms, and does not cure such failure within two (2) business days after notice from the Celadon, Celadon may (in addition to any other right or remedy provided by this order or by law) terminate all or any part of this order by written notice to Seller, without liability and purchase substitute goods elsewhere, and Seller shall be liable to Celadon for any excess cost occasioned Celadon thereby. Seller shall continue performance of this order to the extent not terminated pursuant to this Section 18(b) If this order is terminated as provided in this Section 18(b), Celadon ,in addition to any other rights provided herein, may require the seller to transfer title and deliver to Celadon (i) any completed Goods, and (ii) any partially completed Goods and all related parts, tools, dies, jigs, fixtures, plans, drawings, information, and contract rights as the Seller has specifically produced or specifically acquired for the performance of this order.
    3. Force Majeure. Seller shall not be liable to Celadon if, but only to the extent, the failure to perform this order arises out of causes beyond the control and without the fault or negligence of the Seller and/or their subcontractor. Seller shall notify Celadon by telephone or by the timeliest means otherwise available and will confirm in writing, within two (2) business days of the inception of such delay, and describe in reasonable detail the circumstances causing such delay. Seller’s deadline to deliver any Goods or perform any Services hereunder shall be tolled for the duration of such delay, not to exceed [thirty (30) calendar days]. If the delay is likely to last longer than thirty (30) days, Seller shall be responsible for delivering substitute or interim Goods and Services by the end of such thirty (30) day grace period.
  19.  WAIVER
    1. The failure of Celadon to insist upon the performance of any provision of this order, or to exercise any right or privilege granted to Celadon under this order, shall not be construed as waiving such provision or any other provision of this order, and the same shall continue in full force and effect.
    1. If any provision of this order is found to be illegal or otherwise unenforceable by any court or other judicial or administrative body, the other provisions of this order shall not be affected thereby, and shall remain in full force and effect.
    1. The validity, performance and construction of this order shall be governed by the laws of the State of Minnesota without regard to its choice of law provisions.
    1. Any dispute arising under this order which is not disposed of by agreement of the parties, shall be decided by a court of competent jurisdiction. The parties agree to the jurisdiction of all federal and state courts in Minnesota and agree that venue lies exclusively in Dakota County, Minnesota. Pending settlement of final decision of any such dispute, Seller shall proceed diligently with the performance of this order in accordance with Celadon direction. Any dispute or proceedings related to this order shall not waive or otherwise release Seller from its obligation to perform under any other order then in effect between the parties.
    1. This order, and any supplemental sheets and riders annexed hereto by Celadon, contains the complete and entire Agreement between the parties as to the subject matter hereof, and replaces and supersedes any prior or contemporaneous communications, representations, or agreements, whether written or oral, with respect to such subject matter. In the event this Order is being issued under the terms of a master agreement, the “Order of Precedence” in the Master Agreement shall prevail.

(End of Terms and Conditions)