EMPIRE - EMCO, INC

PURCHASE ORDER

TERMS AND CONDITIONS

1.ACCEPTANCE - This purchase order ("Purchase Order') constitutes  Buyer's  offer to Seller and is a bonding contract on the terms and conditions set forth herein when it is accepted by Seller either by Buyer's receipt of the acknowledgment copy of this Purchase Order, signed by Seller, or the commencement of performance by Seller. This Purchase Order does not constitute an acceptance by Buyer of any offer to sell, quotation or proposal. By acceptance of the Purchase Order, Seller agrees to be bound by and to comply with all the terms and conditions contained herein. No term, condition, amendment or revision stated by Seller in accepting this Purchase Order shall be binding upon buyer if it is in conflict with, inconsistent with or in addition to the terms and conditions outlined herein, unless accepted by Buyer in writing.

2. PRICE  & TAXES -  Firm prices  specified  in the Purchase  Order which are accepted   by Seller shall not be subject to change without the prior written approval of buyer. Seller's total price shall be deemed to include all federal, state and local sales, use, excise, privilege, pay¬≠ roll, occupational and other taxes applicable to the articles furnished under this Purchase Order ("Articles), unless stated otherwise on the face of this Purchase Order. No extra charges of any kind will be paid to Seller by Buyer unless agreed to by Buyer in writing. If this Purchase Order is un-priced, Seller's total price shall not be greater than that last charged or quoted, per article, to Buyer by Seller. Seller agrees that any price reduction made by Seller for the Articles prior to the delivery of the Articles to buyer will be applicable to this Purchase Order. In the event that Seller's total price includes any tax applicable to the Articles  and  such tax, or any portion thereof, is hereafter refunded to Seller, upon receipt by Seller of such refund, Seller shall immediately pay Buyer the amount of such refund.

3. DELIVERY  -  Delivery shall be in strict accordance with the delivery schedule set out or referred to in this Purchase Order, and time is of the essence, unless otherwise agreed to by Buyer in writing. Goods shipped in advance of such delivery schedule may, at Buyer's option, be returned by Buyer to Seller at Seller's sole expense. In the event that Seller does not comply with such delivery schedule, Buyer, in addition to remedies provided by law, may, at  its option, approve a revised delivery schedule or may terminate this Purchase Order by returning the Articles to Seller at Seller's sole expense.

4. TERMS - Discount terms, if any, are based upon the assumption that invoices will be received by Buyer from Seller within ten (10) days from date of shipment, otherwise the discount is to be calculated from the date the invoice is received by Buyer, allowing five (5) days for transmission. No drafts for purchases will be honored unless provided for in the Purchase Order.

5. SUBCONTRACTING -  Seller shall obtain Buyer's written approval prior to  subcontracting this Purchase Order or any substantial portion hereof.

6. TITLE AND RISK OF LOSS - Both title to and risk of loss of the Articles shall pass the Buyer upon Buyer's acceptance of delivery of the Articles after receipt

7. PACKING AND SHIPMENT  Deliveries  shall be  made by the mode of   transportation specified in this Purchase Order without additional charge for boxing, crating or storage. In  the event that this Purchase Order does not specify the mode of transportation to be used, Seller shall ship the Articles by that mode which is least expensive and reasonable under the circumstances. In the event that the Seller fails to ship the Articles by the least expensive and reasonable mode, or as specified in the Purchase Order, Seller shall reimburse Buyer for any excess shipping charges paid by Buyer. Unless otherwise specified in this Purchase Order, the Articles shall be suitably packed to secure the lowest transportation cost in accordance with the requirements of common carriers. Material shall be described in bills of lading in accordance with current national mode of freight or uniform freight classification, whichever is applicable. Buyer's order numbers and symbols and identification numbers shall be plainly marked on all invoices, packages, bills of lading and shipping orders. Packing lists shall accompany each box or package shipment showing Buyer's order number, order symbol, item number and description materials. Buyer's counts or weight shall be final and conclusive on shipments not accompanied by packing lists. Shipping receipts or bills of lading shall be sent to Buyer on the date the Articles are shipped. The Articles shall be packed to assure against damage from weather or transportation.

8. INSPECTION - The Articles shall be subject to final inspection and acceptance by Buyer within a reasonable time after receipt at the designated destination, regardless of prior payment Buyer may reject any or all Article(s) that contains defective material  or workmanship or do/does not conform to specifications, samples or warranties. Any article so rejected may, at Buyer's option, be returned to seller, at Seller's risk and expense and at full invoice price (plus applicable transportation charges both ways and all of buyer's expenses relating to unpacking, inspecting, storing and repacking, or may be held by Buyer, at Seller's risk and expense, for disposition by Buyer after notice to Seller. No defective Article or material shall be replaced by Seller unless requested by Buyer in writing.

9. PAYMENT - Net payment for the Articles shall be thirty (30) days following receipt of such Articles at the destination designated by the Buyer or thirty (30) days following receipt by Buyer of an appropriate invoice, whichever event occurs later. Buyer shall have the right to set off or recoup any present of future claims that Buyer may have against Seller against amounts due for payment by Buyer to Seller

10.        WARRANTY - Seller represents, guarantees and warrants to Buyer that the Articles, material and/or services furnished under this Purchase Order will be free from defect or material and workmanship, will conform to applicable specifications, drawings, samples and/or descriptions furnished by Buyer, will be merchantable and fit for the use for which they are intended and to which they are normally put and for any special use(s) known by Seller to be contemplated by Buyer. Seller further warrants that it shall hold harmless, indemnify, and defend Buyer from and against any claim, suit, government action, loss, damage or expenses (including, without limitation, attorneys fees, cost and expenses in connection therewith) resulting from or arising out of Seller's breach of said warranties, buyer may retain its own counsel and participate in any such claim or suit for the further protection of Buyer's interest. Seller shall assign all manufacturers' warranties to Buyer and/or Buyer's vendee to the extent permitted by warranty terms. The warranties of Seller, together with its service guarantees, shall run to Buyer and/or Buyer's vendee.

11.        CHANGES -  Buyer may at any time by written order without prior notice make changes or additions to the general scope of this Purchase Order. If any such change causes  an  increase or decrease in the cost of or the time required for performance of this Purchase Order, Seller shall notify Buyer in writing immediately and an equitable adjustment will be made in the price or time of performance, or both, by written modification with thirty (30) days after Seller's receipt of notice of the change or within such other period as may be agreed on in writing by Buyer and Seller. Nothing herein shall excuse Seller from proceeding with this Purchase order as changed.

12.        ASSIGNMENT  -  The  assignment  of  any  right, title or interest in this Purchase   Order without the written consent of Buyer shall be wholly void and totally ineffective, except that Seller  may, with written consent of Buyer, assign claims form money due or to become    due

hereunder to a bank or other financial mst1tut1on. Buyer and Seller also agree that neither shall delegate any obligation which they have under this Purchase Order without the written consent of the other party and any attempted delegation without written consent shall be void. Any assignment consented to shall provide that payment to any assignee of such claims shall be subject to set off or recoupment for any present or future claims that Buyer may have against Seller and shall be valid only after Seller has supplied Buyer with a properly executed copy of the assignment.

13.        INDEMNITY - Seller shall perform all work and/or services hereunder in such a manner  as to guarantee the safety of persons and property. Seller shall hold harmless, indemnify and defend buyer against any and all damages, expenses, liabilities and losses of any kind whatsoever (including, without limitation, attorneys' fees, cost and expenses in connection therewith), when and as incurred, on account or by reason of injury to or death of a person whatsoever, or loss of or damage to any property whatsoever caused by, arising from, or related to the performance under this Purchase Order of Seller, its agents, employees of independent contractors, or the acts or failures to act, of Seller, its agents, employees of independent contractors. Seller shall hold harmless, indemnify and defense Buyer against  any and all damages, expenses, liabilities and losses of any kind whatsoever (including, without limitation, attorney's fees, cost and expenses in connection therewith), when and as incurred or account or by reason of injury to or death of any person whatsoever, or loss of or damage to any property whatsoever caused by, arising from or related to the Articles.

14.        CANCELLATION FOR DEFAULT - Buyer may cancel this Purchase Order or any part thereof by written notice to Seller if (a) Seller fails to make any delivery or perform any services in accordance with the specified delivery date or otherwise fails to comply in any way with this Purchase Order; (b) Seller fails to make progress to such an extent that performance hereto is endangered; (c) any proceeding is filed by or against Seller in bankruptcy or insolvency; or (d) any judgment or tax lien or warrant is entered against Seller. In the event that one or more of the aforementioned events occur, Buyer, in addition to remedies provided by law, may, at its option, purchase substitute Articles elsewhere and Seller shall be liable to Buyer for any excess cost thereby incurred by Buyer.

15.        TERMINATION FOR CONVENIENCE - Buyer may at any time by written notice to Seller terminate this Purchase Order or any part thereof at its convenience and for reasons other than default as contemplated by Paragraph 14 hereof. Upon such termination, Buyer shall have no liability to Seller for anticipated profits and/or overhead and/or loss on resale.

16.        COMPLIANCE WITH LAWS AND REGULATIONS -  Seller agrees that the Articles will  be produced and delivered and all work hereunder will be performed in accordance with all applicable statutes, laws, rules, regulations and executive orders of the United States government, New York State, and any state, political subdivision or unit of local government where either Buyer or Seller is located and Seller further agrees to indemnify, hold harmless and defend Buyer against any damages, expenses, liabilities and losses of any kind whatsoever (including without limitation, reasonable attorney's fees, cost and expenses in connection therewith), when and as incurred, by reason of Seller's violation of any such applicable statutes, laws, orders, rules or regulations, including, without limitation, those relating to patents, trademarks or copyright

17.        INSURANCE - Seller agrees, if and when requested by Buyer to procure and furnish satisfactory evidence of a policy or policies of insurance in form satisfactory to Buyer insuring all property on Seller's premises in which Buyer has a property (special property) interest against loss or damage resulting from fire (including extended coverage), malicious mischief and vandalism, and further to promptly procure and furnish satisfactory evidence  of contractual liability insurance coverage insuring Seller's obligation to Buyer under Paragraphs 13 and 16 of this Purchase Order.

18.        MERCHANT Seller hereby acknowledges that it is a merchant as such term is defined in the Uniform Commercial Code.

19.        CHOICE OF LAW - This Purchase Order shall be governed by and construed in accordance with the laws of the State of New York without reference to principles of conflict of laws, and, with respect to the Purchase Order, Seller consents to the jurisdiction and venue of the State of New York, County of Erie, unless such consent is otherwise prohibited.

20.        STATUTE OF LIMITATIONS -Any action arising out of or relating to this Purchase Order shall be commenced within one (1) year after the cause of action has accrued.

21.        ARBITRATION -  Any dispute or claim    arising out of or pursuant to this Purchase Order shall be submitted to binding arbitration in accordance with the expedited (or, if available, super-expedited) rules of the American Arbitration Association. The site of such arbitration proceedings shall be in Buffalo, New York. Except as otherwise expressly provided herein, judgment upon the award may be entered in any court having jurisdiction thereof. This Paragraph shall not limit either Party's right to obtain any provisional or equitable remedy, including, without limitation, injunctive relief from any court of competent jurisdiction, as may be necessary in the sole judgment of such Party to protect its rights. Neither Buyer nor Seller shall be afforded discovery in any such arbitration and all Parties shall be precluded from applying to any court for such discovery.

22.        EXPENSES - In the event of any arbitration proceeding or litigation pursuant to this Purchase Order, the prevailing Party shall be entitled to recover its reasonable costs, expenses and attorneys' fees from the non-prevailing party.

23.        COURSE OF PERFORMANCE. COURSE OF DEALING AND USAGE OF TRADE - In construing this Purchase Order, parole evidence of course of performance, course of dealing or usage of trade shall not be permitted.

24.        ENTIRE  AGREEMENT  -  this Purchase  Order,  with such  documents  as are expressly incorporated herein by reference, in intended by Buyer and Seller as a final expression of their agreement with respect to the subject matter herein and is intended also as a complete and exclusive statement of the Parties regarding the subject matter herein, and supersedes  all prior and contemporaneous negotiations, undertakings and agreements of the parties, whether written or oral, with respect to the subject matter herein.

25.        SEVERABILITY - If any part of the Purchase Order is found by an arbitrator or by a court of competent jurisdiction to be void and unenforceable, the remainder of this Purchase Order shall remain in full force and effect.

26.        MODIFICATION - This Purchase Order may no be discharged, abandoned, changed or modified in any manner except by an instrument in writing signed by Buyer and Seller.

27.        WAIVER  -  The failure  of  Buyer to enforce at any time the  provision  of this   Purchase Order shall in no way be construed to be a waiver by Buyer of such provision, nor in any way to effect the validity of this Purchase Order or any part hereof or the right of Buyer thereafter  to enforce each and every such provision. No waiver by Buyer of any breach of this Purchase Order shall be held to be a waiver of any other or subsequent breach.

28.        REMEDIES  -  The exercise  of  any  right  or  remedy  provided  herein  shall be  without prejudice to the exercise of any other right or remedy provided herein or by law.


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