1. General: These Purchase Terms and Conditions form a part defined or referenced as the Agreement.  In case of conflicts and discrepancies between Agreement and any other document, the parties’ intent shall be inferred from the Agreement document read as a whole and the most strict and stringent clause or requirement of any part of the Agreement shall control, unless specifically stated otherwise.  The Agreement reference will supersede all related documents, including but not limited to, invoices, packing slips, delivery receipts, and correspondence.
2. Acceptance: BUYER shall be bound by this Agreement when it commences any performance hereunder.  This Agreement expressly limits acceptance to the terms and conditions stated herein, including any and all attachments, exhibits, or other documents referenced.  SELLER’s conditions shall be deemed accepted in their entirety by commencement of any work hereunder or upon failure to notify SELLER in writing of exceptions within five (5) business days from date of issuance of this Agreement, whichever occurs first.
3. Termination for Convenience of BUYER. BUYER retains the right to suspend or terminate this Agreement or any part thereof for its sole convenience.  In the event of such termination, SELLER shall immediately stop all work hereunder, and shall immediately cause its suppliers or subcontractors to cease such work.  BUYER will be responsible for reasonable termination charge consisting of a percentage of the Agreement price reflecting the percentage of the work properly delivered prior to the notice of termination plus actual direct costs resulting from termination, including cancellation charges directly associated with costs for items that are in production at time of cancellation.  SELLER shall not be paid for any work done after receipt of the notice of termination which SELLER could reasonably have avoided, nor for any costs incurred by SELLER’s suppliers or subcontractors which SELLER could reasonably have avoided.
4. Termination for Cause: BUYER may also terminate this Agreement or any part hereof for cause in the event of any default by the SELLER or if the SELLER fails to comply with any of the terms and conditions of this Agreement.  Late deliveries, delivery of goods which are defective or which do not conform to this Agreement, and failure to provide BUYER upon request of reasonable assurance of future performance shall all be causes allowing BUYER to terminate this Agreement for cause.  In the event of termination for cause, BUYER shall not be liable to SELLER for any amount. The maximum liability on behalf of the Seller shall be the value of the purchase order or item, whichever is lower.
5. Proprietary Information, Confidentiality, and Advertising: BUYER shall consider all information furnished by SELLER to be confidential and shall not disclose any such information for any purpose other than performing this Agreement, unless BUYER obtains written permission from SELLER to do so.  This restriction shall apply, but not be limited to, articles, drawings, specification, or other documents prepared by SELLER for BUYER in connection with this Agreement.  SELLER shall not advertise or publish the fact that BUYER has contracted to purchase goods or services from SELLER, nor shall any information relating to the Agreement be disclosed without BUYER’s written permission. Unless otherwise agreed in writing, commercial, financial or technical information disclosed in any manner or at any time by SELLER to BUYER shall be deemed secret or confidential.
6. Costs Included in Price: Unless otherwise specified, the price stated on this Agreement includes all charges and expenses of SELLER, including but not limited to packing, boxing, cartage, and any and all applicable taxes of federal, state, local government including, but not limited to, duty, excise tax, sales and use tax, occupational tax, processing tax, and manufacturing tax. SELLER agrees to accept in lieu of any tax that may be included in this Agreement, a tax exemption certificate or other evidence acceptable to the federal, state or local government and to reduce the price stated herein by the amount of such exempt tax.
7. Liens or Claims: The SELLER has the right to file a lien on the Project, then to the extent of any payments made,. SELLER agrees as part of this Agreement, and for the consideration herein set forth, that SELLER will execute a general release waiving, upon receipt of final payment by SELLER, all claims, except those claims previously made in writing to BUYER and remaining unsettled at the time of final payment.
8. Affirmative Action: SELLER warrants that the goods and/or services covered by this Agreement will be produced in compliance with the requirements of applicable labor and employment laws, regulations, and orders.
9. Remedies: Each of the rights and remedies reserved by SELLER in this Agreement shall be cumulative and additional to any other or further remedies provided in law or equity or in this Agreement.
10. Assignments and Subcontracting: No part of this Agreement may be assigned or subcontracted without the prior written approval of SELLER.
11. Setoff: No claims for money due or to become due from BUYER shall be subject to deduction or set off by the BUYER by reason of any claim arising out of this or any other transaction without the prior approval of the SELLER.
12. Shipment: Delivery charges are the responsibility of the BUYER.   All freight will be shipped FOB Shipping point unless alternative agreements are assigned.
13. Delivery: Time is an important consideration of this Agreement.  Deliveries of goods and/or rendering of services are to be made both in quantities and at terms specified on the face hereof, or upon release schedules furnished against this Agreement.
14. Title, Risk of Loss and Storage: Unless otherwise stated in this Agreement, title to the goods shall pass from SELLER to BUYER and/or Owner upon shipment and initial receipt of the goods by carrier.  BUYER shall be responsible for loss or damage to work in transit and all goods to be furnished hereunder BUYER will be responsible for required storage of all goods if specified.    .
15. Applicable Law: The validity, interpretation and performance of this Agreement shall be governed and construed in accordance with the laws of the State of UTAH.
16. Compliance with Laws: In accepting this Agreement SELLER warrants that it has and will continue during the performance of this Agreement to comply with the applicable provisions of all federal, state and local laws and regulations including, but not limited to:

• Fair Labor Standards Act of 1938, as amended.
• The Equal Employment Opportunity clause in Section 202 of Executive Order (E.O.) 11246, as amended and the implementing rules and regulations (41 CFR) which are incorporated herein by reference, unless this Agreement is exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of E.O. 11246 or provisions of any superseding E.O.
• The Affirmative Action for Handicapped Workers Clause in (41 CFR, Part 60, Sub Section 741.4) and the implementing rules and regulations of the Department of Labor associated therewith which are incorporated herein by reference, unless this Agreement is under US$2,500.
• The Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era Clause (41 CFR, Part 60, Sub section 250.4) and the implementing rules and regulations of the Department of Labor associated therewith which are incorporated herein by reference, unless this Agreement is under US$10,000.

17. Notice: All notices required to be given hereunder shall be deemed to be duly given by person delivering such notice or by mailing it, via reregistered or certified mail as follows.  Notice to SELLER shall be at the address recorded on the face of this Agreement.  Notice to BUYER shall be to the address appearing on the face of the Purchase Document.
18. Savings: If any provision of this Agreement is determined to be unenforceable or in contravention of any applicable law, such provision shall be deemed modified to the minimum extent required to bring such provision into compliance with said law.
19. Entire Agreement: This Agreement, including as applicable SELLER’s proposal to the BUYER, constitutes the entire agreement between SELLER and BUYER and supersedes all prior or contemporaneous communications, representations, or agreements, oral or written, with respect to its subject matter. Any additional or different terms in SELLER’s terms or proposal are hereby expressly rejected.
20. INSURANCE AND CLAIMS.  If SELLER or its employees or agents come into Contractor’s premises or Project in connection with this Agreement, SELLER agrees to carry (i) Commercial General Liability Insurance covering personal injuries (including death), both in commercially reasonable amounts. SELLER further agrees to provide and maintain Workers’ Compensation, Insurance in conformity with the laws of the state in which such premises or Project is located and Employer’s Liability Insurance.
21. DISPUTE RESOLUTION.  Promptly after identification of a “claim” (a demand for monetary compensation or damages or time extension, arising from or relating to the Project), BUYER and SELLERS designated representatives shall meet and attempt to reach agreement upon a reasonable, compromise resolution of the claim. If any claim not involving the Owner remains unresolved after this attempt, BUYER & SELLER agree promptly to submit the matter to mediation by an experienced, mutually acceptable mediator within one hundred twenty (120) calendar days after the meeting of the parties’ representatives, unless the parties both agree upon a longer period of time. The parties mutually agree that the resolution of the Arbitration will be fully binding.  The parties shall share equally the mediator’s fee for the mediation.
22. Testing.  If quoted by Seller in writing and/or otherwise expressly agreed upon by the parties in writing as part of the order, Seller will conduct agreed upon tests and/or schedule agreed upon inspections/reviews by Buyer with respect to the Product. The test/inspection (if any) shall be at Buyer’s reasonable cost and risk. Unless specifically agreed otherwise in writing between the parties, the location of any such test/inspection (if any) shall be Seller’s (or Seller’s affiliates) applicable factory and the code/standards/criteria for the test/inspection shall be Seller’s normal applicable code/standards/criteria.
23. Warranty Seller warrants that (i) the delivered Product’s technical specifications substantially conform to the Product’s technical specifications agreed upon in writing between Seller and Buyer as part of the contract, and (ii) the delivered Product is free of defects in material and workmanship and title. The above-stated warranties shall expire fifteen (15) months from the date of shipment from Seller to Buyer or twelve (12) months from date of initial start-up of the Product, whichever expires last. The warranty expressly excludes consumables, wear items, and the effects of normal wear and tear.

If Products or services do not meet the above-stated warranties, Buyer shall promptly within the applicable above-stated warranty period notify Seller in writing. Seller shall (i) at its option, replace or repair defective Products and (ii) re-perform the defective portion of services.  If despite Seller’s reasonable efforts, the nonconforming Product cannot be replaced or repaired, Seller shall take back the nonconforming Product and refund or credit monies paid by Buyer to Seller for such nonconforming Product less a reasonable allowance for use. Replaced Products/parts become the property of Seller.  If despite Seller’s reasonable efforts, nonconforming service cannot be re-performed, Seller shall refund or credit monies paid by Buyer to Seller for the non-conforming portion of such service. Warranty repair or replacement or re-performance shall not extend or renew the applicable warranty period.

THE ABOVE-STATED WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES (written, oral, implied, or otherwise), AND ALL OTHERWARRANTIES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY AND ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED.  Correction of nonconformities (i.e. repair or replacement or refund or credit, all at Seller’s option, of Products that do not conform to the Product warranty above, and re-performance or refund or credit, all at Seller’s option, of service that does not conform to the service warranty above) as provided above set forth the exclusive remedies for claims (except as to title) with respect to any nonconforming Product or service whether a claim is based on warranty, contract, tort, or any other theory. Upon the expiration of the applicable above-noted warranty period, all such liability shall terminate and Buyer shall have a reasonable time, within 30 days after the warranty period, to provide notice of any defects which appeared during the warranty period. 

SELLER SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY CONSEQUENTIAL DAMAGES RESULTING FROM ANY NONCONFORMING PRODUCT OR SERVICE.

24. Indemnification by Seller. Seller shall defend, indemnify and hold Buyer harmless from and against any Claim brought by a third party to the extent (but not only to the extent) arising solely and exclusively out of the negligent or grossly negligent actions or omissions of Seller that directly cause (A) personal injury or death or (B) physical damage to tangible personal or real property.
25. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE, THE TOTAL LIABILITY, IN THE AGGREGATE, OF SELLER, ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS, EMPLOYEES AND AGENTSARISING OUT OF OR RELATED TO THE ORDER OR CONTRACT OR THE PERFORMANCE OR BREACH THEREOF OR THE PRODUCT OR SERVICE SHALL BE LIMITED TO THE ACTUAL PURCHASE PRICE AMOUNT PAID BY BUYER TO SELLER FOR THE SPECIFIC PRODUCT OR SERVICE GIVING RISE TO THE CLAIM, REGARDLESS OF WHETHER SUCH DAMAGES ARE CHARACTERIZED AS ARISING OUT OF BREACH OF WARRANTY, TORT, CONTRACT, OR OTHERWISE; however: (a) nothing in this paragraph shall limit Seller’s liability for personal injury (to the extent caused by the negligence of Seller, or its employee/agent/subcontractor), and (b) Seller’s total liability for physical damage to any tangible property other than the Product (to the extent caused by the negligence of Seller or its employee/agent/subcontractor) shall be limited to 100 of the price of the Products delivered hereunder by Seller to Buyer
26. NO CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING ELSE, UNDER NO CIRCUMSTANCES SHALL SELLER, ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS, EMPLOYEES OR AGENTS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF TOTAL OR PARTIAL USE OF PRODUCTS OR SERVICES, DOWNTIME COSTS, AND DELAY COSTS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE, REGARDLESS OF WHETHER SUCH DAMAGES ARE CHARACTERIZED AS ARISING OUT OF BREACH OF WARRANTY, TORT, CONTRACT, OR OTHERWISE
27. Equipment to be manufactured per the plans and specifications for the specific project outlined in the attached Quote / /Purchase Order.
28. Any quotation is legally binding upon us only after you have received a written acceptance from us of any order from you based on that quotation and we can at any point in time withdraw our quotation.  
    By placing the order you certify that the order will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons, nor any other purpose prohibited by applicable law.
    Furthermore, you certify that you will comply with applicable local and international foreign trade and customs requirements or any embargos or other sanctions.
    You will immediately notify us in writing of any breach of this statement.
    We shall not be obligated to fulfill a binding order or agreement or any part thereof or related to it, nor liable for its non-fulfillment, if such fulfillment is prevented by any impediments arising out of applicable local and/or international foreign trade and customs requirements or any embargos or other sanctions.
    We shall have the right to terminate a binding order or agreement or any part thereof or related to it, with immediate effect and without prior notice, if fulfillment is prevented by any impediments arising out of applicable local or international foreign trade and customs requirements or any embargos or other sanctions.
    The customer shall indemnify us for any direct or indirect damages arising in consequence of any breach of this statement

HQ Mailing address:
C.H. Spencer LLC
PO BOX 26066
Salt Lake City, UT 84126

801-975-0300

9/29/2017