Subject to the terms and conditions stated herein and on the order (including all drawings, specifications and other documents attached to or referred to in any order), Supplier agrees to sell and Buyer agrees to purchase from Supplier, the goods and/or services described in the order. Supplier shall acknowledge receipt and acceptance of each order or release within three (3) business days; however, if for any reason Supplier shall fail to return to the Buyer the signed acknowledgement copy of the order, any conduct by Supplier which recognizes the existence of a contract pertaining to the subject matter of the order shall constitute unqualified acceptance by Supplier of the order and all of its terms and conditions, including the terms herein. The terms of the order, including the terms herein, shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may be modified only by written instrument executed by the authorized representatives of both parties. Any terms proposed by the Supplier which add to, vary from or conflict with the terms of the order, including the terms herein, are hereby objected to. If the order has been issued by Buyer in response to Supplier’s offer, and if any of the terms on the order or herein are additional to or different from the terms of such offer, then the issuance of the order by Buyer shall constitute an acceptance of such offer, subject to the express condition that the terms of the order and the terms herein constitute the entire agreement between Buyer and Supplier with respect to the subject matter hereof and the subject matter of such offer. Further, Supplier shall be deemed to have so assented and acknowledged unless Supplier notifies Buyer to the contrary in writing within seven (7) calendar days of receipt of the order.
Any reference by Buyer to Supplier’s proposal is solely for the purpose of incorporating the description and specifications of the goods and/or services contained therein to the extent that such description and specifications do not conflict with the description and specifications on the face of the order.

1 Each of Micrometirics and any of its parent companies, affiliates or subsidiaries shall be entitled to exercise all rights and/or benefits afforded to the “Buyer” pursuant to these Standard Terms and Conditions ofPurchase – Goods.

The price for the goods and/or services shall be the price as shown on the order.
The Supplier warrants that the agreed price is not less favorable than that currently extended to any other buyer for the same or like goods in equal or lesser quantities.

Unless exempt therefrom, all duties and taxes which Supplier is required by law to collect from Buyer are included in the price stated on the order; any such items included in the prices or otherwise payable by Buyer shall be separately identified on Supplier’s invoice. Supplier shall not collect taxes on the supply of goods or services pursuant to the Order or Agreement in case and under circumstances where (i) the transaction is not subject to taxes, (ii) the liability for payment of taxes is shifted or reversed by law or statute or otherwise is the legal responsibility of the Buyer, on condition that Buyer provides to the Supplier satisfactory evidence that the payment of taxes is the legal responsibility of the Buyer or (iii) Buyer has been authorized to pay taxes directly to the appropriate tax authority.

Unless otherwise agreed in writing, invoices are paid net Forty Five Days (45) days from the later of (i) date of receipt of an accurate invoice or (ii) date of receipt of the goods/services – and not on the basis of Supplier’s invoice date. Supplier shall issue invoices in accordance with the Buyer’s instructions, which may include designated system, format, and process. All invoices must contain the following information: purchase order number, Micromeritics part number, Manufacturer’s part number, description of items, sizes, quantities and unit prices. Payments of invoices shall be subject to adjustment for shortages, defects and other failures of Supplier to meet the requirements of the order. Buyer may make payment electronically or by check, provided such check is honored upon presentment by the “Payor Bank.” Buyer shall have the right to reduce and set-off against amounts payable hereunder any indebtedness or other claims which Buyer may have against Supplier however and whenever arising. Buyer shall not be obligated to pay for any goods or services if the invoice for such goods or services is received more than twelve (12) months after the receipt of the goods or performance of the services.

Unless otherwise agreed in writing, the goods shall be delivered to Buyer assembled, completed, and ready for use, and the Buyer shall accept delivery of such goods or performance of any required services at the location designated on the order.
The obligation by Supplier to meet the delivery or performance date is material and TIME IS OF THE ESSENCE. Upon request, Supplier shall give Buyer advance notice of when shipments will be made. Delivery of goods or performance of any required services is not complete until goods or services have been actually received and accepted by Buyer.

Supplier warrants to Buyer and its affiliates, its successors, assigns, customers and users of the goods sold by Buyer that all goods provided hereunder shall be (i) merchantable; (ii) new; (iii) free from defects in material and workmanship; (iv) free from defects in design, except to the extent the goods are designed by Buyer; (v) in compliance with all applicable specifications, drawings, and performance requirements; (vi) fit for the purpose intended; (vii) free from liens and encumbrances on title; and (viii) free from infringement of third party intellectual property. Delivery, inspection, test, acceptance or use of, or payment for the goods furnished hereunder shall not affect Supplier’s obligation under this warranty, and such warranties, and all other warranties, express or implied, shall survive delivery, inspection, test, acceptance, payment, and use for a period of Twenty Four (24) months beginning on the later of the date of installation of Buyer’s product containing the goods, or the date goods are delivered as a warranty repair or replacement. If defects are identified before shipment to Buyer’s customer, and provided Buyer elects to provide Supplier with the opportunity to make the repair or provide the replacement. Supplier agrees, at Buyer’s option, to correct defects in or replace any goods not conforming to the foregoing warranty promptly, but in no event, will repair or replacement and delivery be completed more than ten (10) days from notice of such nonconformity by Buyer. A written notice specifying that such goods are corrections or replacements shall accompany deliveries of corrected or replaced goods. In the event that Supplier fails to correct defects in or replace nonconforming goods promptly, Buyer, after reasonable notice to Supplier, shall have the right to correct or replace such goods and charge Supplier for the cost incurred by Buyer in doing so, such right to include, without limitation, Buyer’s right to deduct or offset. If defects are identified after shipment to Buyer’s customer, goods may be scrapped, retained, or held for Supplier’s disposition, at the discretion of Buyer’s customer. Supplier shall promptly reimburse Buyer for any expenses or damages incurred by Buyer regardless of the nature of such expenses or damages as a result of or relating to Supplier’s failure to comply with (i)–(viii) above, including but not limited to repair, replacement, rework, removal and reinstallation costs, shipping costs, production delays, payment withholds, field service costs, recall costs, administrative costs and costs of filing and complying with legal and regulatory requirements, including but not limited to those of agencies such as the Consumer Product Safety Commission. If services or technical data are to be provided by Supplier hereunder, Supplier warrants to Buyer that such services and/or technical data have been performed or prepared in a professional and workmanlike manner and in. compliance with Buyer’s instructions or other requirements. Supplier further warrants that it has the requisite power, authority and ability to execute, deliver and perform its obligations hereunder

All goods sold by Supplier to Buyer pursuant to the order shall conform to Buyer’s quality standards and requirements set forth in any specifications, drawings, samples or other document upon which the order is based. Buyer, without prejudice to any other rights or remedies, including the right to inspect goods after delivery, shall have the right at all times to inspect and test the goods during manufacture or processing or while stored under Supplier’s control. Supplier shall not make any changes during the term of the order in the quality, in the location of manufacture, or in Supplier’s processes related to the goods without prior notification to and written acceptance of such changes by the Buyer. Any accepted changes shall become the controlling standard of quality for the remaining term of the order.

Supplier shall defend, indemnify and save harmless Buyer, Buyer’s customers, affiliates, insurers, and their respective employees, officers, directors, representatives and agents (together, the “Buyer Indemnitees”) from and against any and all claims, allegations, suits, demands, proceedings, judgments, awards, losses, liabilities, damages, penalties, fines, assessments, costs or expenses (including attorneys’ fees) of any kind or nature (collectively, “Damages”), relating to, arising out of, or caused by Supplier’s breach of warranty, breach of contract, fraud, negligence or willful misconduct. Supplier will further indemnify, defend, and hold harmless the Buyer Indemnitees as well as any sublicensees,
subcontractors, and each subsequent buyer or user from and against any Damages rising from any potential or actual claim, suit, injunction, action, proceeding, or investigation alleging infringement or violation of any Intellectual Property rights or license, including that arising from use of software, related to the manufacture, use, sale, offer for sale, import, or other exploitation of any goods delivered or services performed in connection with any order. If any goods or services, in whole or part, constitute or may constitute infringement or misappropriation of any third party’s Intellectual Property rights, or if Buyer’s or Buyer’s affiliates’ use thereof is or may be enjoined, Supplier, in addition to its indemnification obligations, will promptly : (i) secure the rights to continue using the infringing goods, or (ii) re-perform the services or replace the goods with comparable non-infringing goods, or (iii) modify the goods so that they become non-infringing without loss of functionality and within a time acceptable to Buyer, or (iv) at Buyer’s option, accept return of the goods and refund of the purchase price. Supplier shall reimburse Buyer for Buyer’s costs incurred in obtaining all internal, external and Buyer’s customer approvals, qualifications, certifications, and the like, necessary for making, using, providing and selling alternate non-infringing goods. Unless the infringement is otherwise successfully mitigated in accordance with clauses (i) – (iv) of this Section 9, Supplier shall refund to Buyer the purchase price of any such goods that Buyer is prohibited from providing, using, selling, offering for sale, importing, exporting, or otherwise exploiting.

If directed by Buyer, Supplier shall take upon itself the defense and/or settlement of all such claims, suits, actions or legal proceedings for which Supplier is obligated to provide indemnification in accordance with Section 9 above, and the defense of any suit, suits or legal proceedings of any kind brought to enforce such claim or claims, and to pay all judgments entered in such suit, suits or legal proceedings, and all attorneys’ fees and other expenses. Supplier agrees that in any instance where such claims in any way affect Buyer’s interest under the order or otherwise, Supplier shall not consummate any settlement without Buyer’s prior written consent. Supplier’s covenants of indemnity herein shall continue in full force and effect notwithstanding the termination or expiration of the order.

Buyer may inspect all goods at any time, including during manufacture at the Supplier’s facility. Such inspection may at Buyer’s option include confirmation of Supplier’s compliance with all requirements of the order. At no additional cost to Buyer, Supplier will permit Buyer and/or its designees access to Supplier’s facilities at all reasonable times and will provide all tools, facilities and assistance reasonably necessary for such inspection and/or confirmation. All goods are subject to final inspection and acceptance at any time after delivery to Buyer. Buyer, without prejudice to any other rights or remedies, shall have the right to reject defective goods and, at Supplier’s risk (notwithstanding the terms of delivery) and expense, return the same to Supplier or dispose of the same according to Supplier’s instructions. Payment or transfer of title shall not constitute acceptance. Buyer may return any non-conforming goods to Supplier for reimbursement, credit, replacement or correction as Buyer may direct, or Buyer may correct and/or replace such goods at Supplier’s expense. If Supplier fails to correct or replace non-conforming goods, per Buyer’s direction, in a timely manner, Buyer may cancel the order as to all such goods, and in addition, may cancel the then remaining balance of the order. Any goods rejected by Buyer will be held by Buyer temporarily at Supplier’s risk and expense.
Supplier will not tender goods for acceptance unless any former rejection or requirement of correction is disclosed. Supplier will reimburse Buyer for any packaging, handling and transportation costs Buyer incurs with respect to rejected goods. Buyer may revoke its acceptance of goods at any time, whether or not a substantial modification to the goods has been made, if Buyer finds a previously undiscovered defect in the goods which materially affects form, fit or function or substantially impairs the value of the goods to Buyer.

Buyer shall have the right at any time prior to the delivery date of the goods or services to make changes in drawings, designs, specifications, packaging, time and place of delivery, nature and duration of services, and method of transportation. Within ten (10) days after receipt of a change notice, Supplier shall notify Buyer of its proposed pricing for the change, including a cost breakdown and substantiation for the change, whether by way of increase or decrease, and the parties shall negotiate an equitable adjustment in the corresponding prices.

In addition to its other rights hereunder, Buyer reserves the right to cancel the order or any part thereof without further cost or liability if Supplier breaches any of the provisions of the order, or if Supplier becomes insolvent or the subject of any proceeding under the law relating to bankruptcy or the relief of debtors. Buyer further reserves the right to terminate the order or any part thereof for the sole convenience of the Buyer. If such termination right is invoked, all reasonable costs incurred up to the date of termination of the order will be reimbursed, provided Supplier establishes an entitlement thereto. Buyer may terminate immediately if Supplier or any of its directors, officers, or employees becomes for any reason persona non-grata in the jurisdiction where work is performed or to any government, government official, or Supplier fails or refuses to cooperate with any Buyer audit or investigation; or, as applicable, fails to comply with laws or regulations applicable to U.S. federal government contracts. In such circumstance, Buyer shall be: (i) relieved of its obligation to make further payments to the Supplier; and (ii) entitled to recover damages arising from such breach.

Prior to a potential change in control of Supplier and at least ninety (90)days prior to the proposed effectiveness of such change in control, Supplier will promptly notify Buyer in writing thereof and provide the identity of the potential new controlling party and information on such party and the transaction as Buyer may request, consistent with applicable law and confidentiality restrictions. To the extent permissible by applicable law, Buyer shall have the right to (i) require Supplier to obtain a guarantee from the new controlling party, and (ii) extend the term of this Agreement for up to an additional thirty- six (36) months, under the pricing and other terms and conditions contained herein, by providing written notice thereof to Supplier. In addition, in the event there is a change in control with respect to Supplier, or in the event that any of Buyer’s direct or indirect competitors acquires an interest, whether direct or indirect, in Supplier, Buyer shall have the right to terminate the order in whole or in part upon thirty (30) days written notice with Buyer’s only obligation being to pay for those conforming goods and services actually received prior to the expiry of such thirty (30) day period. If Buyer chooses to terminate the order under this provision and the remaining term is in excess of six (6) months, Supplier shall, at no additional charge to Buyer, provide to Buyer a worldwide, perpetual, non-exclusive, fully paid, irrevocable, license, with a right to grant sublicenses, to Supplier’s information, data, knowhow, and other Intellectual Property, including proprietary and manufacturing information, to the extent necessary to enable Buyer to make, have made, use, sell and license the goods, and assist and compensate Buyer for the costs associated with transitioning to another supplier, or Buyer assuming the production of the goods itself, protecting the tooling and other equipment necessary for production of the goods, and taking other reasonable steps to ensure the goods are produced without interruption according to Buyer’s specifications. A change in control of Supplier is deemed to have occurred if there is either (a) a change in the beneficial ownership of Supplier, either directly or indirectly, of 25% or more; provided, that, any change, of any amount, in the beneficial ownership of Supplier, either directly or indirectly, which involves a direct or indirect competitor of Buyer shall be deemed a change in control; or (b) a change in Supplier’s current (as of the effective date of the order) corporate governance regime, whether direct or indirect, with respect to decision-making on financial and / or operational policies and/or actions of Supplier.

14.1 At any time, if Buyer, in its reasonable discretion, believes that Supplier may not have the ability, for any reason, to continue performing the order, including any material change to Supplier’s financial condition, balance sheet, or its credit or similar rating, Buyer may request written adequate assurances from Supplier of its ability, desire and intent to continue performing. Buyer will specify the nature of its concerns, and Supplier will provide Buyer with financial or other information as requested by Buyer. Further, Supplier will immediately notify Buyer in the event Supplier believes it may be unable to pay its debts when due or there is a material change in Supplier’s financial position, balance sheet or its credit or similar rating.

All tools, equipment dies, gauges, models, drawings or other materials furnished by the Buyer to Supplier or made by Supplier for the purpose of the order or paid for by the Buyer, and all replacements thereof and materials fixed or attached thereto, shall be and remain the property of the Buyer. All Buyer’s property and, whenever applicable, each individual item thereof, will be plainly marked and otherwise adequately identified by Supplier as “Property of Micrometirics” (or as otherwise directed by Buyer), and will, at Supplier’s expense, be safely stored (separate and apart from Supplier’s property whenever practicable) and will be kept free of all liens, claims, encumbrances and interests of third parties. Supplier will not substitute any property for Buyer’s property, will not deliver or make available to any third party any of Buyer’s property or any property or goods developed, manufactured or created with the aid of any of Buyer’s property and will not use any of Buyer’s property or any property or goods manufactured, developed or created with the aid of Buyer’s property, except in filling the orders of Buyer. Upon completion of the order, or upon the written request of Buyer at any time, Supplier will prepare all Buyer’s property for shipment and deliver such property to Buyer in the same condition as originally received by Supplier, reasonable wear and tear excepted. Buyer shall have the right, at all reasonable times upon prior notice, to enter Supplier’s premises to inspect any and all Buyer’s property and any property or goods manufactured, developed or created with the aid of any of Buyer’s property. Supplier shall have such responsibility for Buyer’s property as is chargeable to Supplier by law by reason of its position as a bailee.

17.1 “Confidential Information” and/or “Proprietary Information” (hereinafter referred to collectively as “Proprietary Information”) shall, for the purpose of the order, mean: (i) information, knowledge or data disclosed by Buyer to Supplier, regardless of whether disclosed in written, tangible, oral, visual or other form and (ii) information, knowledge or data which was obtained from facility visits. In the event Buyer furnishes sample products, equipment, or other objects or material, including software, to Supplier, the items so received and any information contained therein shall be treated as Proprietary Information disclosed to Supplier under the order. Furthermore, any and all information obtained or derived from said items, including results from testing, shall be treated as if they were Proprietary Information disclosed pursuant to the order. All Proprietary Information disclosed in any documentary or tangible form, whether in written or electronic form may be marked “Proprietary” or “Confidential” and if the Proprietary Information is not so identified, it will be considered proprietary if by its very nature or the circumstances under which it is disclosed one would reasonably consider it to be proprietary. Supplier shall use Buyer’s Proprietary Information solely for the purposes of supporting the current business relationship with Buyer and not for any other purpose. To the extent Supplier and Buyer have executed a separate non-disclosure agreement (the “NDA”), the NDA shall govern the treatment of Proprietary Information until its expiration or termination. Following expiration or termination of the NDA, Supplier agrees that it shall not disclose Buyer’s Proprietary Information to any third party without Buyer’s express written consent. Supplier may disclose Buyer’s Proprietary Information to contract workers, consultants and agents of Supplier who have a need to know and who have executed agreements with Supplier obligating them to treat such information in a manner consistent with the terms hereof. Supplier shall not (a) sell parts or components incorporating or containing Buyer Proprietary Information to any third party including, without limitation, any products having the same product numbering or other identification as any parts or components sold to Buyer), or (b) sell any goods to any third party which have been produced using Buyer Proprietary Information.

17.2 Notwithstanding the foregoing provisions, the order shall not restrict or affect Supplier’s rights to use or disclose information: (1) which is or may hereafter be in the public domain through no fault of Supplier; or (2) which Supplier can show, as reflected by its written documents, was known to it prior to the disclosure by Buyer; or (3) which is disclosed to Supplier by a third party, without restrictions similar to those herein imposed, subsequent to disclosure by Buyer; or (4) which Supplier can show, as reflected by its documents, was independently developed by Supplier without the use of the Proprietary Information.

Supplier shall comply with all national, federal, provincial, state and local laws, rules, ordinances, orders (including court orders) and regulations made or issued by a governmental authority applicable to the performance of the Agreement, except to the extent inconsistent with U.S. antiboycott laws, including (i) the manufacture or provision of goods and the supply of services, (ii) the shipping of goods, and (iii) the configuration or content of goods and/or services for the use intended by Purchaser (collectively “Applicable Law”). Supplier agrees to cooperate with and support Buyer’s efforts to comply with all Applicable Laws. A partial list of Applicable Laws and related compliance obligations is incorporated as Attachment A

Supplier agrees that any services it performs constitute work in its status as an independent contractor. Supplier confirms that it exercises control over its employees, contractors, and agents, and that none is acting under the control of Buyer. Supplier agrees to indemnify and hold Buyer Indemnitees harmless against any claim by its employees, contractors or agents that they are acting under Buyer’s control and qualify in any way as Buyer’s employees.

Buyer’s remedies shall be cumulative and remedies herein specified do not exclude any remedies allowed by law or equity.

Title to all goods shall vest in Buyer at the point the goods are delivered to Buyer and have been accepted by Buyer.

23.1 During the Term of this Agreement, Supplier shall maintain the following types and minimum amounts of insurance coverage issued by companies authorized to do business under the laws of the State or jurisdiction in which all or part of the Services are to be performed and must have an AM Best financial rating of A- or better or an equivalent rating as produced by another rating agency acceptable to Buyer.

23.1.1 Workers’ Compensation Insurance, in an amount as required by law and Employer’s Liability Insurance in the minimum amount of $1,000,000 for any one occurrence inclusive of an alternate employer endorsement.

23.1.2 Commercial General Liability Insurance and Umbrella Liability insurance including premises liability and contractual liability, in which the limit of liability for property damage and bodily injuries, including accidental death, shall be at a minimum, a combined single limit of $5,000,000 for any one occurrence.

23.1.3 If Supplier vehicles are used on Buyer’s premises and/or used to accomplish work under the order or otherwise on behalf of Buyer, Automobile Liability Insurance and Umbrella Liability Insurance in which the limit of liability for property damage and bodily injuries, including accidental death, shall be a combined single limit of $2,000,000 for any one accident.

23.1.4 If Supplier or its subcontractors have Buyer’s materials or equipment in its care, custody or control, Supplier shall have and maintain All-Risk Property Insurance in an amount sufficient to meet or exceed the replacement value of such materials or equipment.

23.1.5 If Supplier is performing professional services on behalf of Buyer, Supplier shall maintain Professional Liability Insurance with a limit of no less than $5,000,000 per claim.

23.1.6 If Supplier has access to Buyer’s or Buyer’s customer’s computer systems and data bases, processes, store, or will hold any Buyer information, is rendering computer, coding or information technology services and/or technology products on behalf of Buyer, Technology Errors and Omissions Liability Insurance with a limit of not less than $10,000,000 per claim, which insurance shall include, at a minimum, coverage for liabilities arising from errors, omissions, or negligent acts in rendering or failing to render such services and products, privacy breach, system breach, denial or loss of service, introduction, implantation, or spread of malicious software code, and unauthorized access to or use of computer systems and

23.2 All insurance including self-insured retention or self-insurance will be primary and non-contributory in the event of loss arising out of Supplier’s performance of work. All such policies except the Professional Liability/Errors & Omissions Liability and Workers compensation shall include endorsement naming Buyer as an additional insured, or in the case of All-Risk Property insurance include the Buyer as a loss payee. To the extent permitted by law, Supplier and its insurer(s) agree that subrogation rights against Buyer and its parent are hereby waived. Supplier shall furnish a certificate of insurance and any such endorsements reflecting such coverage to Buyer upon request.

23.3 Form; Notice of Cancellation or Non-renewal. The insurance coverages described above shall be evidenced and disclosed in a form satisfactory to Buyer, upon execution of this Agreement, within five (5) days of renewal. Policies shall contain a provision prohibiting cancellation, non-renewal, or material change except upon at least 30 days’ notice and Supplier shall provide written notice to Buyer within at least 10 days of such notice from insurers.

24.4 All such policies except the Professional Liability/Errors & Omissions Liability and Workers Compensation shall include Buyer as an additional insured, or in the case of All Risk Property insurance include the Buyer as a loss payee. Buyer’s failure to monitor compliance or to object to non-compliance or unsatisfactory compliance with any terms of Section 24. Insurance does not modify or waive Supplier’s obligations under this Section 24 in any way.

24.5 Any self-insurance, self-insured retention, deductibles, and exclusions in coverage in the insurance policies described above will be assumed by, for the account of, and at the sole risk of Supplier. In no event will the Supplier’s liability be limited to the extent of the minimum limits of insurance required herein. Supplier shall, if requested by Buyer, advise Buyer of the amount of available policy limits and the amounts of any selfinsured retention. 24.6 The insurance required is in addition to and separate from any other obligations contained in this Agreement.

Upon reasonable notice, Buyer or its duly authorized representative shall have the right to audit at Supplier’s facility Supplier’s compliance with any of the provisions herein.

The order shall be construed and enforced according to the laws of the State of New York, excluding its “choice of law” or “conflict of law” rules. With respect to any dispute arising out of or relating to the order, Supplier hereby irrevocably consents to the exclusive personal jurisdiction and venue in any federal or state court located in Gwinnett County, GA and appoints the pertinent secretary of state or other applicable government authority as agent for receiving service of process.

If any provision herein shall be held by a court of competent jurisdiction to be contrary to law, the remaining provisions shall remain in full force and effect.

Unless otherwise agreed by Supplier and Buyer in writing, there is excluded from the order (including any amendments or changes thereto) the application of the Unite Nations Convention on Contracts for the International Sale of Goods.