1. Acceptance

Your acceptance of delivery of any products or materials from Comet shall be deemed your acceptance of the terms and conditions herein, and such acceptance is your agreement to be legally bound hereby. Upon Comet’s acceptance of your order, your order may not be cancelled, reduced, or modified without Comet’s written consent. An order is not accepted by Comet Tool Co. until a signed Sales Acknowledgement is received. Due to packaging & material lot sizes, Comet Tool reserves the right to ship orders within 10% +/- of purchase order total.

2. Specifications

Product specifications are subject to change without prior notice.

3. Prices

Except as may be specifically provided in Seller’s quotation, all prices are subject to change without notice.

4. Delivery

(a) Seller reserves the right to make partial deliveries and to ship products as they become available. The delivery and/or shipping schedule is the best estimate possible based on conditions existing at the time of Seller’s acceptance of the order or quotation and receipt of all specifications, as applicable; for non-standard items, any such date is subject to Seller’s receipt of complete information necessary for design and manufacture. Seller assumes no liability whatsoever, including loss of use or any other direct, indirect, or consequential damages, due to delays.

(b) Unless otherwise mutually agreed to in writing signed by both Seller and Buyer, delivery from Seller’s factory or designated shipment point to a destination inside or outside of the U.S. and Puerto Rico shall be FCA (Free Carrier) INCOTERMS 2000. Title passes when the goods leave Seller’s factory or designated shipment point (Seller retains, and Buyer grants Seller, a security interest in goods shipped hereunder until payment is received by Seller), and Buyer has the obligation to insure once title passes.

(c) Buyer will pay, or reimburse Seller for, all freight, taxes, duty and entry fees, special and miscellaneous charges, and special packaging charges.

(d) Product shipped by Comet Tool requiring the use of pallets will require the customer to pay an additional fee (noted on the Sales Acknowledgement) per pallet. Exchange programs may be implemented.

5. Damaged Shipments

Please inspect your Comet shipment upon receipt. If any external damage is noticed, accept the shipment only after the driver has noted the damage on both his and your copies of the delivery receipt and you have requested an inspection by the carrier. Keep all containers and packing material for inspection. If, upon opening a shipment, you find a shortage or damage, you must request inspection by the carrier within 15 days of delivery or you will relinquish your right to make a claim. Comet reserves the right to repair a damaged product, where applicable, before replacement or credit is determined.

6. Payment Terms

Invoices are payable net thirty (30) days from date of invoice, unless other terms are agreed to in writing. Payments are to be made in freely available United States dollars, including applicable taxes and other government-imposed surcharges Comet may be required to pay or collect. Payments received by Comet no later than 2:00 PM Eastern Standard Time will be credited to your account as of the date received; payments received after 2:00 PM EST will be credited the following business day. Delinquent accounts are subject to a service charge on past-due amounts of one and one-half percent (1½%) per month (or, if less, the maximum permitted by law). Comet shall be entitled to recover, and customer shall pay, all reasonable attorneys’ fees incurred by Comet for collection of past due amounts or to enforce Comet’s rights hereunder. Seller may suspend performance of any order or require payment in cash, security, or other adequate assurance when, in Seller’s opinion, Buyer’s financial condition or other grounds for insecurity warrant such action. All sales are subject to approval of Seller’s credit department.

7. Taxes

All prices are exclusive of any applicable U.S.A. federal, state, or local sales, use, excise, or similar taxes. All such taxes are for Buyer’s account and will be paid by Buyer upon submission of Seller’s invoices. If Buyer is exempt from any applicable sales tax but fails to furnish its Sales Tax Exemption Number to Seller in a timely manner and Seller is required to pay such tax, the amount of any such payment will be reimbursed by Buyer to Seller upon submission of Seller’s invoices.

8. Services

Seller will provide services expressly described in its quotation (or other document executed by Seller) during normal business hours, unless otherwise specified. Services requested or required by Buyer outside of these hours, or in addition to the quoted or agreed-upon services, will be charged at Seller’s then-current schedule of rates, including overtime charges if applicable, in addition to the charges outlined in the quotation.

9. Product Return Policy

All returns must be authorized in advance in writing by Comet. To ensure proper credit, each product return must include: Customer Name and Address; Purchase Order Number; Comet Shipping Order Number; Date of Invoice; Comet Return Authorization Number; Reason for Return; Box label information; and a photo of non-conformance/damage. Comet reserves the right to refuse returns, and to freeze shipments of similar parts, until requested samples are provided. You assume all risk of loss for the returned product until it is actually received by Comet.

10. Product and Service Warranties and Limitation of Liability

(a) Comet warrants to you only that all products, produced with the product drawing resin (or equivalent), are guaranteed to be free of defects in material or workmanship at time of shipment.

(b) COMET HEREBY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, SUITABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.

(c) This limited warranty does not extend to any products which are abused, altered, or misused by Customer or any other persons or entities, or which become defective or non-conforming through the actions or inaction of Customer or any other persons or entities. A defective or non-conforming product is defined only as a product outside of the manufacturer’s defined product specifications, and does not include products that fail to meet any fitness of use, operating conditions, or applications specific to Customer.

(d) If any product or service warranted hereunder proves defective or non-conforming, Comet’s sole liability and Customer’s sole remedy shall be for Comet, at its option, to (i) repair or replace, at no cost to Customer, the defective or non-conforming product or service, or (ii) credit Customer’s account for all amounts paid with respect to the defective or non-conforming product or service upon Comet’s receipt of the defective or non-conforming product.

(e) If a product requires service, contact Comet for instructions. When return of the product is necessary, a return authorization number will be assigned and the product shipped, transportation charges prepaid, to Comet, along with a detailed explanation of the defect.

(f) IN NO EVENT SHALL COMET HAVE ANY OBLIGATION OR LIABILITY FOR ANY EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, USE, OR GOODWILL), WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY. THE TOTAL LIABILITY OF COMET (INCLUDING ITS SUBCONTRACTORS AND AGENTS), IF ANY, FOR DAMAGES RELATING TO ANY PRODUCTS SOLD SHALL BE LIMITED TO THE PRICE PAID FOR SUCH PRODUCT(S), AND FOR ANY SERVICES PROVIDED SHALL BE LIMITED TO THE FEES PAID FOR THE SERVICE GIVING RISE TO SUCH CLAIM.

11. Cancellation

Buyer may not cancel its order after Seller’s acceptance unless all details are approved in writing by the parties, including Buyer’s agreement to pay a stated amount of termination charges. If an order is placed on hold, canceled, or if part or mold design changes are requested after commencement of engineering and/or manufacturing, Buyer may be responsible for an interruption charge on all or part of the order to cover incurred and other expenses relating to production rescheduling, additional set-ups, handling, storage, and inventory costs. Comet requires a minimum 25% cancellation charge.

12. Claims

All claims for incorrect products or amounts thereof must be made in writing within ten (10) days after receipt of the product.

13. Proprietary Information

Each party (a “Recipient”) shall maintain in confidence, not disclose to any third party, and not use (except for the specific purpose of performing under this Agreement) all proprietary information furnished to it by the other party (a “Discloser”) in connection with this Agreement, and shall return to the Discloser, upon request, all copies then in Recipient’s possession of documents and other tangible media furnished by or derived from Discloser. The Recipient shall inform its employees, agents, and representatives of these obligations and require them to assume equivalent obligations.

14. Miscellaneous

(a) Force Majeure — If either party is prevented in whole or material part from performing its obligations solely as a result of force majeure, upon prompt notice detailing the event and its anticipated duration, the obligations of the prevented party shall be excused during the period of delay, and such party shall take reasonable steps to relieve the effect of such cause as rapidly as possible.

(b) Merger, Modification, Waiver — No amendment, modification, or waiver of these Terms shall bind Comet unless in writing and signed by an authorized officer of Comet. A waiver is effective only in the specific instance and for the specific purpose given and shall not be construed as a waiver of any subsequent breach. No course of dealing, usage of trade, or course of performance shall supplement, explain, or amend any term of this Agreement.

(c) Indemnification — Customer indemnifies Comet and its employees, officers, directors, agents, and subcontractors for any damages related to Customer’s, or its customers’, use of the products, except to the extent caused by the willful misconduct of Comet.

(d) Applicable Law — This Agreement is governed by the internal laws of the State of New Jersey (and U.S. federal law, to the extent applicable), without regard to conflicts-of-law principles, and disputes are subject to the exclusive jurisdiction of the Federal and State courts in New Jersey.

(e) Authority to Enter into Agreement — Each party represents it is authorized to enter into this Agreement and is not in violation of any other contract by doing so.

(f) Assignment — This Agreement binds and inures to the benefit of the parties and their successors and permitted assigns; neither party may transfer, assign, or delegate its rights or obligations without the other party’s prior written consent, except assignment to a parent, subsidiary, or successor corporation without such consent.

(g) Nature of Relationship — Neither party, its employees, subcontractors, or agents shall under any circumstances be considered an agent, partner, joint venturer, or representative of the other party.

15. ITAR Registration Requirements

Seller shall comply with International Traffic in Arms Regulations §122.1, Registration Requirements.

16. Audit Rights and Examination of Proposed Costs

For purposes of evaluating Seller’s incurred costs, invoices for cost reimbursement, progress payments, claims arising out of termination or dispute, and proposals for incentive price revisions or change proposals involving unique claims requiring audit verification, Seller agrees that Buyer or its authorized representatives shall have access to and the right to audit pertinent books, documents, papers, and records supporting direct and indirect costs. Seller further agrees Buyer shall have equivalent audit rights over Seller’s proposed costs for change proposals and follow-on procurement.

17. Liquidated Damages

If Seller fails to deliver the goods or perform the services within the time specified in this contract, and actual damages would be difficult or impossible to determine, Seller will pay Buyer fixed, agreed, and liquidated damages for each calendar day of delay as set forth elsewhere in this contract. Seller will not be charged with liquidated damages when delay arises from causes beyond Seller’s control and without Seller’s fault or negligence; in such cases Buyer will ascertain the facts regarding delay and may extend the time for performance if warranted.

18. Buyer Right of Entry and Surveillance

Work under this purchase contract is subject to Buyer surveillance at Seller’s and Seller’s subcontractors’ locations. Buyer’s Quality Representative may conduct inspection on a random basis or to the extent of 100% inspection, and Seller will be notified if inspection is to be conducted on specific shipments. Buyer has the right of access, for itself, its customers, and regulatory authorities, to all facilities involved in the order and to all applicable recordings.

19. Additional Customer Contract Requirements

Seller agrees that, upon Buyer’s request, the parties will from time to time enter into amendments to incorporate additional provisions as Buyer reasonably deems necessary to comply with its prime contract or amendments thereto, with an equitable price or schedule adjustment where applicable. Supplier is required to flow down applicable requirements, including key characteristics where required, to sub-tier suppliers.

20. Acquisition and Use of Foreign Metallic Raw Material

(For Industry and Government Specifications.) Seller agrees not to incorporate into any articles delivered under a purchase order any foreign-produced metallic raw material unless it meets the requirements specified in DMS 2201. Approved non-domestic metallic raw material producers are listed in the Qualified Products List (QPL) of DMS 2201. Where clause D300L (Acquisition and Incorporation of Non-Domestic Specialty Metals) applies, compliance with both DMS 2201 and D300L is mandatory.

Seller Furnished Material Certification — Seller shall document and maintain material certification containing: description of the material used in manufacture; material specifications; lot, heat, or batch number identification; source of procurement (name, address, and country); origin of material; name and location of the melting facility; name and location of mill; mill certification; and all other requirements specified in the applicable raw material specification, including chemical and physical analysis. Seller shall retain certification for no less than seven (7) years after final payment.

21. Quality Requirements

(a) Suppliers are required to notify the organization of changes in product and/or process definition and, where required, obtain the organization’s approval.

(b) Suppliers are required to notify the organization of nonconforming products and obtain organization approval for nonconforming product disposition.

22. Patent or Trademark Infringement and Product Liability

Buyer has no authorization to make any representation, statement, or warranty on behalf of Seller relating to any products sold hereunder. Buyer shall indemnify and defend, at its own expense, Seller against claims or liability for U.S. or applicable foreign patent, trademark, or other intellectual property infringement, and for product liability, arising from preparation or manufacture of a product according to Buyer’s specifications, Buyer’s unauthorized use of Seller’s products, changes or alterations made by persons other than Seller, improper use of Seller’s product, or the manufacture, sale, or use of Buyer products incorporating Seller’s products.

23. Ownership of Materials

All devices, designs (including drawings, plans, and specifications), estimates, prices, notes, electronic data, and other documents or information prepared or disclosed by Seller, and all related intellectual property rights, remain Seller’s property. Seller grants Buyer a non-exclusive, non-transferable license to use such material solely for Buyer’s use of the product purchased hereunder. Buyer shall not disclose such material to third parties without Seller’s prior written consent, and shall not alter, reverse-engineer, remove identification from, or create derivative works of the products, or otherwise act contrary to Seller’s rights in the related technology and intellectual property.

24. Export

As a condition to Seller’s delivery of the products and/or parts thereof, Buyer agrees, with respect to exportation or resale, to comply with all requirements of the International Traffic in Arms Regulations (“ITAR”), the Export Administration Regulations (“EAR”), and all other applicable national (including European) government laws and regulations on export controls, including export licenses, restrictions on export to embargoed countries, and restrictions on sales to certain persons and/or entities.

25. Entire Agreement

Seller’s Terms and Conditions of Sale and the Confidentiality Agreement, if any, are the entire agreement of the parties and may not be modified except in writing signed by a duly authorized representative or officer of Seller.

26. Quotation

All quotations by Seller are subject to change or withdrawal without prior notice to Buyer, unless otherwise specifically stated in the quotation. Quotations are subject to Seller’s approval of Buyer’s credit. All sales, contracts, and orders become effective only if and when approved and accepted in writing by Seller through issuance of the Seller Acknowledgement Form, and are subject to these Terms and Conditions.

27. Confidentiality

If Seller discloses or grants Buyer access to any research, development, technical, economic, or other business information or “know-how” of a confidential nature, Buyer will not use or disclose such information to any other person or company at any time without Seller’s prior written consent. Where Buyer and Seller have entered into a separate Confidentiality Agreement, that agreement’s terms take precedence over this paragraph.

28. No Waiver

Seller’s failure to insist on Buyer’s strict performance of these terms at any time shall not be construed as a waiver by Seller of performance in the future.

29. Validity

If any provision of these Terms and Conditions of Sale is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions, and the remainder of the affected provision, shall not be affected.

30. Governing Law

The laws of the State of New Jersey govern these Terms and Conditions of Sale and the parties’ agreement for sale of products, regardless of conflict-of-law principles. The parties agree to submit to (and waive any objection on grounds of inconvenient forum or otherwise) the jurisdiction of the Supreme Court of the State of New Jersey, County of Gloucester, or the United States District Court for the Southern District of New Jersey, which shall have exclusive jurisdiction over any suit, action, or proceeding relating to these Terms and the purchase and supply of systems, parts, or related services. A judgment of those courts may be recognized and enforced by any court of any state, country, or other jurisdiction.

31. Diversity & Ethics

Comet Tool maintains an open and diverse collection of ideas and practices. All members of our team, associates, vendors, suppliers, subcontractors, and customers are expected to adhere to the following: Core Principles — Honest and Ethical Business Conduct, Respect for Human Rights, and Appreciating Diversity. Fair Labor and Employment Practices — Equal Employment Opportunity/Non-Discrimination, No Forced Labor/Child Labor, Sound Labor and Employment Practices, and Work Environment (Anti-Harassment/Anti-Discrimination/Health & Safety). Responsibility for Products and Services — Product and Service Safety and Accessibility, and Environmental Conservation. Protection of Intellectual Assets — Intellectual Property, Confidential or Proprietary Information, Personal Information, and Information Security. Fair Business Practices — Fair Competition, Fair Procurement, and Anti-Corruption. Responsible Business Conduct — Sound Decision Making, Public Disclosure, Recording and Reporting of Information, and Tax Compliance. Ethical Personal Conduct — Personal Conflict of Interest, Corporate Asset, and Public Statements. Responsibility of Every One of Us — Reporting Concerns and No-Retaliation.

32. Environmental Policy

Comet makes efforts to continually improve its operations to minimize environmental impact and complies with all required regulations. Permits are current for all state-monitored environmental requirements. Cooling water is filtered and monitored. Scrap materials are stored for recycling, not placed in landfills. Equipment purchases are evaluated for energy efficiency and noise creation. Building improvements focus on environmental impact. Cleaning products without CFCs are targeted. Waste water is contained and sourced to licensed companies for disposal. External air discharged is filtered and contained. Energy-saving methods are used where possible. Grounds are maintained, and trash is contained and removed by a licensed disposal company.

Purchase Card FAR and DFARS Terms and Conditions

The following terms apply to purchases made under a Buyer’s Purchase Card Program subject to Federal Acquisition Regulation (“FAR”) and Department of Defense FAR Supplement (“DFARS”) clauses.

1. Formation of Contract — These terms apply to purchases of goods from a Buyer using its Purchase Card Program. Seller’s acceptance through any means, including commencing sale, shipment, or delivery, conclusively evidences acceptance of the applicability of the FAR and DFARS clauses referenced herein.

2. FAR/DFARS Clauses — For purchases made under a Purchase Card contract, Buyer is a prime contractor to the U.S. Government and Seller is a subcontractor for certain commercial goods and transactions. Seller shall comply with all applicable statutes and U.S. Government rules, regulations, and orders, including applicable FAR and DFARS clauses. Seller bears sole responsibility for determining which specific FAR and DFARS clauses apply to specific goods or transactions, and for compliance with all applicable clauses, including (as applicable): FAR 52.244-6 (Subcontracts for Commercial Items); FAR 52.203-15 (Whistleblower Protections); FAR 52.203-19 (Prohibition of Certain Internal Confidentiality Agreements); FAR 52.204-21 (Basic Safeguarding of Covered Contractor Information Systems); FAR 52.204-23 (Prohibition on Kaspersky Lab and Other Covered Entities); FAR 52.204-25 (Prohibition on Certain Telecommunications and Video Surveillance); FAR 52.209-6 (Protecting the Government’s Interest When Subcontracting with Debarred/Suspended Contractors); FAR 52.222-21, 52.222-26, 52.222-35, 52.222-36, 52.222-37, 52.222-40, 52.222-50, 52.222-54, 52.222-55, 52.222-62 (labor, equal opportunity, and wage clauses); FAR 52.224-3 (Privacy Training); FAR 52.225-26 (Contractors Performing Private Security Functions Outside the U.S.); FAR 52.232-40 (Accelerated Payments to Small Business Subcontractors); FAR 52.245-1 (Government Property); FAR 52.247-64 (Preference for U.S.-Flag Commercial Vessels); and the corresponding DFARS clauses including 252.244-7000, 252.204-7009, 252.204-7012, 252.204-7015, 252.204-7018, 252.211-7003, 252.223-7008, 252.223-7999, 252.225-7001, 252.225-7007, 252.225-7009, 252.225-7012, 252.225-7048, 252.225-7051, 252.225-7052, 252.227-7015, 252.227-7037, 252.232-7017, 252.236-7013, 252.239-7010, 252.246-7003, 252.246-7007, 252.246-7008, 252.247-7003, and 252.247-7023, each as applicable to the specific goods and transaction. Full clause text and applicability conditions are incorporated by reference from the FAR and DFARS and available from Buyer’s Authorized Procurement Representative upon request.

3. Governing Law — Purchase Card contracts and disputes arising out of or relating to them are governed by the laws of the State of Delaware, without regard to conflict-of-law rules, provided that provisions incorporated directly from the FAR or FAR supplements (including DFARS) are construed according to the federal common law of government contracts. The 1980 United Nations Convention on Contracts for the International Sale of Goods is excluded.

4. Relationship of the Parties — The parties conduct transactions arising out of a Purchase Card contract solely as independent contractors and do not intend to create any other relationship.

5. Waiver — Failure of either party to enforce any provision of a Purchase Card contract shall not be construed as a continuing waiver, nor prejudice that party’s right to enforce the provision in the future.

6. Entire Agreement — A Purchase Card contract contains the entire agreement of the parties regarding the applicability of FAR and DFARS clauses to the goods and transactions, and supersedes all prior agreements, understandings, and communications on that subject. No amendment binds either party unless in writing and agreed to by the parties.

Comet Tool Company, Inc. Terms and Conditions  |  10092008 Rev. E  |  651 Lambs Road, Pitman, NJ 08071  |  (856) 256-1070  |  sales@comet-tool.com