PROFILE CUSTOM EXTRUSIONS, LLC – SELLER STANDARD TERMS AND CONDITIONS

1.      Controlling Terms and Conditions. The Seller objects to, and shall not be bound by any term or condition on the Buyer’s order that is different from or in addition to the Seller’s terms and conditions. Any additional or different terms or conditions proposed by the Buyer are hereby expressly rejected. No terms, conditions, description, price or quantity shall be changed, and no agreement or understanding in addition to or different from the terms and conditions stated herein shall be binding upon the Seller without written authority from the Seller’s authorized representative.

2.      Price. Unless otherwise specifically indicated in the applicable order, all prices are exclusive of any freight costs and any sales, use, value added, excise, gross receipts, business and occupation or similar present or future taxes imposed by any governmental body on the sale, delivery, use or other handling of the goods or in connection with any transactions contemplated herein. All prices are F.O.B. Seller’s shipping point (Rome, Georgia).

3.      Terms of Payment. Unless otherwise indicated with the applicable purchase order, terms are net [thirty] days from date of Seller’s invoice. If the Buyer fails to pay by the due date any sum required to be paid by the Buyer to the Seller hereunder, the Buyer will pay to the Seller for each delinquent payment or part thereof interest from the due date until paid at the rate of Prime Interest Rate plus 6%, unless limited by applicable law. Seller shall also have the right, among other remedies, either to terminate the order or to suspend further performance in the event Buyer fails to make any payment when due. The Buyer shall also pay to Seller all reasonable costs and expenses (including but not limited to attorney’s fees) incurred by the Seller in connection with the Seller’s efforts to collect such delinquent payment(s).

4.      Separate Sale. Each delivery hereunder shall be deemed a separate sale, and failure of the Seller to make delivery hereunder shall not affect this contract with respect to any other delivery hereunder.

5.      Delivery. Unless otherwise indicated in the applicable order or if delivered only by our trucks, title, and all risk of loss or damage to goods shall, unless otherwise agreed to in writing by the parties, pass from Seller to Buyer upon delivery of goods to the carrier for delivery, F.O.B. Seller’s shipping point. Any claims for shortages or damages suffered in transit shall be submitted by Buyer directly to the carrier within ten days of delivery. While Seller will use all reasonable commercial efforts to maintain the delivery date(s), all shipping dates are approximate. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any goods for which Buyer has not provided shipping instructions. If the shipment of the goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and other additional expenses resulting therefrom.

6.      Warranties. The Seller warrants that the material delivered hereunder shall conform to the specifications or grade described herein, with any stated tolerances. The Seller makes NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Buyer assumes all risks incurred in the use of any material delivered hereunder. Any claims that material delivered hereunder does not conform to the specifications set forth herein must be presented by the Buyer to the Seller within thirty (30) days after delivery thereof.

7.      Force Majeure. The Seller shall not be liable for failure to make any delivery hereunder caused by or resulting from events or circumstances beyond Seller’s reasonable control, including strikes, fires, floods, wars, riots, loss, destruction or unavailability of raw material, non-availability of transportation facilities, disruption of utilities, delays of carrier, embargoes, accidents, restrictions imposed by any government or government authority. The time of the Seller to make delivery hereunder shall be extended during any period in which such delivery shall be prevented or delayed by reason of any of the foregoing causes, provided that if any delivery hereunder be so prevented or delayed for more than three (3) months either party shall have the right to cancel this Order with respect to such delivery by written notice to the other.

8.      Limitation on Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (including loss of anticipated profits, business interruption, loss of use or revenue, cost of capital or loss or damage to property or equipment) arising in any way from the relationship of the parties or the production, sale or delivery of the goods by Seller.

9.      Liquidation. Without limiting any other rights that may be available to the Liquidating party, in the event (each, a “Default”) that a party hereto (the “Defaulting Party”) is the subject of a bankruptcy, insolvency, reorganization or other similar proceeding, or fails to pay its debts generally as they become due or otherwise is bankrupt or insolvent, then the Liquidating party shall have the right to liquidate an undelivered, unpaid transaction for material(s) and/or to liquidate any or all other agreements between the parties for the purchase and sale of material(s) or swaps with respect to the prices thereof or options on any of the foregoing (collectively “Transactions”) then outstanding by closing-out this transaction and any other transaction being liquidated, calculating the loss, if any for each such transaction, and aggregating or netting such amounts and any and all other amount(s) owing under this transaction or any other transaction being liquidated to a single liquidated settlement payment that will be due and payable within one (1) business day after the liquidation is completed.

10.  Termination. The Seller shall have the right in its sole discretion, by notice given to the Buyer, to terminate any order upon the occurrence of any direct or indirect, voluntary or involuntary, sale, lease, transfer, assignment, merger, consolidation or other disposition of the Buyer’s assets, it being understood that in the event such shall occur (and without prejudice to the termination remedy specified), (x) the Buyer shall remain fully liable for its obligations under this Agreement, and (y) the transferee of such assets or such facility shall also be liable for all obligations of the Buyer under this Agreement.

11.  Entire Agreement.   This order contains the entire agreement between the parties and supersedes any prior oral or written agreements or communications between them relating to the subject matter hereof.

12.  No Assignment; Waiver. The Buyer may not transfer, assign, pledge or otherwise dispose of this order, or any interest or right hereunder, without the express written consent of the Seller. Waiver by the Seller of the operation of any provision of this order or of any breach by the Buyer shall not constitute a continuing waiver.

13.  Choice of Law. This Order shall be governed by and construed in accordance with the laws of the State of Georgia without regard to conflicts of laws. Any controversy or claim arising out of or relating to this Order shall be submitted to arbitration in Floyd County, Georgia in accordance with the Commercial Arbitration Rules of the American Arbitration Association.

PROFILE CUSTOM EXTRUSIONS, LLC – BUYER GENERAL TERMS AND CONDITIONS OF PURCHASE

1. Seller shall comply with any specifications stated on the face of this order and (unless the goods called or by this order are standard commercial products not intended as component parts of or as equipment or accessories for Buyer’s products) with applicable United States Government specifications.
2. INSPECTION; REJECTION.
   1. Buyer and, if the face of this order bears a Government prime contract number, representatives of the United States Government, shall have the right to inspect and test the materials and workmanship of all goods at all times and places including, when practicable, during manufacture; and if any such inspection or test is made on the premises of Seller, Seller shall furnish without additional charge all reasonable facilities and assistance for a safe and convenient inspection or test.
   2. Notwithstanding prior inspection payment for, or use of the goods, Buyer shall have the right to reject any of such goods which do not conform to the requirements of this order. Such right shall be exercisable within the period provided in Buyer’s applicable specification, or elsewhere in this order, or in the absence thereof within six (6) months following Buyer’s receipt of the goods called for.  All such rejected items shall be returned to Seller transportation collect (declared at full value, unless Seller advises otherwise), for credit or refund and shall not be replaced by Seller except upon written instructions from Buyer, excepting however, those goods which Buyer elects to repair at Seller’s expense.  Should buyer in such case repair the goods, all purchase order terms and conditions hereof shall remain in full force and effect as to the good furnished by Seller.  Buyer’s rights under this subparagraph shall be in addition to and shall not be deemed to diminish its rights under the paragraph hereof entitled “Warranty”. 
3. Seller warrants to Buyer and to purchasers of Buyer’s products that at the time of delivery the goods called for by this order will be free from defects in material and workmanship and will be suitable for the purposes intended whether expressed or reasonably implied.
4. PATENT INDEMNITY. As to any of the goods manufactured or supplied to a design or specification furnished by Buyer, Buyer shall indemnity and save harmless Seller from any claim that the same in and of itself infringes any United States patent, except that the design or specification shall be deemed to be not furnished by Buyer if the subject matter giving rise to the claim of infringement either (a) was derived from, or selected by the Seller, or (b) relates to materials, compositions, or alloys or processes relating thereto. As to any of the goods manufactured or supplied other than to a design or specification furnished by Buyer, Seller shall indemnify and save harmless Buyer and each subsequent purchaser or user from any claim that any use or resale of the same in and of itself infringes any United States patent, copyright, trademark, or other proprietary right.  Upon the making of any claim indemnified hereunder or the commencement of any suit or action having basis in such claim, the party against whom such claim is made, or suit or action commenced, shall promptly notify the other in writing; and the party required to assume liability therefore under the foregoing provisions shall promptly assume and diligently conduct the entire defense thereof, at its own sale cost and expense, provided, that the party not required to assume liability shall have the right insofar as its interest are affected, at is sold election buy at is own cost and expense, to request the court to permit it to intervene in any such suit or action or to cooperate in the defense thereof, with the party required to assume liability, without releasing any obligation, liability or undertaking of the latter party, and provide further that Buyer shall have the further right, insofar as its interest are affected, at Buyer’s sole election, but at its own cost an expense, to supersede Seller in any such defense and thereafter to assume and conduct the same according to Buyer’s sole discretion in which event Seller shall be thereby released from its obligation to Buyer hereunder as to the particular goods involved.
5. CHANGES
   5. No modification of this order shall be binding on Buyer unless made by a formal purchase order document (either a Change Notice or Supplement) signed by Buyer. The only representatives of Buyer empowered to direct changes or to agree to modifications of this order are authorized representatives of Buyer’s Purchasing Department.  NO recommendations or suggestions by Buyer or others to Seller shall be binding on Buyer unless directed in accordance with the Paragraph 5.
   6. Buyer may unilaterally be a formal purchase order document make changes within the general scope of this order in (i) the shipping or packing instructions or (ii) the place of delivery, or (iii) any specifications and drawings the Seller shall comply therewith without delay. Within fifteen (15) days after receipt of notification of such change, Seller shall transmit to Buyer a statement, in such detail as Buyer may reasonably require of the effect of such change on Seller’s cost and ability to make deliveries; provided however that Buyer may receive and act upon any such statement submitted after the fifteen (15) days at any time prior to final payment under this order if Buyer finds that the facts justify such action.  As soon as practicable Buyer and Seller shall agree upon an equitable adjustment of the purchase price or the delivery schedule, or both, and incorporate such agreement into the order by a formal purchase order document.  Nothing in this paragraph 5 shall excuse Seller from proceeding with this order as changed.
6. ASSIGNMENT AND SETOFF
   1. Performance of this order shall not be assigned by the Seller without the prior written consent of Buyer.
   2. Claims for money due or to become due to Seller from Buyer arising out of this order may be assigned, but Buyer shall be under no obligation to pay the Assignee unless and until Buyer shall have received written notice of the assignment, a true copy of the instrument of assignment, and suitable documentary evidence of Seller’s authority to so assign.
   3. In no event shall copies of this order or of any plans, specifications or other similar documents relating to work under this order, if marked Top Secret, Secret, Confidential, or Confidential – Modified Handling Authorized, be furnished to any assignee or to any other person not entitled to receive the same; provided that a copy of any part or all of this order so marked may be furnished or any information contained therein may be disclosed to such Assignee upon the prior written authorization of the appropriate Government Contracting Officer.
   4. Buyer shall have the right to reduce and set off against amounts payable hereunder any indebtedness or other claim which Buyer may have against the Seller, however, and whenever arising.
7. BUYER FURNISHED MATERIALS, TOOLING, AND EQUIPMENT
   1. All materials, tooling, and equipment which Buyer is required to furnish to the Seller under the provisions of this order, shall be delivered in sufficient time to enable Seller to meet its delivery schedule. If such materials, tooling and equipment are not delivered to Seller in sufficient time the resultant delay of Seller in delivering to Buyer shall be excusable.  Buyer shall have not liability to Seller by reason of any delay in delivery of, or failure to delivery, such materials, tooling and equipment; provided, however that if as a result of such delay or failure, Buyer shall terminate this order, it shall be terminated for the convenience of Buyer and settlement shall be made as provided in Paragraph No 12 hereof.
   2. Title to any materials, tooling and equipment furnished by Buyer to Seller shall remain in Buyer or the Government. Title to all special tooling as defined in DAR 7-104 25, or other tooling called for by this order shall vest in Buyer upon Buyer’s written notice to Seller.  The responsibility for taxes and the risk of loss or damage with respect to all such materials, tooling and equipment shall be borne by Seller at all times while in the custody, care or control of Seller, including while in the hands of carriers. 
   3. Seller shall not be required to account to Buyer for the proceeds from the sale of scrap generated during the performance of this order by the processing of materials furnished by Byer, provided, however, that Seller shall reimburse Buyer at Buyer’s prices then current for any such materials used by Seller in excess of the allowance, if any, set forth in the order. Upon completion or termination of this Order, any of the materials furnished by Buyer and not properly consumed in the performance of the order, and tooling and equipment shall be displayed of in accordance with instructions from Buyer. 
   4. When Buyer furnishes any material in whole or in part, for the manufacture of parts or assemblies, Seller shall not substitute material from any other source nor shall the Seller alter its physical or chemical properties except in accordance with applicable Buyer’s specifications or except with Buyer’s written approval.
8. 1. The Buyer may by written notice terminate all or part of this contract (i) if the Seller fails to make delivery of goods or perform services within the time specified, or (ii) if the Seller fails to perform any other requirement of this contract and does not cure such failure within ten (10) days after receipt of notice from the Buyer specifying such failure. If the Buyer so terminates all or any part of this contract, the Buyer may repurchase similar goods elsewhere and the Seller shall be liable to the Buyer for any excess cost.  The Seller shall not, however, be liable for any such excess costs if the Seller’s failure to perform arises out of any cause beyond the control and without the fault or negligence of the Seller, provided that Seller shall give to Buyer prompt notice in writing when it appears that such will result in failure or delay in making deliveries under this order.  The Buyer shall also be excused for failure or delay in performance hereunder due to any cause beyond its control and without its fault or negligence.  The remedies provided herein are not exclusive and are in addition to any other remedy provide by law or this contract.
   2. The Buyer shall also have the right to terminate this contract or any part thereof for default without further cost or liability to Buyer in the event of (i) a filing of a voluntary or involuntary petition to have Seller declared bankrupt; (ii) the appointment of a receiver or trustee for Seller; or (iii) the execution by Seller of an assignment for the benefit of creditors.
9. COMPLIANCE WITH LAWS. In the performance of this order, Seller shall comply with all applicable laws, ordinances, rules and regulations federal, state, and local.  Seller hereby certifies that the goods called for by this order have been or will be produced in compliance with the Fair Labor Standards Act of 1938 (26 U.S. Code 201-219) and insofar as applicable to this order the Walsh-Healey Public Contracts Act (41 U.S. Code 35-45), or the Work Hours Act of 1962 (40 U.S. Code 327-332), and any amendments thereto, as well as with the provisions of any other federal law with respect to labor relations, minimum wages, and hours of employment, now in effect or hereafter enacted, and with any and all rules and regulations issued under each and every such act.  Seller agrees that this certification may be considered as the certificate contemplated by the amendment dated October 26, 1949 to the Fair Labor Standards Act of 1938.
10. GOVERNMENT CONTRACT REQUIRMENTS
    1. If this Purchase Order is a subcontract under a Government prime contract, as may be evidenced by the inclusion of a reference to a Government contract number on the face of this order, than all clauses required by the Defense Acquisition Regulations (DARs) or other equivalent regulations, or by the Government prime contract, to be included in subcontracts of this nature, are hereby incorporated in and made a part of this Order which clauses consist of those set forth in appendix B attached hereto.
    2. Since the phraseology of the clauses incorporated above has been primarily designed for government prime contracts, words and phrases in the foregoing regulations importing the Government or the prime contractor or their representatives shall, when a fair and reasonable interpretation of the context of this order so requires in order to express properly the subcontract relationship, be deemed to refer to Buyer or Seller or their respective representative provided, however, that all references to “Government” in the patent clauses incorporated herein above shall refer only to the United States Government and all references to “Contracting Officer” in the clauses incorporated herein above shall refer to the Government Contracting Officer for the prime contract; provided, further that all references to the clause entitled “Disputes” shall be deemed deleted. Copies of such DAR clauses and information as to the Cognizant Contracting Officer shall be furnished by Buyer to Seller upon request.  
11. INSPECTION OF RECORDS. If the face of this order bears a Government prime contract number, Seller agrees that its books, records and it plant or such parts thereof as may be engaged in the performance of this order, shall at all reasonable times be subject to inspection and audit by any authorized representative of any Department of the United States Government.
12. TERMINATION FOR CONVENIENCE. The Buyer may by written notice, terminate the contract in whole or in part, when it is in the best interest of the Buyer to do so.  If this contract is so terminated, the Seller and the Buyer may agree upon the amount to be paid to the Seller by reason of such termination.  In the event of a failure to so agree, the Seller shall be reimbursed its actual costs determined by Buyer after audit of the books and records of Seller to be reasonable and allocatable to the terminated work in accordance with generally accepted accounting principles consistently followed by the Seller and not inconsistent with the cost accounting standard promulgated under P.L 91-379(50 USC268), plus a reasonable profit.
13. CUMULATIVE REMEDIES. The rights and remedies herein reserved to Buyer shall be cumulative and additional to any other or further rights and remedies provided in law or equity. 
14. Captions, as used herein, are for convenience or reference only and shall not be construed to limit or extent the language of the provisions to which such captions may refer.
15. CONFIDENTIAL DISCLOSURE. Sellers shall protect as proprietary and keep confidential all proprietary information including, but not limited to, designs, processes, drawing, specification, report, data and other technical or business information and the features of all parts, equipment, tools, gauges, patterns, and other items furnished or disclosed to Seller by Buyer.  Unless otherwise provided herein or authorized by Buyer in writing, Seller shall use such information and items and the features thereof only in the performance of the Order; thus, Seller shall not sell, or otherwise dispose of as scrap or otherwise and completed or partially completed or defective proprietary goods withing defacing or rendering such goods unsuitable for use.  Upon completion of termination of this Order, Seller shall, at Seller’s expense, make such disposition of all such proprietary information or goods as herein required or as may be subsequently requested by Buyer.  The Buyer shall have the right to audit all pertinent books and records of the Seller in order to verify compliance with the Paragraph 15.  The Seller shall include in its subcontracts hereunder provisions which provide to Buyer the same rights and protections as provided in the Paragraph 15.
16. APPLICABLE LAW AND FORUM. This order shall be interpreted in accordance with and the construction thereof shall be governed by the laws of the state in which the Buyers place of business issuing this order is located.  Buyer may, but is not obligated to bring any action or claim relating to or arising out of this order in the appropriate state or federal court in said state, and Seller hereby irrevocably consents to personal jurisdiction in any such court, hereby appointing the Secretary of State of said state as agent for receiving service of process.  Any action or claim by Seller with respect hereto shall also be brought in such appropriate state or federal court in said state.  If Buyer of any such intended action or claim including the intended venue thereof, and shall not commence such action or claim outside of said state if Buyer, within thirty (30) days from receipt thereof, makes its election as aforesaid.
17. PARTIAL INVALIDITY. If in any instance any provision of this order shall be determined to be invalid or unenforceable under any applicable law such provision shall not apply in such instance, but the remaining provisions shall be given effect in accordance with their terms. 

FEDERAL EXCISE TAX EXEMPTION CERTIFICATE

(Purchases for Further Manufacture Under Section 4061(b))

The undersigned hereby certifies that they are manufacturers or producers of articles taxable under Chapter 32 of the Internal Revenue Code of 1986 and that the article or articles specified in the accompanying order will be used by them as material in the manufacture or production of, or as a component part of an article or articles to be manufactured or produced by them, enumerated in such Chapter 32.

It is understood that for all the purposes of such Chapter 32 the undersigned will be considered the manufacturer or producer of the articles purchased hereunder and (except as specifically provided by law) must pay tax on resale or use, otherwise than as specified as above, of the articles purchased hereunder.  It is further understood that the fraudulent use of this certificate to secure exemption will subject the guilty parties