1.       Applicability.

1.1.    These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by the seller named on the reverse side of these Terms (“Seller”) to the Buyer named on the reverse side of these Terms (“Buyer”).  Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

1.2.    The accompanying customer purchase order (the “PO”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all other understandings and communications, both written and oral.  These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its own purchase order or terms.  Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

1.3.    The party placing the PO with the Seller the party is responsible and liable for the performance and payment of the Buyer’s obligation under the PO. 

2.       Delivery.

2.1.    The goods will be delivered within a reasonable time of the delivery date on the Sales Order, subject to availability of finished Goods.  Delivery dates stated or otherwise confirmed by Seller, whether in writing or orally, are bona fide estimates but Seller cannot guarantee the same and no liability shall attach to Seller in the event of a delayed delivery.  Delay shall in no circumstances amount to or be deemed to be a breach or repudiation of the Sales Order.  Seller is not liable for any delays, loss or damage in transit.

2.2.    Unless otherwise agreed in writing by the parties, Seller will deliver the Goods to Buyer’s facility (the “Delivery Point”) using Seller’s standard methods for packaging such Goods.  Buyer will take delivery of the Goods within three (3) business days of Seller’s written notice that the Goods have been delivered to the Delivery Point.  If requested by Seller, Buyer will be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.

2.3.    Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.  Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.

2.4.    If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods will pass to Buyer; (ii) the Goods will be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer is liable for all related costs and expenses (including, without limitation, storage and insurance).

3.       Non-Delivery.

3.1.    The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

3.2.    Any liability of Seller for non-delivery of the Goods is limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

4.       Quantity.  If Seller delivers to Buyer a quantity of Goods of up to five percent (5%) more or less than the quantity set forth in the Sales Order, Buyer is not entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and will pay for such Goods the price set forth in the Sales Order adjusted pro rata.

5.       Shipping Terms.  Delivery will be made FOB the Delivery Point.

6.       Title and Risk of Loss.  Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.  As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.  The security interest granted under this provision constitutes a purchase money security interest.

7.       Amendment and Modification.  These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of Buyer and Seller.

8.       Inspection and Rejection of Nonconforming Goods.

8.1.    Buyer will inspect the Goods within two (2) business days of receipt (“Inspection Period”).  Buyer is deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller.  “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.

8.2.    If Buyer timely notifies Seller of any Nonconforming Goods, Seller will, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price (as defined below) for such Nonconforming Goods.  Buyer will ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility.  If Seller exercises its option to replace Nonconforming Goods, Seller will, after receiving Buyer’s shipment of Nonconforming Goods, deliver to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.

8.3.    Buyer acknowledges and agrees that the remedies set forth in Section 8.2 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.  Except as provided under Section 8.2, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

9.       Price.

9.1.    Buyer will purchase the Goods from Seller at the price (the “Price”) set forth on the Sales Order.  Prices stated are subject to change without notice in the event of (i) alterations in specifications, quantities, designs, or delivery schedules and/or (ii) increases in the cost of fuel, power, material supplied, or labor.

9.2.    All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer.  Buyer is responsible for all such charges, costs and taxes; provided, that, Buyer is not responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.  Buyer will, at its sole cost and expense, provide all such further documents and instruments, and take all such further acts, necessary to establish if Seller must collect any sales tax, and any other similar taxes, duties and charges of any kind imposed by any governmental authority, with respect to the transaction contemplated by this Agreement.

10.   Payment Terms.

10.1.                      At Seller’s sole discretion, Buyer shall pay Seller 50% of the total Price at the time of placing the order and the remaining 50% of the purchase amount at time of shipment without any discount, set-off or suspension as specified in Seller’s invoice.  In all cases, Buyer must pay 100% of the total cost of Goods, together with any ancillary fees or charges, before any Goods are shipped.  Unless otherwise agreed in advance in writing, Buyer will make all payments hereunder by wire transfer and in US dollars.

10.2.                      Buyer will pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly.  Buyer will reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. 

10.3.                      If there is any reasonable doubt by the Seller concerning Buyer’s ability to pay the full amount stated in the PO, Seller may require security for payment from Buyer that Seller deems sufficient before performing its obligations under the PO.  If Buyer does not pay any amount due, Seller may, without prejudice to Seller’s other lawful remedies: (a) declare immediately due and payable all Buyer’s obligations to Seller, (b) change credit or other terms for future deliveries, (c) suspend or discontinue any further deliveries until Buyer pays all overdue amounts, or (d) repossess the Products.  Buyer agrees to reimburse Seller for all costs and fees incurred in collecting any sums.

10.4.                      In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), if Buyer fails to pay any amounts when due and such failure continues for two (2) business days following written notice thereof, Seller may (a) declare immediately due and payable all Buyer’s obligations to Seller, (b) change credit or other terms for future deliveries, (c) suspend or discontinue any further deliveries until Buyer pays all overdue amounts, or (d) repossess the Goods.

10.5.                      Buyer cannot withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

11.   Limited Warranty.

11.1.                      Seller warrants to Buyer that, at the time of delivery, the Goods will comply with the specifications stated in Buyer’s purchase order.

11.2.                      EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11.1, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

11.3.                      Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods.  Third Party Products are not covered by the warranty in Section 11.1.  For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

11.4.                      The Seller is not liable for a breach of the warranty set forth in Section 11.1 unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within one year of the date of delivery and within five (5) business days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.  Buyer’s failure to make such claim within such time frames constitutes Buyer’s irrevocable acceptance of the Goods and Buyer’s acknowledgment that the Goods fully comply with this Agreement.  

11.5.                      The Seller is not liable for a breach of the warranty set forth in Section 11.1 if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (ii) the defect is caused by damage in transit (iii) Buyer alters or repairs such Goods without the prior written consent of Seller. 

11.6.                      Subject to Section 11.4 and Section 11.5 above, Seller will, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.

11.7.                      THE REMEDIES SET FORTH IN SECTION 11.6 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11.1.

12.   Limitation of Liability.  

12.1.                      IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

12.2.                      IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER FOR NONCONFROMING GOODS HEREUNDER.

13.   Insurance.  During the term of this Agreement and for a period of one (1) year thereafter, Buyer will, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than is reasonable for similarly situated companies, with financially sound and reputable insurers.  Upon Seller’s request, Buyer will provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms.  The certificate of insurance must name Seller as an additional insured.  Buyer will provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy.  Except where prohibited by law, Buyer will require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.

14.   Compliance with Law.  Buyer must comply with all applicable laws, regulations and ordinances.  Buyer must maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.  Buyer will comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer.  Buyer assumes all responsibility for shipments of Goods requiring any government import clearance.  Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.

15.   Termination.  In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for two (2) business days after written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  Buyer may not cancel or modify this Agreement except upon written agreement with Seller.  If Buyer cancels or modifies this Sales Order, Buyer will compensate Seller for all costs and damages resulting therefrom, including (without limitation) lost profits, allocable overhead, commodity market losses and all other incidental and consequential damages.

16.   Waiver.  No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller.  No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.  No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

17.   Confidential Information.  All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing.  Upon Seller’s request, Buyer will promptly return all documents and other materials received from Seller.  Seller is entitled to injunctive relief for any violation of this Section.  This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

18.   Force Majeure.  The Seller is not liable or responsible to Buyer, nor will Seller be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of thirty (30) days, Buyer will be entitled to give notice in writing to Seller to terminate this Agreement.

19.   Assignment.  Buyer cannot assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller.  Any purported assignment or delegation in violation of this Section is null and void.  No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

20.   Relationship of the Parties.  The relationship between the parties is that of independent contractors.  Nothing contained in this Agreement can be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.

21.   No Third-Party Beneficiaries.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or does confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

22.   Governing Law.  All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.

23.   Submission to Jurisdiction.  Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Cleveland, Cuyahoga County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

24.   Notices.  All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) must be in writing and addressed to the parties at the addresses set forth on the face of the Sales Order or to such other address that may be designated by the receiving party in writing.  All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or electronic mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).  Except as otherwise provided in this Agreement, a Notice is effective only if the party giving the Notice has complied with the requirements of this Section.

25.   Severability.  If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Survival.  Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information Governing Law and Submission to Jurisdiction