Terms and Conditions of Sale

1. GENERAL TERMS AND CONDITIONS OF SALE GENERAL. These General Terms and Conditions of Sale (“General Terms”) govern the offering, sale and delivery of goods and/or services (hereinafter jointly referred to as “Product”) from Seller to customer (“Buyer”) as set forth in Seller’s accompanying quote, proposal, or order acknowledgment (“Quote”). These General Terms and the Quote constitute the “Agreement” between Buyer and Seller for the purchase of the Product. If any term set forth in the Quote conflicts with any term in the General Terms, the Agreement shall be construed in favor of the Quote.

2. ACCEPTANCE. Any of the following acts by Buyer will constitute acceptance of the Agreement (and not a counteroffer): (a) issuance of a purchase order with regard to Seller’s Quote; (b) conduct or communication agreeing to accept delivery of the Product; or (c) acceptance of Product provided by Seller in connection with Seller’s Quote. Buyer’s acceptance of this Agreement incorporates these General Terms exclusively. Seller hereby objects to any terms included in Buyer’s acceptance that add to, vary from, or conflict with these General Terms, including any terms set forth in Buyer’s purchase order. Buyer’s conflicting terms will be void unless accepted by an authorized representative of Seller in a writing that expressly references these General Terms.

3. CANCELLATION. In the absence of default by Buyer, Buyer may cancel this entire Agreement at any time by written notice to Seller. Upon any such cancelation, Buyer will pay, as a condition of cancelation, Seller’s labor charges incurred through the date of cancelation (based on then-current rates Seller charges for such labor), along with all set-up costs and material charges at current rates (or any restocking fee charged by a material supplier if Seller did not purchase the material) incurred by Seller in connection with this Agreement.

4. PRICING. The price for the Product is set forth in Seller’s Quote. Unless otherwise set forth in such Quote, prices exclude freight, insurance charges, assembly, testing and inspection fees, sales, use, franchise, license, excise and other taxes in respect of the manufacture, sale or delivery, and import duties. Notwithstanding any provision in this Agreement, if significant fluctuations occur at any time in the material cost of components required under this Agreement, Buyer and Seller will review the impact of such fluctuations and will agree to equitable pricing adjustments.

5. PAYMENT TERMS. Subject to approval of Buyer’s credit, payment for Product is due within 30 days of the date of Seller’s invoice. If Buyer is delinquent in the payment of any invoice, or is otherwise in breach of this Agreement, or if Buyer’s conduct or financial condition gives rise to Seller’s insecurity regarding payments from Buyer, Seller may at its discretion withhold shipment (including partial shipment) of any order, or may, at its option, require Buyer to prepay for further shipments. Overdue amounts will accrue interest at the lesser of 1.5% per month or the maximum amount permitted by law.

6. SECURITY INTEREST. Buyer hereby grants Seller a security interest in the Products purchased under this Agreement to secure payment for the Products, and authorizes Seller to file or execute any documentation necessary to perfect its interest hereunder, including a UCC financing statement.

7. DELIVERY TERMS. Unless otherwise specified in writing, delivery will be EXW Seller (Incoterms). Buyer is responsible for shipping and all taxes, duties, and other charges, including export clearance. Buyer assumes risk upon delivery at Seller’s facilities, and will be responsible for insuring Products during shipping. Any delivery dates are estimates only, and are subject to change. If Buyer delays delivery for more than three (3) days after notification from Seller that the Product is ready for delivery, Seller may store the equipment at Buyer’s risk, in or outside of Seller’s facilities, at Buyer’s sole cost.

8. FORCE MAJEURE. Seller will not be responsible for delays resulting from accidents, acts of God, pandemics, labor difficulties from whatever cause arising, natural disasters, fires, civil unrest, any change in law affecting Seller’s business or the transaction contemplated, or any other cause beyond the reasonable control of the Seller.

9. LIMITATION OF LIABILITY. In no event shall Seller be liable for incidental, indirect, consequential, or punitive damages, including lost profits, loss of use, lost revenue, or lost business opportunity even if Buyer and/or Seller may be aware of the possibility of such damages. In no event will Seller’s liability on any claim of any kind, for any loss or damage connected with any Product or this Agreement exceed the price of the Product which gives rise to the claim. Buyer must within thirty (30) days after Buyer discovers or should have discovered any breach of this Agreement notify Seller of such breach, or be barred from any remedy. Any action resulting from any breach on the part of Seller as to this Agreement or the Product delivered hereunder must be commenced within one (1) year after the cause of action has accrued, or be barred from any remedy.

10. NO INFRINGEMENT. Seller will indemnify and defend Buyer against any charge or notice based upon a third party claim that the Product infringes the rights of any third party, except that Buyer will indemnify and defend Seller against any charge or notice based upon a third party claim that Buyer’s design or other specifications provided by Buyer infringe the rights of any third party.

11. WARRANTY. Seller warrants that the Product manufactured by Seller will be free of defects in material and workmanship (other than for any defects arising out of designs or specifications provided by Buyer), provided Buyer notifies Seller of any defect in warranty within six months of delivery of the Product. The obligation of Seller and Buyer’s sole and exclusive remedy hereunder will be limited, at Seller’s option, to either (1) replacing or repairing the defective Product, or (2) reimbursing Buyer for the price of the defective Product. Notwithstanding the foregoing warranty and remedies, Seller will have no obligation hereunder if (1) the Product or any portion thereof becomes defective in whole or in part as a result of removal, improper use, use in excess of or beyond rated capacities, alteration or misapplication, or (2) the Product has, in Seller’s opinion, been misused so as to cause independent damage. Equipment and parts made by other manufacturers are warranted only to the extent that the original manufacturer’s warranty applies. EXCEPT AS SET FORTH HEREIN SELLER DISCLAIMS ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED AND/OR STATUTORY, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NO PERSON IS AUTHORIZED TO CHANGE OR ADD TO SELLER’S WARRRANTY OBLIGATIONS.

12. COMPLIANCE WITH LAWS. Seller makes no representation as to compliance of the Product furnished hereunder with any law, rule, regulation or ordinance of the United States, a State, or local government, or any other governmental agency which may in any way be applicable to the manufacture, sale or performance of the goods and/or services furnished hereunder. Buyer represents and warrants that (1) Buyer complies with all laws applicable to the Product including (where applicable) export laws of the United States, and (2) that neither Buyer nor any of Buyer’s affiliates, parents, subsidiaries, owners, directors, officers, employees, agents or representatives are listed on the U.S. Treasury Department’s List of Specially Designated Individuals; the U.S. Commerce Department’s Denied Persons List, Unverified List, Entity List or General Orders; the U.S. State Department’s Debarred List or Nonproliferation Sanctions; or the Annex to U.S. Executive Order 13224.

13. MISCELLANEOUS. Notice given to Seller and Buyer will be given by certified mail to the respective addresses set forth on the face hereof. No waiver by either party of any provision of this Agreement will be deemed a waiver of future compliance, and such provision, as well as all other provisions herein, will remain in full force and effect. Each provision of this contract is severable and, in the event that any one or more thereof may be declared invalid, the remainder of this agreement will nevertheless remain in full force and effect to the fullest extent of applicable law. The rights and duties of the parties hereto will be determined by the laws of the State of Ohio (without giving effect to its choice of law rules), and to that end this agreement will be construed and considered as a contract made and performed in the State of Ohio. Any action will be venued exclusively in state or federal court in Cuyahoga County, Ohio.