ACCEPTANCE

THESE TERMS AND CONDITIONS SHALL BE INCORPORATED INTO AND MADE PART OF SELLER’S QUOTATION, CREDIT APPLICATION, PROPOSAL, ORDER ACKNOWLEDGEMENT AND INVOICE (EACH, THE “QUOTATION”) AND SHALL APPLY TO THE EXCLUSION OF ANY TERMS AND CONDITIONS OF BUYER. THE TERMS AND CONDITIONS OF THE QUOTATION GOVERN THE PURCHASE AND SALE OF THE GOODS SOLD TO BUYER. SELLER AGREES TO SUPPLY THE GOODS ONLY UPON THE TERMS AND CONDITIONS OF THE QUOTATION. SELLER’S ACCEPTANCE OF BUYER’S ORDER AND AGREEMENT TO DELIVER THE GOODS IS EXPRESSLY LIMITED TO, AND EXPRESSLY MADE CONDITIONAL ON, BUYER’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THE QUOTATION. THE CONFIRMATION OF BUYER’S PURCHASE ORDER IS NOT SUBJECT TO ANY OTHER TERMS AND CONDITIONS UNLESS SUCH TERMS AND CONDITIONS ARE SET FORTH IN AN AGREEMENT SIGNED BY BOTH SELLER AND BUYER THAT REFERENCES AND SPECIFICALLY AMENDS THESE TERMS AND CONDITIONS. IN THE EVENT BUYER’S PURCHASE ORDER OR ANY OTHER DOCUMENT SUBMITTED BY BUYER INCLUDES TERMS AND CONDITIONS THAT DIFFER FROM OR ARE IN ADDITION TO THE TERMS AND CONDITIONS OF THE QUOTATION, (A) SUCH TERMS AND CONDITIONS ARE EXPRESSLY REJECTED BY SELLER AND ARE NULL AND VOID AND (B) SELLER SHALL NOT BE DEEMED TO HAVE WAIVED THE TERMS AND CONDITIONS OF THE QUOTATION IF IT FAILS TO OBJECT TO SUCH TERMS AND CONDITIONS. EITHER OF (Y) BUYER’S FAILURE TO SUBMIT A WRITTEN OBJECTION TO THESE TERMS AND CONDITIONS TO SELLER WITHIN FIVE (5) DAYS OF BUYER’S RECEIPT OF THE QUOTATION OR (Z) SELLER’S COMMENCEMENT OF THE DELIVERY OF THE GOODS AND BUYER’S ACCEPTANCE OF SUCH DELIVERIES SHALL CONSTITUTE A FIRM CONTRACT ON THE TERMS AND CONDITIONS OF THE QUOTATION.

CREDIT TERMS

Terms of payment shall be net thirty (30) days from invoice date, unless otherwise specified by Seller. All shipments shall at all times be subject to the approval of Seller’s Credit Department, and if Buyer’s financial responsibility is unsatisfactory, or becomes impaired, or if Buyer fails to make any payment for the goods specified herein or any other goods purchased from Seller when due then, in any such event, Seller may postpone or decline to make any shipments except upon receipt of satisfactory security or payment of cash in advance of shipment, or Seller may cancel any or all contracts with Buyer. If Buyer fails to make payment as provided herein, a service charge of 2% per month shall be charged to all unpaid balances due, and Buyer shall pay all costs and expenses, (including, but not limited to, counsel fees and expenses) incurred in connection with all efforts and attempts to collect payment.

CANCELLATION; RETURNS

After confirmation by Seller, the Buyer’s purchase order may not be cancelled by Buyer except with Seller’s express written consent. Returns must be approved by Seller in writing, and shall only be approved by Seller though the issuance of a Return Goods Authorization. Seller shall only issue a Return Goods Authorization if Buyer provides Seller with information which Seller, in its sole discretion, deems sufficient to demonstrate that the return is appropriate. Returns are subject to restocking and transportation fees. Stock products must be returned in reusable and resalable condition if Seller consents to the return.

DELIVERY; TITLE; RISK OF LOSS

Unless the Quotation expressly states otherwise, (a) all deliveries of the goods sold to Buyer from Seller’s shipping point (in the United States) to a United States location are F.O.B., Seller’s facility, and (b) all deliveries of the Product from Seller’s location (in the United States) to an international location are EX Works, Seller’s shipping point. Buyer is responsible for all duties, taxes and other charges payable upon export. Title shall pass to Buyer at Seller’s point of shipment. Buyer is responsible for compliance with all import and export control laws and regulation. Buyer must obtain, at its sole cost and expense, all import, export and re-export approvals, licenses and clearances required for the goods sold to Buyer and shall retain documentation evidencing compliance with said laws and regulations. All delivery dates are approximate and Seller shall not be responsible for any damages of any kind resulting from any delay. Buyer agrees to accept partial or pro rata deliveries as full performance in the event Seller cannot fulfill an entire order.

DELAYS

Seller shall not be liable for failure to deliver or delays in delivery occasioned by or due to any Force Majeure event. Force Majeure is an event beyond the reasonable control of Seller and may include, but is not limited to, (a) fires, earthquakes, floods, tropical storms, hurricanes, tornadoes, severe weather conditions or any other acts of God; (b) any act of any government, (c) labor strikes or lockouts, (d) riots, strife, insurrection, civil disobedience, landowner disturbances, armed conflict, terrorism or war, declared or not(or impending threat of any of the foregoing) and (e) any shortage or inability to obtain any material or component. In the event of Seller’s inability, for any cause beyond its control, to fill Buyer’s order, Seller may allocate its available supply of the goods ordered among any or all Buyers, on such basis as Seller in its sole discretion may decide, without liability to Buyer for any failure to perform its contractual obligations which may be a consequence thereof.

INSPECTION

The goods sold to Buyer are presumed inspected and accepted unless Seller receives written notice of rejection from Buyer explaining the basis for rejection within thirty (30) days from the date of shipment and Buyer returns the goods sold to Buyer to Seller in accordance with Seller’s written instructions. Goods returned must be returned by Buyer in the same condition as Buyer received the goods, undamaged from the acts or omissions of Buyer. Goods determined by Seller, in its sole discretion, to be defective or non-conforming shall upon return, at Seller’s option and as Seller’s obligation and Buyer’s sole remedy, be replaced or repaired by Seller without any additional charge or Seller may credit the purchase price of such goods to Buyer’s account with Seller. Seller shall pay return transportation charges on returned goods not exceeding the transportation charges applicable to shipment from original destination, unless the returned goods are found by Seller to be neither defective nor non-conforming, in which case, Buyer shall pay such charges. Returned goods which are determined by Seller, in its sole discretion, to be neither defective nor non-conforming shall be held by Seller for Buyer’s shipping instructions, which instructions Buyer shall furnish promptly upon request. If Buyer does not furnish its shipping instruction within five (5) days of Seller’s request therefore, Seller may ship such returned goods to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Seller places such returned goods into storage, the following apply: (a) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (b) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (c) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller’s invoices; and (d) when conditions permit and upon payment of all amounts due, Seller shall make such returned goods available to Buyer for delivery at Buyer’s expense.

WARRANTY

Seller warrants that the goods sold to Buyer shall be free from defects in materials and workmanship, subject to an acceptable quality limit of one percent (1%), for thirty (30) days from the date of shipment, provided, however, that this warranty shall not apply to goods that Seller does not manufacture, but merely procures for Buyer. THIS WARRANTY IS SELLER’S SOLE OBLIGATION AND IS EXCLUSIVE AND IN LIEU OF ALL OTHER REMEDIES OR WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING ANY WARRANTY OF PERFORMANCE, MERCHANTIBILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND SUPERSEDES AND EXCLUDES ANY ORAL OR WRITTEN WARRANTIES OR REPRESENTATIONS, MADE OR IMPLIED IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR OTHER MATERIALS. SELLER FURTHER DISCLAIMS ANY AND ALL RESPONSIBILITY TO BUYER OR TO ANY OTHER PERSON FOR INJURY OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY (A) ANY GOOD WHICH HAS BEEN SUBJECTED TO MISUSE, NEGLIGENCE, OR ACCIDENT, OR HAS BEEN MISAPPLIED, MODIFIED, OR REPAIRED BY A PERSON OR PERSONS NOT AUTHORIZED BY SELLER, OR HAS BEEN IMPROPERLY INSTALLED OR (B) ANY GOOD WHICH HAS BEEN MANUFACTURED FROM BUYER’S PATTERNS, PLANS, DRAWINGS OR SPECIFICATIONS, OR HAS BEEN MANUFACTURED WITH BUYER’S RAW MATERIALS. All claims for alleged defects in goods or for alleged nonconformance in goods shall be deemed waived by Buyer unless made in writing, delivered to Seller within (30) days from the date of shipment. Buyer shall afford Seller prompt and reasonable opportunity to inspect all goods as to which any claim is made. Upon receipt of shipping instructions from Seller, Buyer shall return all allegedly defective goods, or allegedly non-conforming goods, to Seller. Goods returned must be returned by Buyer in the same condition as Buyer received the goods, undamaged from the acts or omissions of Buyer. Goods determined by Seller, in its sole discretion, to be defective or non-conforming shall upon return, at Seller’s option and as Seller’s obligation and Buyer’s sole remedy under this warranty, be replaced or repaired by Seller without any additional charge or Seller may credit the purchase price of such goods to Buyer’s account with Seller. Seller shall pay return transportation charges on returned goods not exceeding the transportation charges applicable to shipment from original destination, unless the returned goods are found by Seller to be neither defective nor non-conforming, in which case, Buyer shall pay such charges. Returned goods which are determined by Seller, in its sole discretion, to be neither defective nor non-conforming shall be held by Seller for Buyer’s shipping instructions, which instructions Buyer shall furnish promptly upon request. If Buyer does not furnish its shipping instruction within five (5) days of Seller’s request therefore, Seller may ship such returned goods to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Seller places such returned goods into storage, the following apply: (a) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (b) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (c) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller’s invoices; and (d) when conditions permit and upon payment of all amounts due, Seller shall make such returned goods available to Buyer for delivery at Buyer’s expense. SELLER’S LIABILITY SHALL IN NO EVENT EXTEND BEYOND REPLACEMENT, REPAIR OR REFUND OF THE PURCHASE PRICE, AS PROVIDED ABOVE. SELLER SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF THESE DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, NON-DELIVERY, SERVICING, USE OR LOSS OF USE OF THE GOOD OR ANY PART THEREOF, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED RELATED THERETO, INCLUDING, BUT NOT LIMITED TO, WAREHOUSING, LABOR, HANDLING AND SERVICE CHARGES, AND DIE, EQUIPMENT AND MACHINE BREAKAGE.

CHANGES; WAIVERS

The Quotation constitutes the entire agreement between Buyer and Seller relating to the purchase and sale of the goods sold to Buyer. No modification of the Quotation shall be binding upon Seller unless in writing signed by Seller’s duly authorized representative. No modification of the Quotation shall be effected by the acknowledgment or acceptance of Buyer’s purchase order or any other document containing terms and conditions at variance with or in addition to the Quotation, all such varying or additional terms being deemed invalid. Seller’s exercise or failure to exercise or enforce any right or remedy granted or provided by the Quotation or its acceptance of payment for the goods sold to Buyer shall not be deemed as or construed to be a waiver of any right or remedy it may have for Buyer’s then existing or subsequent default, breach or compliance thereunder. No waiver by Seller of default or breach by Buyer shall be deemed a waiver of any subsequent default or breach.

INTELLECTUAL PROPERTY

Buyer agrees it shall not, and shall not attempt to, copy, disassemble or reverse engineer nor permit anyone else to, or attempt to, copy, disassemble or reverse engineer any of the goods sold to Buyer or any part thereof, or any pattern, plan, drawing, specification, instruction or depiction thereof, without written approval of Seller, and that it shall not knowingly, directly or indirectly, violate or infringe upon or contest the validity of any patent, license or other right of Seller pertaining to any of the goods. Where any of the goods sold to Buyer is manufactured from patterns, plans, drawings or specifications furnished by Buyer (including, but not limited to, Buyer’s trademarks and brand names), Buyer shall indemnify, defend and hold harmless Seller and its subsidiaries, affiliates and agents, and their respective employees, officers, directors, managers, shareholders and members (collectively, “Indemnitees”) from and against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including investigation expenses and attorneys’ fees) that an Indemnitee may incur or be obligated to pay arising out of, or as a result of any infringement or alleged infringement of any patent, trademark, copyright or other right because of Seller’s manufacture of such good or because of the use or sale of such good by any person.

MISCELLANEOUS

Neither the Quotation in its entirety nor any rights or interest therein may be assigned by Buyer without the written agreement of Seller. Any such attempted assignment shall be void. The invalidity, illegality, or unenforceability of any one or more provisions the Quotation shall in no way affect or impair the validity, legality, or enforceability of the remaining provisions thereof, which shall remain in full force and effect. The construction, interpretation and performance of the Quotation and Buyer’s acceptance thereof and all transactions thereunder shall be governed by the laws of the State of New Jersey without regard to conflicts of law principles. Buyer and Seller agree that the proper venue for all actions arising in connection with the Quotation shall be deemed exclusively proper in state court in Bergen County, New Jersey or in the federal court for the District of New Jersey in Newark, New Jersey, and the parties agree to submit to such jurisdiction and to waive any claim that such courts are an inconvenient forum. Further, the United Nations Convention on the International Sale of Goods (1980) (as amended from time to time) shall not apply to the Quotation or any transactions thereunder.