STAUB METALS CORPORATION (“Seller”)

TERMS AND CONDITIONS OF SALE

All Quotations, Purchase Orders, Order Confirmations, Order Acknowledgements, Invoices or any other form (in any media) for placing orders (an “Order,” as defined by those documents expressly referred to herein constituting an order) for the purchase of goods or services from Seller (the “Goods”) by a buyer (“Buyer”) are expressly made subject to the terms and conditions set forth herein (“Terms and Conditions”).

1. QUOTES AND ORDERS; PRICE AND TAXES.  All quotations by Seller, whether oral or written, or in any other media, shall be offers to sell by Seller at the quoted prices and on the terms set forth therein (a “Quote” or “Quotation”).  All such Quotations are subject to change without notice and are subject to continued availability of the quoted materials and, unless otherwise agreed, are binding upon Seller only if Buyer immediately submits an Order.  All contracts to sell are subject to strikes, accidents or other causes of any kind beyond Seller’s reasonable control.  No Order placed with Seller shall be binding upon Seller until full specifications identifying the material being ordered have been provided to Seller and the Order has been accepted by Seller.  Acceptance is defined by the faxed receipt of Seller’s order acknowledgment.  Buyer may not, except with Seller’s written consent, cancel any Order for material which Seller has special-ordered from the mill, which Seller has cut or otherwise processed in accordance with Buyer’s instructions, or which Seller has shipped.  All special-order material is subject to final mill acceptance.  Seller will, at Buyer’s request, estimate the anticipated time of delivery of any Order, but Seller shall not have any liability for non-timely delivery.  In the event that an Order is placed with Seller by telephone and Buyer does not send Seller a confirming order before Seller ships in response to the Order, Seller’s records as to the terms of the Order shall be conclusive.  All prices for Goods are quoted and payable in United States currency, unless otherwise agreed by Seller in writing.  All prices are F.O.B. Seller’s factory in Los Angeles, California, unless otherwise agreed to by Seller in a Quote or Quotation or in another form of writing.  Seller shall have the right to correct any obvious errors in price.  Prices do not include any applicable taxes.  All applicable taxes which, as now existing or implemented by future law, Seller may be required to pay or collect with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the Goods shall be paid by Buyer to Seller upon demand by Seller.  Seller shall not be obligated to, but may in its discretion, make such demand as part of Seller’s delivery receipt or invoice form.
2. TITLE, RISK OF LOSS AND DELIVERY.  The Goods shall be sold and delivered F.O.B. Seller’s factory in Los Angeles, California, and delivery of the Goods to Buyer shall be deemed to have taken place upon tender of the Goods to the shipping carrier in Los Angeles, California, whereupon the title to and risk of loss of the Goods shall pass to Buyer.  Buyer must note any shortage or damage to the Goods on both Buyer’s copy and the carrier’s copy of the shipping manifest to be signed by the carrier’s driver or representative.  Seller will be responsible for any shortage or damage only (i) in the case of a carrier that is owned or operated by or affiliated with Seller, if Seller establishes to Seller’s reasonable satisfaction that there was in fact a shortage in the delivery or that the damage occurred prior to receipt of the Goods by Buyer, as applicable, or (ii) in the case of any carrier that is not owned or operated by or affiliated with Seller, if Seller is able to recover the shortage or damage from such carrier.  Notwithstanding anything herein to the contrary, Seller reserves the right to ship plus or minus two and one-half percent (2½%) of the quantity ordered, and such Order will be deemed complete when shipped within such two and one-half percent (2½%) range.  Shipments in installments shall be permitted.  Buyer shall provide insurance for no less than the total amount owing to Seller with loss first payable to Seller.  Delivery dates for any Goods are approximate, are provided to Buyer for the convenience of Buyer, and shall not be binding upon Seller or considered material to the performance of these Terms and Conditions.  Shipping schedules and shipping commitments are based upon current production capabilities, material availability and inventory, and may be changed by Seller at Seller’s option, as conditions and circumstances may require.
3. INSPECTION, ACCEPTANCE AND RETURN OF GOODS; EXCLUSIVE REMEDY.  Buyer shall have ten (10) business days from the date of delivery of the Goods to inspect the Goods to determine whether the Goods: (a) conform to the Order, or other shipping document, as applicable, or (b) are damaged, visibly defective or otherwise nonconforming.  Buyer must assert any claim for the foregoing within such ten-day period by furnishing Seller with detailed written information of such damage, nonconformance, defect or shortage (“Notice of Rejection”).  Conditioned upon such Notice of Rejection, Seller will, at Seller’s option and as Buyer’s exclusive remedy, (i) replace the material that is defective (the “Nonconforming Goods”) with new material at the time of shipment, (ii) repair the Nonconforming Goods, or (iii) refund the purchase price allocated to the Nonconforming Goods.  In the event inspection and a Notice of Rejection are not made within such ten-day period, Buyer shall be deemed to have accepted the Goods.  No returns can be made without the prior authorization of Seller and a pre-assigned return authorization number issued by Seller.  All returns are subject to inspection and acceptances by Seller.  When returns are accepted, they are subject to a handling and re-inspecting charge to be determined by Seller.  All returns shall be in accordance with Seller’s specific shipping instructions.  UNDER NO CIRCUMSTANCES SHALL SELLER BE RESPONSIBLE FOR ANY OTHER DAMAGE, INCLUDING ANY DIRECT OR CONSEQUENTIAL DAMAGE OR LOSS ARISING FROM CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, LOSS OR DAMAGE TO BUILDINGS, CONTENTS, PRODUCTS, OR PERSONS (OTHER THAN INJURY TO PERSONS IN RESPECT OF WHICH LIABILITY IS IMPOSED BY LAW).  Buyer must immediately discontinue use of any item claimed to be defective.  No charge by Buyer for labor or expense required to repair defective material or occasioned by it will be allowed.
4. PAYMENTS AND SUSPENSION OF PERFORMANCE.  Unless payment for the Goods is due in full upon delivery or in advance pursuant to the Quote for such Goods, all invoices shall be due and payable in full, without set-off or reduction, within thirty (30) days from the invoice date.  Extensions of credit may be changed or withdrawn at any time.  Buyer shall pay an interest charge of the lesser of ten percent (10%) per annum, or the highest rate permitted by law, on any amount past due and owing by Buyer to Seller on any invoice, until paid in full to Seller.  If, in Seller’s judgment, reasonable doubt exists as to Buyer’s financial responsibility, or if Buyer is past due in payment of any amount owing to Seller, Seller reserves the right, without liability and without prejudice to any other remedies, to suspend performance, decline to ship, or stop any material or the Goods in transit, until Seller receives payment of all amounts owing to Seller, whether or not due or adequate assurance of such payment has been made by Buyer to Seller.
5. TECHNICAL ADVICE.  None of Seller’s agents, employees or representatives has any authority to bind Seller to any affirmation, representation or warranty other than those stated herein or on Seller’s delivery receipt or invoice form.  In particular, any technical advice Seller furnishes with respect to the use of material is given without charge, and Seller shall have no obligation or liability for the advice given or the results obtained, all such advice being given and accepted as a courtesy to Buyer and at Buyer’s risk.
6. WARRANTY.  Seller warrants that all material, at the time of shipment by Seller, shall conform to any specification set forth on the face of Seller’s delivery receipt or invoice and shall conform to the description contained in the Certificate of Tests or Certificate of Compliance if either has been furnished by Seller in connection with a sale.  Seller’s warranty is limited to a period of one (1) year from the date of shipment from Seller’s factory or the expected life of the goods, whichever is shorter.  The Goods shall be subject to tolerances and variations consistent with usual industry practices or with Seller’s current parts/engineering catalogs where applicable.  Seller assumes no liability for specifications agreed upon, reviewed or provided by Buyer.  Seller does not warrant against, and this limited warranty does not apply to, any non-conformity to the extent that such non-conformity results from damage, misuse, abrasion, corrosion, negligence, accident, tampering, faulty installation, improper storage, inadequate maintenance, or any other cause affecting the material after shipment of the material.   If any defect in material or workmanship occurs during the applicable warranty period in any of the Goods, as determined by Seller’s inspection of the non-conforming Goods, Buyer’s sole and exclusive remedy shall be as set forth in Section 3 of these Terms and Conditions.
7. WARRANTY DISCLAIMER.  OTHER THAN THE LIMITED WARRANTY SET FORTH IN SECTION 6 OF THESE TERMS AND CONDITIONS, SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, WITH RESPECT TO THE  GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO ACCURACY, FUNCTIONALITY, PERFORMANCE OR MERCHANTABILITY.  SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE.  ANY PERFORMANCE ESTIMATES DESCRIBED IN ANY OF SELLER’S WRITTEN OR ELECTRONIC OR MAGNETIC MEDIA PROPOSALS OR QUOTES OR QUOTATIONS, ARE ONLY ESTIMATES AND ARE NOT INTENDED AS EXPRESS WARRANTIES.  ANY SAMPLES SUBMITTED BY SELLER TO BUYER, AND ANY DESCRIPTIONS, ILLUSTRATIONS OR FORECASTS IN TRADE LITERATURE, BROCHURES OR OTHER DOCUMENTATION OR ELECTRONIC OR MAGNETIC MEDIA SHALL NOT BE CONSTRUED AS WARRANTIES AS TO SUBSTANCE, PERFORMANCE, QUALITY, WEIGHT OR DIMENSION, AND ANY FAILURE TO CONFORM WITH SUCH SAMPLES, DESCRIPTIONS, FORECASTS OR ILLUSTRATIONS SHALL NOT CONSTITUTE ANY BREACH OF THESE TERMS AND CONDITIONS.  NO SALES PERSONNEL, EMPLOYEES, AGENTS OR REPRESENTATIVES OF SELLER AND NO THIRD PARTIES ARE AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY OR COVENANT, WHETHER IN WRITING OR ORALLY, ON BEHALF OF SELLER, OTHER THAN THE LIMITED WARRANTY IN SECTION 6 ABOVE.  BY PLACING AN ORDER WITH SELLER, BUYER AFFIRMS THAT BUYER HAS NOT RELIED UPON THE SKILL OR JUDGMENT OF SELLER OR ANY OF SELLER’S AGENTS, EMPLOYEES OR REPRESENTATIVES TO SELECT OR FURNISH MATERIAL FOR ANY PARTICULAR PURPOSE, AND THE SALE IS MADE WITHOUT ANY WARRANTY BY SELLER THAT THE MATERIAL IS SUITABLE FOR ANY PARTICULAR PURPOSE.
8. NO PART OF BASIS OF BARGAIN.  Except for the specifications and certificates (if any) specifically referred to above, any description of the material or service contained on Seller’s sales forms or any other correspondence is for the sole purpose of identifying it, is not a part of the basis of the bargain, and does not constitute a warranty that the material or service shall conform to that description.  The use of any sample in connection with a sale for illustrative purposes only, is not part of the basis of the bargain, and is not to be construed as a warranty that the material will conform to the sample.  Any affirmation of fact or promise made by Seller is not part of the basis of the bargain and shall not constitute a warranty that the material will conform to the affirmation or promise.
9. TOOLS, DIES, FIXTURES AND TECHNICAL DATA.  Unless otherwise required by applicable law, any tools, dies, fixtures or technical data that Seller may develop for use in production of the Goods shall remain the sole property of Seller.  Where Seller furnishes Buyer with technical data that will be used under a contract with the United States Government, Buyer shall affix the following legend upon such technical data: “Technical data contained herein are proprietary to STAUB METALS CORPORATION and may not be used, disclosed, reproduced, modified or displayed without the prior written approval of STAUB METALS CORPORATION.  U. S. Government license rights are limited to those mandatory rights identified in DFARS 252.7015(b) and/or to the rights identified in STAUB METALS CORPORATION ’S commercial license agreement.”
10. LIMITATION OF ACTIONS.  No action against Seller for breach of any sales agreement or Order for Goods, Quote or Quotation, or these Terms and Conditions may be brought more than one (1) year after the cause of action accrues.
11. FORCE MAJEURE.   Seller shall not be liable for any failure to perform in accordance with an Order, including, without limitation, failure to deliver the Goods caused for any reason, in whole or in part, beyond Seller’s reasonable control, including, but not limited to, production schedules of Seller’s suppliers, unavailability of materials, labor disturbances, acts of God, earthquake, fire, flood, weather, terrorism or transportation difficulties.
12. CANCELLATION.  Except as set forth in this Section 12, an Order may be cancelled or modified only by written agreement between Buyer and Seller.  Buyer’s insistence upon canceling or suspending fabrication or shipment, or Buyer’s failure to furnish specifications when required, may be treated by Seller as a breach of contract by Buyer, and Seller may cancel any unshipped balance of Goods without prejudice to any other remedies Seller may have.
13. ENTIRE AGREEMENT.  These Terms and Conditions, together with the other documents expressly referred to herein constituting an Order, constitute the entire agreement under which Seller is supplying the Goods for sale to Buyer.  No other terms, condition, or understanding, whether oral or written, shall be binding upon Seller, unless concurrently herewith or hereafter made in writing and signed by Seller’s authorized representative.
14. NO WAIVER.  No waiver of any term, provision, covenant or condition of these Terms and Conditions by Seller, whether by conduct or otherwise, in any one or more instances, shall be deemed or construed as a further or continuing waiver of any such term, provision, covenant or condition or as a waiver of any other term, provision, covenant or condition hereof.
15. SUCCESSORS AND ASSIGNS.  The rights, duties, agreements and obligations hereunder, or any portion thereof, shall be binding upon and inure to the benefit of Seller and Buyer and their respective successors and assigns.
16. GOVERNING LAW; CONSENT TO JURISDICTION.  California law, without regard to conflict or choice of law principles, shall govern the construction and interpretation of these Terms and Conditions and any Orders.  Buyer and Seller agree that all actions or proceedings arising directly or indirectly from these Terms and Conditions and any Order shall be arbitrated or litigated before arbitrators or in courts having a situs within Los Angeles County, California, and hereby consent to the jurisdiction of any local, state or federal court in which such an action is commenced that is located in Los Angeles County, California and agree not to disturb such choice of forum.  It is the express intention of both Buyer and Seller to opt out of the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”), as applicable.  Should any provision of this Section 16 be found by a court of competent jurisdiction to be void, invalid or unenforceable, Buyer’s and Seller’s express opt out from the CISG as governing law shall continue to be in effect.
17. ATTORNEYS’ FEES AND RELATED EXPENSES.  If an action (including arbitration) is brought to interpret or enforce any of the terms of these Terms and Conditions or an Order, or because of a party’s breach of any provision of the same, the losing party shall pay the prevailing party’s attorneys’ fees, costs and expenses, court costs and other costs of action incurred in connection with the prosecution or defense of such action, whether or not the action is prosecuted to a final judgment.  In addition to the foregoing award of attorneys’ fees, the prevailing party shall be entitled to its attorneys’ fees incurred in any post-judgment proceeding to enforce any judgment in connection with these Terms and Conditions or an Order.
18. INDEMNIFICATION.  Buyer shall indemnify, defend and hold harmless Seller and each of its shareholders, directors, officers, employees, attorneys, agents, affiliated persons or entities, and their respective successors and assigns, from and against any and all claims relating to, in connection with or arising from: (a) any breach by Buyer of any provisions of these Terms and Conditions; (b) any claim or suit for actual or alleged violation or infringement of any United States patent or United States copyright of any third party arising from Buyer’s designs, specifications or instructions to Seller; (c) any unauthorized modification, alteration, adaptation or use of the Goods; and (d) any claim or suit for damages arising from acts, representations or omissions of Buyer related to Buyer’s sale of the Goods, use of the Goods or incorporation of the Goods into a product or part thereof.  Seller shall have the right to control the defense of any such claim, including, without limitation, authority to settle any such claim and seek reimbursement from Buyer and select counsel.
19. SEVERABILITY.  If any provision of these Terms and Conditions or an Order, as applied to any party or to any circumstance shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of these Terms and Conditions, together with the other documents expressly referred to herein constituting an order, the application of any such provision in any other circumstance, or the validity or enforceability of these Terms and Conditions or an Order, and any provision that is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.
20. ACCEPTANCE.  Seller’s sales are made pursuant to Seller’s terms and conditions.  If Seller receives a purchase order or other document from a Buyer that limits acceptance to its terms or states that Seller’s acknowledgement, shipping of material, commencing work, or other act or failure to act constitutes acceptance of any offer on the terms of the purchase order or other document, any responding document sent by Seller which expresses acceptance or confirms the order is expressly conditioned on Buyer’s assent to the terms set forth herein and in such Order, and in such responding document.  Such assent shall be deemed given when the Buyer accepts shipment of any of the material described.  Seller hereby objects to any term contained in a Buyer’s purchase order or other document if the term is different from or in addition to the terms herein.

STAUB METALS CORPORATION (“Buyer”)

TERMS AND CONDITIONS OF SALE

All Quotations, Purchase Orders, Order Confirmations, Order Acknowledgments, Invoices or any other form (in any media) for placing orders (an “Order,” as defined by those documents expressly referred to herein constituting an order) for the purchase of goods or services by Buyer (the “Goods”) from a seller (“Seller”) are expressly made subject to the terms and conditions set forth herein (“Terms and Conditions”).

1. ORDERS AND ACCEPTANCE.  All Orders by Buyer, whether oral or written, or in any other media, shall be offers to purchase Goods by Buyer at the quoted prices and on the terms set forth therein.  No Order placed by Buyer shall be binding upon Buyer until the Order has been accepted by Seller.  Written or verbal acceptance of an Order, Seller’s submission of samples, and/or the provision of the Goods to Buyer by Seller shall constitute Seller’s assent to these exclusive terms and conditions of purchase. Buyer hereby expressly objects to and rejects any and all additional or different terms proposed by Seller (including, without limitation, any attempted disclaimer, any limitation of warranties or liability, or any modification of the manner of acceptance), irrespective of where contained, and no such different or additional terms shall form part of this contract or be binding on Buyer. Buyer’s acceptance of or payment for goods or services shall not constitute Buyer’s acceptance of any counter-proposal submitted by Seller unless otherwise specifically and directly accepted in a writing signed by Buyer.  Any reference in an Order to any offer to sell or proposal of Seller is solely for the purpose of incorporating the descriptions and specifications of the goods and/or services contained in the offer or proposal to the extent that those descriptions and specifications do not conflict with the descriptions and specifications contained in or referred to on the face of such Order.
2. PRICE, TERMS OF SHIPMENT AND TAXES.  Unless otherwise agreed, prices shall remain fixed for the duration of Buyer’s order.  Seller warrants that the prices of the items covered by an Order are not and shall not be  in excess of Seller’s lowest lawful prices for comparable quantities of similar items.  If Buyer has reasonable cause to believe that Seller has violated this covenant, Seller agrees that Buyer or its representatives may, upon request, audit the records of Seller for the sole purpose of establishing Seller’s compliance herewith.  Any discount period provided herein shall begin either upon the date of delivery at destination, or the date of mailing of invoice, whichever is later.    Buyer shall have the right to correct any obvious errors in price made in an Order or any other form of an offer to purchase Goods.  No charge will be allowed for packing or shipment unless stated on an order.  Bills of lading must accompany each invoice.  Orders not accompanied by packing lists will be conclusively presumed to be in the amount of Buyer’s count and weight.  All goods covered by an Order shall be shipped “FOB destination.”  Risk of loss and title to all goods shall pass to Buyer only upon delivery to Buyer’s specified destination.  All transportation charges for goods must be prepaid and no charges for unauthorized transportation will be allowed. Except for any state or local sales, use or other taxes from which an exemption is available to Buyer for the purposes hereof, all prices payable by Buyer include all applicable federal, state and local taxes.  Seller agrees to accept, apply and submit tax exemption certificates when supplied by Buyer, if acceptable, to the appropriate taxing authorities.  When an Order requires, or the specifications referred to herein requires, documentation or certification, this requirement shall be a material requirement of an Order, and Seller’s failure to provide such information prior to or at the time of delivery shall entitle Buyer to withhold payment until such documentation or certification is provided by Seller.
3. TITLE, RISK OF LOSS AND DELIVERY.  Title to the Goods and the risk of loss of the Goods shall pass to Buyer when the Goods are accepted by Buyer upon tender, and off-loaded at Buyer’s facility or other designated site, as may be specified on an Order.  Seller will be responsible for any shortage or damage.  Shipments in installments shall be permitted only if specifically noted on an Order.  Seller shall provide its own insurance for no less than the total amount owing to itself.  Time is of the essence in connection with the delivery of the Goods.  Seller shall advise Buyer within five (5) business days of Seller’s knowledge that any delivery may be delayed.  In the event that delivery of the Goods is delayed, Buyer may, in its sole discretion, cancel an Order, or any portion of an Order, and/or purchase substitute goods in the same quantity as the Goods delayed.  If Buyer elects to purchase substitute goods, Seller shall reimburse Buyer for the difference in price between the substitute goods and delayed goods.  Quantities in excess of the amount requested by an Order, if rejected pursuant to Section 4, will be returned at Seller’s sole risk and expense. Any excess quantities that Buyer accepts shall be at the same price as the Order with which it shipped, or a reduced price agreed to be agreed to by Buyer and Seller.  If Seller refuses to pay for the costs and expenses of the return of the excess Goods, Buyer may, in its sole discretion, elect to retain a portion of the excess Goods in order to pay for the costs and expenses of return of the rest of the excess Goods, including, but not limited to, the cost of freight and insurance, as well as administrative costs and attorneys’ fees.  For the purpose of determining the monetary value to Buyer of any excess Goods retained pursuant to the foregoing sentence, such retained excess Goods shall be valued at Seller’s cost.
4. INSPECTION, ACCEPTANCE AND RETURN OF GOODS.  All goods or work furnished by Seller shall be subject to inspection and verification of count, quality and conformity with Buyer’s specifications.  Buyer shall have the right to reject and return, at Seller’s risk, any goods or work which fail to conform to Buyer’s specifications. Alternatively, Buyer may, at Buyer’s option, (a) correct or have corrected any such defect or nonconformity at Seller’s expense; or (b) make an equitable adjustment to the price for such goods on account of the defect or nonconformity.  Buyer’s acknowledgment of receipt shall not release Seller from any liability for defects discovered after delivery.  Buyer’s payment to Seller shall not constitute acceptance.
5. PAYMENTS.  Unless payment for the Goods is due in full upon delivery or in advance pursuant to the Order for such Goods, all invoices shall be due and payable in full, subject to any set-off or reduction, within forty-five (45) days from the invoice date.  Any extensions of credit by Seller to Buyer may only be modified by Seller with thirty (30) days advance written notice to Buyer of such modification.
6. TECHNICAL ADVICE.  Buyer may rely upon Seller’s agents, employees and representatives to any affirmation, representation or warranty.  In particular, any technical advice Seller furnishes with respect to the use of material is given as with the intention that Buyer may rely upon such information and depend on such information as the basis for placing an Order.
7. WARRANTIES/PROHIBITION AGAINST EXCLUSION OF WARRANTIES.  SELLER EXPRESSLY WARRANTS TO BUYER THAT ALL MATERIALS, WORK OR GOODS COVERED BY AN ORDER WILL (a) CONFORM TO THE SPECIFICATIONS AND OTHER DESCRIPTIONS FURNISHED BY BUYER, (b) BE FREE FROM DEFECTS IN OR CLAIMS AGAINST GOOD TITLE THERETO, (c) BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP, (d) BE MERCHANTABLE IN ALL RESPECTS, (e) BE FIT FOR THE PARTICULAR PURPOSE FOR WHICH BUYER INTENDS TO USE SUCH GOODS, (f) NOT HAVE COME IN CONTACT WITH OR BEEN CONTAMINATED BY MERCURY, OR ANY OTHER LOW MELTING POINT METAL OR MATERIAL, (g) COMPLY WITH ALL APPLICABLE STATE LAWS REGARDING THE REGULATION OF  TOXIC SUBSTANCES THAT CAUSE CANCER AND/OR BIRTH DEFECTS, INCLUDING, BUT NOT LIMITED TO, THE CALIFORNIA SAFE DRINKING WATER AND TOXIC ENFORCEMENT ACT OF 1986 (“PROP. 65”), AND (h) PROVIDE DOCUMENTATION, INCLUDING, BUT NOT LIMITED TO, CHEMICAL PROPERTY ANALYSIS, CHEMICAL PROFILES, AND CERTIFICATION OF THE GOODS.  ANY ATTEMPT BY SELLER TO EXCLUDE, LIMIT, DISCLAIM OR RESTRICT ANY OF THE FOREGOING WARRANTIES , WHETHER CONTAINED IN SELLER’S ACKNOWLEDGMENT, INVOICE OR OTHERWISE, SHALL BE NULL, VOID AND UNENFORCEABLE AGAINST BUYER IN ALL RESPECTS.  BUYER SHALL NOT BE DEEMED TO WAIVE ANY WARRANTY BY REASON OF RECEIPT, ACCEPTANCE OR PAYMENT.  IF BUYER SHALL GIVE SELLER NOTICE OF ANY DEFECT OR NON-CONFORMITY WITHIN ONE YEAR FROM THE DATE OF DELIVERY, SELLER SHALL, AT NO COST TO BUYER, PROMPTLY FURNISH REPLACEMENT GOODS OR REFUND BUYER’S PURCHASE PRICE.  ALL WARRANTIES SHALL RUN BOTH TO BUYER AND TO BUYER’S CUSTOMERS.
8. LIMITATION OF ACTIONS.  No action against Buyer for breach of any sales agreement or Order, or these Terms and Conditions may be brought more than one (1) year after the cause of action accrues.
9. SELLER’S EXCLUSIVE REMEDY/BUYER’S LIMIT OF LIABILITY.  SELLER’S SOLE AND EXCLUSIVE REMEDY AND BUYER’S ABSOLUTE LIMIT OF LIABILITY IN CONNECTION WITH ANY LAWSUIT, CLAIM OR CAUSE WHATSOEVER DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS TRANSACTION WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY OF RECOVERY SHALL IN ALL CASES BE STRICTLY LIMITED TO THE CONTRACT PRICE FOR THE MATERIALS OR WORK ORDERED BY BUYER.  SELLER ACKNOWLEDGES AND AGREES THAT THE FOREGOING EXCLUSIVE REMEDY SHALL BE SELLER’S SOLE REMEDY EVEN IF SUCH REMEDY  FAILS  IN ITS ESSENTIAL PURPOSE FOR ANY REASON  WHATSOEVER.  IN NO EVENT SHALL BUYER BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES TO SELLER OR ANY THIRD PARTY.
10. TERMINATION/CANCELLATION.   (a)  Buyer shall have the right to terminate an Order, at any time, without cause, for Buyer’s convenience.  Upon receipt of notice of termination, Seller shall immediately discontinue performance and shall comply with Buyer’s instructions concerning the disposition of completed and partially completed items, work in progress and materials acquired pursuant to an Order.  In the event of a termination, without cause, Seller shall be reimbursed for the reasonable costs incurred by Seller prior to termination.  (b)  Buyer may terminate an Order on ten (10) days written notice to Seller, if Seller:  (i) fails to perform any of Seller’s obligations under an Order; or (ii) demonstrates an inability to perform an Order in accordance with its terms; or (iii) becomes insolvent, makes a general assignment for the benefit of creditors or files a petition under any bankruptcy act or similar statute.  Upon the termination of an Order, Buyer may procure, upon such terms as Buyer shall deem appropriate, goods or services similar to the goods and services so described in an Order, and Seller shall be liable to Buyer for any excess costs incurred by Buyer.
11. COMPLIANCE WITH APPLICABLE LAW.  Seller agrees that it will comply with all federal, state and local laws and regulations applicable to the production, sale, labeling and delivery of the goods and the performance of any work set forth herein.  Seller shall not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin and shall not maintain any segregated facilities at Seller’s facilities on the basis of race, creed, color, sex or national origin.  Without limiting the generality of the foregoing, Seller certifies that the materials and work performed by Seller shall be in compliance with the requirements of the Fair Labor Standards Act, the Rehabilitation Act of 1973, the Vietnam Era Veterans Readjustment Assistance Act of 1972, all as amended, and of the regulations issued pursuant thereto.  Seller shall develop and maintain affirmative action programs to employ and advance minorities and minority business enterprises, handicapped workers, disabled veterans and veterans of the Vietnam era.  Upon Buyer’s request, Seller shall furnish promptly all documents required for customs drawback purposes, properly completed in accordance with government regulations applicable thereto. Seller shall furthermore, at its expense, provide all information necessary (including written documentation and electronic transaction records relating to the goods, tooling and equipment necessary for Buyer to fulfill any customs-related or other governmental agency-related obligations, origin marking or labeling requirements and certification or local content reporting requirements, to enable Buyer to claim preferential duty treatment at the time of entry for goods, tooling and equipment eligible under applicable trade preference regimes, and to make all arrangements that are necessary for the goods to be covered by any applicable duty deferral or free trade zone program(s) of the country of import. Seller shall, at its expense, provide Buyer or Buyer’s nominated service provider with all documentation necessary for the export of the goods, tooling and equipment unless otherwise indicated in an Order, in which event Seller shall provide all information as may be necessary to enable Buyer to obtain such licenses or authorization(s). Credits or benefits resulting or arising from any Order, including trade credits, export credits or the refund of duties, taxes or fees , shall belong to Buyer. In addition, Seller is responsible for any incorrect information provided by Seller or any non-compliance with the U.S. Customs Regulations by Seller that results in penalties and/or additional duties for Buyer. Seller also acknowledges and agrees to adhere to all security procedures required by the Customs-Trade Partnership Against Terrorism (C-TPAT). Seller shall share with Buyer any audit or inspection information related to C-TPAT inspection and/or validation at Seller’s location.  By accepting an Order, Seller represents, covenants, and warrants to Buyer that Seller and all subcontractors of Seller are in full compliance with the Anti-Kickback Act of 1986 and amendments thereto (the “Act”). Seller further agrees to indemnify and hold harmless Buyer and its respective directors, officers, and employees from any violation of the Act by Seller or any subcontractors below Seller. All defined terms set forth in the Act apply to this paragraph.
12. AUDIT. (A) Seller, in accordance with generally accepted accounting principles, shall establish an accounting system and maintain current, accurate and complete books and records (whether in printed, electronic or other format) covering (i) all costs, expenditures and revenue associated with the work performed or goods supplied, (ii) all amounts invoiced to and paid by Buyer hereunder, (iii) all claims and other matters involving the business relationship between Seller and Buyer hereunder, and (iv) any other matters relating to an Order (Seller’s foregoing and other below identified records being hereinafter called “Books and Records”). (B) Seller’s Books and Records shall also include (without limitation) all records relating to any (i) changes or extra work, (ii) disputed work, (iii) claim(s) for requested adjustment of the price or time schedule, (iv) entertainment and gifts, (v) business, financial or other transactions between Seller and any Buyer employees, (vi) allowable termination costs and/or other allowable charges covered under an Order, and all other books and records of Seller relating to an Order. (C) Seller’s Books and Records shall be maintained, preserved and open to inspection and/or audit by designated Audit representatives of Buyer during reasonable business hours during the life of an Order and for a period of three (3) years thereafter. In connection with any audit covered hereunder, Seller shall, at all times, cooperate fully with designated representatives of Buyer (i) in arranging interviews with any current or former employees of Seller, (ii) in providing reasonable and appropriate on-site workspace for use by such designated representatives, and (iii) in otherwise producing or making available all Books and Records covered by this provision. (D) Seller, through appropriate provision in its subcontracts and purchase orders, shall require its subcontractor(s) and/or supplier(s) to (i) similarly maintain and preserve current, accurate and complete books and records (as described under this section) relating to each subcontract and/or purchase order awarded or issued by Seller in connection with an Order, (ii) permit the inspection and/or audit thereof by Buyer upon the conditions and time period as provided in this section, and (iii) cooperate fully in the performance of any inspection and/or audit by designated representatives of Buyer hereunder. (E) Any failure by Seller to cooperate fully in producing or making available all Books and Records covered by a Buyer audit request hereunder, so as to permit a timely and complete inspection and audit thereof by Buyer, or any other failure by Seller to comply fully with any of the provisions of this section shall entitle Buyer to terminate an Order for Seller’s default.
13. LIEN WAIVERS; OWNERSHIP. If Goods covered by an Order are to be fabricated, assembled or installed in whole or in part upon Buyer’s premises, Seller shall keep such premises free of all mechanic’s and similar liens arising in connection with Goods covered by an Order and shall execute or cause to be executed and submit with each invoice such lien waivers, sworn statements and related forms as Buyer shall request. Seller shall execute such documents as Buyer may reasonably require as evidence of Buyer’s interest in any equipment or property owned by Buyer in the possession of Seller.
14. ENVIRONMENTAL; HEALTH; MSDS; SAFETY. All materials supplied under an Order must satisfy current governmental and safety considerations on restricted, toxic and hazardous materials; as well as environmental, electrical and electromagnetic considerations (applicable to the country of manufacture and sale) and ANSI, ASME and all other national consensus safety standards. A Material Safety Data Sheet (MSDS) and subsequent revisions thereof that comply with O.S.H.A. requirements (29 C.F.R. 1910.1200) must be provided to the industrial hygiene or safety department at Buyer’s using location with the initial shipment and first shipment after revisions for all hazardous materials that are the subject of an Order. The MSDS must indicate the Order number and release number and the in-plant receiving location truck stop number and phone number shown on the face of an Order. All containers of hazardous materials shall be properly labeled in accordance with Section 1910.1200, paragraph (f) of the O.S.H.A. hazards communication standard. Containers not meeting these labeling requirements shall be subject to refusal of delivery at the receiving location and will be returned at the expense of Seller. Seller shall adhere to all plant specific safety requirements including those referenced in Safety Specification S-001. All contractors, delivery drivers, sales and service personnel, subcontractors and general visitors shall comply with all plant specific safety exhibits listed in Safety Specification S-001 and/or plant visitor rules and other applicable safety and security requirements of the Buyer. Additional copies of Safety Specification S-001, visitor rules and security requirements are available from the plant Safety Departments.
15. ENTIRE AGREEMENT.  These Terms and Conditions, together with the other documents expressly referred to herein constituting an Order, constitute the entire agreement under which Seller is supplying the Goods for sale to Buyer.  No other terms, condition, or understanding, whether oral or written, shall be binding upon Seller, unless concurrently herewith or hereafter made in writing and signed by Seller’s authorized representative.
16. NON-ASSIGNMENT; SUCCESSORS AND ASSIGNS.  Seller may not assign or delegate its own rights or obligations under an Order without Buyer’s prior written consent. The rights, duties, agreements and obligations hereunder, or any portion thereof, shall be binding upon and inure to the benefit of Seller and Buyer and their respective successors and assigns.
17. WAIVER; SET OFF.  Buyer shall not, by any act, delay, omission or otherwise, be deemed to have waived any of the terms, provisions, covenants, conditions, rights or remedies under these Terms and Conditions and/or an Order, and no waiver whatever shall be valid as against Buyer unless in writing, signed by an authorized representative of Buyer, and then only to the extent set forth therein.  Buyer’s waiver of any term, provision, covenant, condition, right or remedy under these Terms and Conditions and/or an Order on any one occasion shall not be construed as a waiver of any term, provision, covenant, condition, right or remedy which Buyer would otherwise have on a future occasion.  Seller agrees that Buyer shall have the right to set off against amounts which may become payable by Buyer to Seller under this contract or otherwise, any present or future indebtedness of Seller to Buyer.
18. GOVERNING LAW; CONSENT TO JURISDICTION.  California law, without regard to conflict or choice of law principles, shall govern the construction and interpretation of these Terms and Conditions and any Orders.  Buyer and Seller agree that all actions or proceedings arising directly or indirectly from these Terms and Conditions and any Order shall be arbitrated or litigated before arbitrators or in courts having a situs within Los Angeles County, California, and hereby consent to the jurisdiction of any local, state or federal court in which such an action is commenced that is located in Los Angeles County, California and agree not to disturb such choice of forum.  It is the express intention of both Buyer and Seller to opt out of the United Nations Convention on Contracts for the International Sale of Goods (the “CISG”), as applicable.  Should any provision of this Section 18 be found by a court of competent jurisdiction to be void, invalid or unenforceable, Buyer’s and Seller’s express opt out from the CISG as governing law shall continue to be in effect.
19. ATTORNEYS’ FEES AND RELATED EXPENSES.  If an action (including arbitration) is brought to interpret or enforce any of the terms of these Terms and Conditions or an Order, or because of a party’s breach of any provision of the same, the losing party shall pay the prevailing party’s attorneys’ fees, costs and expenses, court costs and other costs of action incurred in connection with the prosecution or defense of such action, whether or not the action is prosecuted to a final judgment.  In addition to the foregoing award of attorneys’ fees, the prevailing party shall be entitled to its attorneys’ fees incurred in any post-judgment proceeding to enforce any judgment in connection with these Terms and Conditions or an Order.
20. INDEMNIFICATION.  Seller shall at all times indemnify, save and hold harmless Buyer and each of its shareholders, directors, officers, employees, attorneys, agents, affiliated persons or entities, and their respective successors and assigns (each  an “Indemnified Party”), from and against all legal actions, claims, judgments, loss, damages, costs, liabilities, charges or expenses, including, without limitation, reasonable attorney’s fees, which an Indemnified Party may incur, be liable for, suffer or sustain on account of any damage, wrong, loss, death, or injury of any kind or nature whatsoever caused by or resulting from:  (a) any act, breach, conduct, or omission of Seller related to or arising out of this transaction, including, without limitation, any alleged breach of warranty (whether express or implied); (b) any failure of the goods or work described herein to conform to any applicable specifications, descriptions or samples; (c) any defects in materials or workmanship; or (d) any claim or infringement of any patent in connection with the production of goods or performance of  any work hereunder or the use of such goods.  If an Order includes performance of services or labor on Buyer’s premises, Seller agrees to provide and maintain insurance coverage until such work is completed and accepted by Buyer and to furnish upon request certificates from its insurance carriers that it is covered by insurance adequate to provide workmen’s compensation, general public liability and automobile public liability coverage with limits and with companies acceptable to Buyer.
21. INTELLECTUAL PROPERTY INDEMNIFICATION. Seller is solely responsible for the selection of the methods or processes by which it carries out the work or supply of the Goods.  Seller warrants that there has been no violation or infringement of any copyright, trade name, trademark, patent or related property right, as a result of manufacturing, producing or selling the Goods. Seller further agrees to defend, indemnify and hold harmless each and every Indemnified Party from all claims, expenses and liabilities arising from any actual or alleged violation or infringement.
22. CONFIDENTIALITY.  Seller shall not use or disclose any data, designs, or other information belonging to, supplied by or on behalf of Buyer.  Upon completion by Seller of its obligations under an Order or upon Buyer’s request, such data, designs and other information or any copies thereof shall be returned to Buyer.  Where in accordance with Buyer’s written authorization, Buyer’s data, designs or other information is furnished to Seller’s suppliers for procurement of supplies by Seller for use in the performance of an Order, Seller shall insert the substance of this provision in its own purchase order.    An Order is confidential, and Seller shall not, without prior written consent of Buyer, disclose any information relative to or derived under an Order, except as may be required to ensure performance.  Unless otherwise authorized by Buyer, Seller shall not advertise or publish the fact that Seller has contracted to furnish Buyer the goods or services.
23. SEVERABILITY.  If any provision of these Terms and Conditions or an Order, as applied to any party or to any circumstance shall be found by a court of competent jurisdiction to be void, invalid or unenforceable, the same shall in no way affect any other provision of these Terms and Conditions, together with the other documents expressly referred to herein constituting an order, the application of any such provision in any other circumstance, or the validity or enforceability of these Terms and Conditions or an Order, and any provision that is found to be void, invalid or unenforceable shall be curtailed and limited only to the extent necessary to bring such provision within the requirements of the law.