Terms and Conditions of Sale

Kris-Tech Wire Company, Inc. (“Kris-Tech”) offers to sell/provide (each, a “Sale”) goods and services (“Deliverables”) only on the terms and conditions below, which, together with the Specifications and applicable Purchase Order (as defined below), constitute the entire agreement for Deliverables between Kris-Tech and the customer making such Purchase Order (“Customer”).

1. Contract; Terms Exclusive: Kris-Tech offer to sell Deliverables shall be deemed accepted by Customer’s purchase of Deliverables, Customer’s submission of a request for proposal to purchase Deliverables, Customer’s submission of a purchase offer to purchase Deliverables, or any other act, communication or instrument from Customer in response to which Kris-Tech sells Deliverables to Customer (each a “Purchase Order”). Customer’s submission of a Purchase Order shall constitute an acceptance of these terms and conditions. If a Customer’s Purchase Order or other correspondence contains terms or conditions contrary to or in addition to these terms and conditions, acceptance of any Purchase Order by Kris-Tech shall not be construed as assent to such contrary terms and conditions or constitute a waiver by Kris-Tech of any of these terms and conditions, and Kris-Tech expressly objects to any and all different or additional terms and conditions of Sale or purchase which Customer may set forth on any Purchase Order, unless Kris-Tech specifically agrees to them in writing. No discussions or negotiations with Customer regarding Customer’s proposed terms and conditions shall be construed or deemed an acceptance of Customer’s terms and conditions, or a modification of Customer’s terms and conditions. THIS OFFER IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS. IF THIS FORM IS DEEMED AN ACCEPTANCE OF A PRIOR OFFER BY CUSTOMER, KRIS-TECH’S ACCEPTANCE IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THESE TERMS AND CONDITIONS.

2. Quotations: Unless otherwise stated, written quotations expire five (5) calendar days from the date issued. Verbal quotations are valid only on the day they are made by an authorized representative of Kris-Tech.

3. Acceptance: Kris-Tech shall not be deemed to have accepted a Purchase Order unless and until Kris-Tech, by an authorized representative, acknowledges its acceptance of such Purchase Order to Customer in writing.

4. Deliverables Being Purchased; Specifications: The specific nature, makeup, and design of the Deliverables, the quantity ordered, date(s) of delivery, price and other specifications applicable to the Deliverables being purchased shall be as agreed upon by Kris-Tech and Customer and are collectively referred to herein as “Specifications”. In the event Kris-Tech has in any manner assisted Customer in the preparation of Customer’s Specifications, Kris-Tech has done so solely as an accommodation to Customer, and 20050047.6 Customer shall nonetheless remain solely responsible for the accuracy and completeness of Customer’s Specifications, and Kris-Tech shall not be liable for any loss, liability, cost, damage or expense incurred by Customer arising out of or in connection with any claim or threatened claim that any Specification is incomplete or inaccurate and/or that the design of any product is defective in whole or in part due to any such assistance by Kris-Tech. Specifications shall not include any general terms and conditions of purchase, even if referred to as part of Customer’s Specifications. KrisTech shall have no obligation to ensure that any Deliverables purchased from Kris-Tech meet any unique specifications and/or other requirements unless set forth in Customer’s Purchase Order and expressly accepted by Kris-Tech.

5. Price and Payment: The purchase price for Deliverables shall be as set forth in the Purchase Order. Such purchase price may be changed by Kris-Tech, upon notice to Customer, if there is an increase in cost of materials necessary for Deliverables beyond the acceptable industry standard of tolerance of +/- two percent (2%) (unless a Purchase Order specifies a different standard). If no payment terms are stated in the Purchase Order, the purchase price shall be payable within thirty (30) days of the date of KrisTech’s invoice. If completion of manufacture or shipment is delayed by Customer, KrisTech reserves the right to regard date of completion as date of shipment and require payment based upon percentage of completion. Deliverables held as a result of Customer’s inability or refusal to accept delivery are at the risk and expense of Customer, including, without limitation, all of Kris-Tech’s handling, reshipping, restocking and storage charges. Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid in full by Customer by the due date thereof. Such interest shall be in addition to the purchase price. Kris-Tech may, without notice, change or withdraw extensions of credit at any time, in which event Kris-Tech may require cash payments and/or collateral security for account balances. Kris-Tech may also refuse to sell to Customer until overdue accounts are paid in full. If Customer fails to make any payment when due, in addition to all other sums payable hereunder, Customer shall pay Kris-Tech the reasonable costs and expenses incurred by Kris-Tech in connection with any actions or steps taken to enforce collection of such unpaid amounts and to protect Kris-Tech’s rights, whether by legal proceedings or otherwise, including, without limitation, reasonable lawyers’ fees, court costs and other expenses. KrisTech’s election not to commence legal proceedings to enforce its rights of collection shall not be deemed a waiver by Kris-Tech of its rights to commence such proceedings in the future. Kris-Tech reserves the right to retain custody of tooling and/or any other property of Customer in Kris-Tech’s control until Customer pays Kris-Tech all amounts owing by Customer to Kris-Tech.

6. Retained Security Interest: Customer hereby grants Kris-Tech a security interest in the Deliverables to secure the payment of same until the entire purchase price has been paid in full. Without restricting the generality of the foregoing, Customer also hereby grants to Kris-Tech a purchase money security interest in the Deliverables (including, but not limited to, a purchase money security interest in inventory) together with all replacements thereof, and all accessories and parts related thereto (collectively the “Inventory”). A security interest and a purchase money security interest are likewise 20050047.6 granted in the proceeds of sale of the Inventory. Customer hereby authorizes Kris-Tech to do whatever Kris-Tech may deem necessary to preserve, to perfect or continue its aforesaid security interests including, without limitation, filing financing and related statements under the Uniform Commercial Code and any other similar personal property security registration system in any other applicable jurisdiction.

7. Taxes: Unless otherwise agreed in writing, prices listed do not include any applicable present or future sales, use, privilege, excise, or other taxes, or any export or import taxes, customs duties, brokerage fees, freight, insurance, container packing or the like, all of which shall be for the account of and be paid by Customer in addition to the purchase price for the Deliverables. Applicable taxes, if any, shall be paid by Customer either directly to the taxing authority or, if collected by Kris-Tech, to Kris-Tech upon Customer’s receipt of Kris-Tech’s invoice for the amount of the tax. In the case of controversy as to whether a transaction is taxable, Customer agrees to remit the amount of the tax to Kris-Tech pending a specific ruling from the taxing authority which assesses or collects the tax.

8. Changes: Customer may not cancel, terminate or modify any Purchase Order without Kris-Tech’s prior written consent, which consent may be withheld in Kris-Tech’s sole discretion. Customer shall be responsible for any and all expenses and other losses and damages incurred by Kris-Tech a result of such cancellation, including Kris-Tech’s out of pocket costs, overhead, and anticipated profit.

9. Shipment; Delivery: Packaging and shipping costs and fees are Customer’s responsibility. Shipment and delivery dates are best estimates and are not guaranteed by Kris-Tech. Shipping prices are determined by the method specified by Customer, a particular Purchase Order’s (or portion of a Purchase Order’s) total weight, and delivery distance. Specified shipment/delivery dates are approximate. Unless otherwise agreed to in writing, Deliverables will be shipped F.O.B. Kris-Tech’s plant. Title and risk of loss shall pass to Customer upon delivery to common carrier. If freight must be prepaid, payment will be made for the account of Customer. In the event goods require extra or special packaging due to the nature of the Deliverables, the manner in which they will be transported or otherwise, Customer is responsible for the extra charges therefore. Kris-Tech shall not be liable for shipment delays, or any loss or damage to Deliverables while in transit, and all claims therefore shall be made immediately by Customer to the carrier. Kris-Tech reserves the right to deliver Deliverables in installments unless expressly agreed otherwise. Kris-Tech will invoice installment deliveries at the time of shipment unless otherwise agreed in writing. Delay in any installment delivery shall not relieve Customer of its obligation to accept all remaining installment deliveries.

10. Returns: Customer shall not be entitled to return any Deliverables without KrisTech’s prior written consent, unless such Deliverables fail to materially conform to the agreed-upon Specifications in a Purchase Order. All Deliverables returned to Kris-Tech must include a Return Material Authorization Form (RMA) issued by Kris-Tech prior to being returned. Deliverables returned for Customer’s convenience (if permitted by KrisTech), must be returned as originally shipping, including substantially similar packaging, in resaleable condition. Kris-Tech may charge Customer a reasonable restocking fee. 20050047.6 Customer is responsible for all shipping fees and expenses, and Customer bears the risk
of loss for all Deliverables returned until such Deliverables are actually received at KrisTech’s designated place of business. Once returned Deliverables are inspected and accepted by Kris-Tech, a credit shall be issued to Customer in the Customer’s original payment method. Returned Deliverables must be obtained by Kris-Tech’s Customer
Service Team prior to processing any refund. Kris-Tech reserves the right to: (a) return to Customer, at Customer’s cost and expense, all Deliverables that do not meet KrisTech’s quality standards, in Kris-Tech’s sole discretion; (b) withhold issuing a Credit to Customer until returned Deliverables have been inspected and the reason for the return has been confirmed; and (c) request Customer’s proof of purchase for returned Deliverables. If the Customer receives Deliverables that do not materially conform to the agreed-upon Specifications, Customer must contact Kris-Tech’s applicable sales representative within thirty (30) days of Customer’s receipt of the Deliverables, and Customer’s inquiry will be forwarded to Kris-Tech’s Customer Service Department. KrisTech will replace Deliverables that fail to conform to Specifications due to Kris-Tech’s error or omission, at Kris-Tech’s cost.

11. Setoff; Dedictions: In no event is any Customer authorized to deduct any amounts from the amounts owed to Kris-Tech unless specifically authorized in writing by Kris-Tech.

12. Quantity: Kris-Tech shall have no obligation to provide any Deliverables in excess of the amount set forth in the Specifications. Customer will notify Kris-Tech of any excess Deliverables delivered to Customer and, upon Kris-Tech’s request, will return any excess Deliverables to Kris-Tech.

13. Product Liability: Customer acknowledges that Kris-Tech has no control over, and is not responsible for, the manner in which the Deliverables shall be used or otherwise dealt with by Customer. Customer shall indemnify, hold Kris-Tech harmless from and against, and agrees to assume all responsibility for any and all actions, claims, or demands arising out of or in any way connected with, any and all sums which KrisTech and/or Customer becomes obligated to pay because of bodily injury or property damage caused by or resulting directly or indirectly from the use or operation of the Deliverables.

14. Recalls: If Customer is directed by Kris-Tech or any governmental authority to assist in any suspension of supply or recall of Deliverables for any reason, Customer must cooperate and comply with all such reasonable directions to ensure the most effective response to the suspension or recall. The cost and expense of such suspension or recall will be borne by (a) Kris-Tech to the extent the costs and expenses are the result of Kris-Tech’s acts or omissions; and (b) Customer to the extent the costs and expenses are the result of acts or omissions of Customer, its directors, officers, employees, or contractors.

15. Patents and Intellectual Property Rights: Customer represents and warrants to Kris-Tech that Customer’s Specifications do not infringe upon any United States or foreign patent right, copyright, trademark or other proprietary right of any third person whatsoever. Customer shall indemnify and hold harmless Kris-Tech from and against
20050047.6 each and every loss, liability, cost, damage or expense (including reasonable lawyer’s fees) (each, a “Loss”) of whatever kind or nature, which arise directly or indirectly out of or in connection with any allegation, claim or charge that Customer’s Specifications or Kris-Tech’s use thereof constitutes an infringement of any patent or patent right, copyright, trademark or other proprietary right or interest of any other party. Customer shall, upon Kris-Tech’s request, assume and pay for the defense of Kris-Tech against any such allegation, claim, or charge. Customer shall promptly notify Kris-Tech of any action or proceeding commenced against Customer with respect thereto. Kris-Tech shall have the right to be represented in such matters by additional counsel of Kris-Tech’s choice, acting at Kris-Tech’s expense. In the event of any such allegation of infringement, KrisTech may also cancel any Purchase Orders from Customer without obligation or liability to Kris-Tech. Kris-Tech shall retain exclusive ownership of all right, title, and interest in and to all of Kris-Tech’s own intellectual property, and Kris-Tech’s sale of the Deliverables to Customer does not grant or confer upon Customer or any other person any express or implied license in or to any of Kris-Tech’s intellectual property.

16. Permits: Customer represents and warrants to Kris-Tech that is has all necessary permits and licenses necessary to permit the lawful purchase and use of the Deliverables and to make any subsequent resale or use of the Deliverables.

17. Limited Warranty: Kris-Tech warrants to Customer that at the time of delivery, the Deliverables shall be free from defects in design (except to the extent Deliverables were designed by Customer), material, and manufacture, and will conform substantially to the Specifications as agreed to in a Purchase Order. Kris-Tech’s liability and Customer’s remedy under this limited warranty are limited to, at Kris-Tech’s sole option: (a) the refund of the Customer’s Purchase Price; or (b) repair or replacement of Deliverables which are returned to Kris-Tech and which are defective in Kris-Tech’s reasonable discretion, provided that Customer has provide written notice of such defects has been provided to Kris-Tech within one (1) year of delivery. In the case of any replacement, repair, or refund under this limited warranty, Kris-Tech shall pay for the costs of shipping and transportation to Kris-Tech and re-shipment to Customer, with Kris-Tech bearing the risk of loss until delivery to Customer. Kris-Tech shall not be responsible for any defect in quality or design attributable to Customer’s Specifications, such as Customer’s specifying the design, the materials to be used in, or the means or methods used by Kris-Tech in producing any Deliverables or for any materials supplied by Customer or purchased by Kris-Tech from Customer designated suppliers. Kris-Tech shall not be liable if Customer fails to include all appropriate dimensional data in the Specifications or if Customer includes incorrect data relating to materials or dimensions in the Specifications. Kris-Tech’s limited warranty immediately terminates in the event Customer alters the Deliverables in any fashion or uses Deliverables in a manner not in conformance with Kris-Tech’s spec sheet, including the application of any process that may affect the performance of Deliverables, such as, by way of example only, heat treatment, plating, or grinding. The foregoing warranty shall be limited to the one (1) year period commencing on the date of shipment; in each case provided that the Deliverables have been properly cared for by Customer, and provide that Customer promptly notifies Kris-Tech in writing of any warranty claim hereunder within said warranty period. Kris-Tech shall not be liable for any problems with any Deliverables 20050047.6 resulting from (i) any alterations to any Deliverables made by Customer or a third party, or (ii) any other act or omission of Customer or any third party. The foregoing warranties provided by Kris-Tech are the only warranties provided by Kris-Tech with respect to Deliverables, and these warranties may be modified or amended only by a written instrument signed by an authorized officer of Kris-Tech. EXCEPT FOR THESE EXPRESS WARRANTIES, KRIS-TECH MAKES NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PURPOSE OR DESIGN. Any sample or literature provided to Customer was to illustrate the general type of Deliverables and not an affirmation that the Deliverables will conform. No employee or representative of Kris-Tech has authority to bind KrisTech to any representation, affirmation or warranty not specifically included herein.

18. Limitation of Liability: Notwithstanding anything to the contrary contained herein, Kris-Tech’s aggregate liability in connection with the Sale or provision of any Deliverables, regardless of the form of action giving rise to such liability (whether in breach of warranty, contract, negligence, strict liability or any other theory in contract, tort or otherwise), including but not limited to Losses suffered or incurred pursuant to Section 17 above, shall not exceed the amount actually paid by Customer to Kris-Tech for such Deliverables. IN NO EVENT SHALL KRIS-TECH BE LIABLE FOR ANY EXEMPLARY, SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, EVEN IF KRIS-TECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. All remedies of Customer shall be limited exclusively and in lieu of any and all other remedies to those contained in these terms and conditions.

19. Advice: Kris-Tech assumes no obligation or liability for any advice provided by Kris-Tech respecting Customer’s Specifications, the use of Deliverables or for any results occurring from Customer’s application of such advice.

20. Confidential Information: The terms of any Purchase Orders from Customer to Kris-Tech shall be kept confidential. Technical information contained in plans, drawings, specifications, photographs and other documents disclosed or furnished by Kris-Tech in respect of any Deliverables constitutes confidential and proprietary property of KrisTech. In the absence of express prior written permission of Kris-Tech, Customer shall hold all such confidential and proprietary information in confidence and Customer shall not share such confidential information without anyone outside its organization, and Customer may not sell or dispose of any portion thereof. Customer shall not issue any publicity or advertising relating to Purchase Orders, Deliverables, or Customer’s relationship with Kris-Tech without Kris-Tech’s prior written consent. In the event of any breach of confidentiality by Customer, Kris-Tech shall be entitled to all remedies
available at law and in equity, including the recovery of any special, consequential, or indirect damages, lost profits, and/or the imposition of injunctive relief.

21. Default; Indemnification: If Customer shall fail to pay all or any part of the sums due or to become due to Kris-Tech, fail to comply with these terms and conditions, fail to keep or perform any of Customer’s obligations, become insolvent or become a party to any insolvency proceeding or receivership, or become a judgment debtor, at Kris- 20050047.6 Tech’s option, any sum due or to become due to Kris-Tech may become immediately due and payable in full. Customer shall indemnify and hold harmless Kris-Tech from and against each and every loss incurred or suffered by Kris-Tech which are or are claimed to be in any manner, directly or indirectly, in whole or in part, caused, contributed to or occasioned by reason of Customer’s, its employees’, agents’ or representatives’ default or breach of any representation, warranty, obligation or covenant of Customer contained in any Purchase Order, or Customer’s performance or failure to perform hereunder, or its negligence, whether active or passive, and, without limiting Customer’s liability, the foregoing shall include injury to or death of any person or persons and damage to or loss of property. Concurrently, or in the alternative, Kris-Tech may, at its option, in addition and without prejudice to its other lawful rights and remedies and without any liability to the Customer, (i) defer further shipments of Deliverables until each default has been corrected to Kris-Tech’s satisfaction, or (ii) elect not to make any further shipments of Deliverables, and/or (iii) exercise any other remedies available under applicable law. Waiver of any default shall not be a waiver of any other subsequent default. No course of conduct, nor any delay of Kris-Tech in exercising any rights, nor Kris-Tech’s acceptance of a payment from Customer with knowledge of an existing default or breach, shall waive any rights of Kris-Tech or be deemed a modification of any Purchase Order.

22. Right of Termination: Kris-Tech, at any time upon notice to Customer, may terminate or reduce its obligations to deliver Deliverables. In such event, Customer shall pay for all work completed hereunder on a percentage of completion basis. Customer shall have no claim for damages, compensation, loss of profit, allowance or otherwise by reason of, or directly or indirectly arising out of any action taken or notice given by KrisTech under or pursuant to the provisions hereof.

23. Bankruptcy: Customer warrants to Kris-Tech that it is not insolvent within the meaning of the United States Bankruptcy Laws and the laws of the states in which it conducts its business. In addition to any and all other rights and remedies which KrisTech may have pursuant to the law of contracts or at common law, Kris-Tech reserves the right to terminate its obligations, without liability, in respect of any undelivered Deliverables if Customer shall (i) become insolvent or bankrupt, (ii) make any general assignment for the benefit of its creditors, (iii) if any trustee or receiver is appointed of any substantial part of Customer’s assets or (iv) Customer shall be adjudicated as bankrupt.

24. Force Majeure: Kris-Tech shall not be liable for any failure or delay in delivery or otherwise performing its obligations hereunder with respect to any goods or services being purchased if such failure or delay is caused by a strike, lockout, labor dispute, accident, war, act of terrorism, act of God, fire, flood, or other casualty or cause beyond
Kris-Tech’s reasonable control.

25. Entire Agreement: These terms and conditions, together with the applicable Specifications and Purchase Order, constitutes the sole and entire agreement between Kris-Tech and Customer with respect to the Deliverables and the subject matter hereof, and all prior or contemporaneous understandings or agreements, oral or written, are 20050047.6 merged herein. No subsequent changes or modifications of these terms and conditions are binding upon Kris-Tech unless accepted by it in writing and signed by an authorized signing officer of Kris-Tech. Customer expressly waives all provisions contained in correspondence, forms, or other writings relating to the Sale of the Deliverables which negate, limit, extend, or conflict with the provisions hereof. In the event any term or provision hereof shall be deemed unenforceable, the remaining terms and conditions shall remain in effect to the fullest extent possible.

26. Controlling Law; Jurisdiction: These terms and conditions and the transaction to which these terms and conditions relate, shall be governed by and construed in accordance with the laws of the State of New York, without effect given to any choice of law provisions or rules. All disputes between Kris-Tech and Customer relating hereto shall be resolved exclusively in the courts of appropriate subject matter jurisdiction located in Oneida County, New York. Customer consents to the personal jurisdiction of such courts. For greater certainty, the application of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

27. Assignment: Customer may not assign or transfer any right or interest in or to these terms and conditions and/or the transaction to which these terms and conditions relate to any third party whatsoever without the prior written consent of Kris-Tech.

28. Notices: All notices required to be given hereunder shall be in writing and hand-delivered (including by commercial courier), with an appropriate receipt thereof obtained, or sent by United States certified mail, return receipt requested, to the addresses of the respective parties set forth on the face hereof, or to such other address as either party may designate to the other by written notice for such purpose from time to time.

29. Non-Waiver: Kris-Tech’s exercise or failure to exercise or enforce any right or remedy granted or provided by these terms and conditions or its acceptance of or payment for any Deliverables shall not be deemed as or construed to be a waiver of any right or remedy it may have for Customer’s then existing or subsequent default or breach of any representation, warranty, obligation, or covenant applicable to a Purchase Order.