Terms and conditions of sale

1. Offer; Acceptance. These Terms and Conditions of Sale (these "Terms") by ebm-papst Automotive and Drives, Inc. or any of its affiliates or subsidiaries (collectively, "Seller") exclusively govern all sales of products or goods (the "Products") and services ("Services") by Seller to Purchaser regardless of whether Purchaser purchases such Products through the medium of purchase orders, releases or other similar document (whether written, electronic or by telephone order confirmed in writing by Seller) or otherwise (in each case, a "Purchase Order"). These Terms are expressly made conditional on Purchaser’s assent to all of the terms and conditions as they appear in these Terms, and acceptance of these Terms is limited to and must be made on the exact terms and conditions as they appear in these Terms. Purchase Orders, if accepted by Seller, are accepted subject to the terms and conditions set forth herein. SELLER OBJECTS TO AND REJECTS ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS PROPOSED BY PURCHASER WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS, ON PURCHASER’S WEBSITE OR OTHERWISE SUBMITTED BY PURCHASER, AND SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS SHALL BE DEEMED MATERIAL ALTERATIONS AND SHALL BE VOID AND OF NO EFFECT UNLESS IN WRITING AND APPROVED AND SIGNED BY SELLER SPECIFICALLY REFERRING TO AND AGREEING TO THE CHANGE. If these Terms are deemed an acceptance of a prior offer made by Purchaser, the acceptance is expressly made conditional on Purchaser’s assent to the additional and different terms as they appear in these Terms and such acceptance is limited to the express terms set forth in these Terms. These Terms are deemed accepted and assented and agreed to by Purchaser upon the earliest of Purchaser signing and returning one copy of these Terms, Purchaser’s issuance of a Purchase Order, Purchaser’s failure to object in writing to these Terms within ten (10) days after the receipt of an order acknowledgement form from Sller referencing these Terms, Purchaser otherwise notifying Seller of its acceptance or Purchaser’s acceptance of the Products or Services. Stenographic and clerical errors are subject to correction by Seller. Without limiting the foregoing, in case of a conflict between these Terms and any terms or conditions contained in any Purchase Order or otherwise submitted by Purchaser, these Terms prevail. Seller and Purchaser agree that Purchaser may use its Purchase Order to order Products, but none of the terms and conditions contained or referenced in such Purchase Order shall apply to the transaction between Purchaser and Seller other than the quantity specified in the Purchase Order for the Products identified therein. Seller may, and reserves the right to, reject any Purchase Order.

2. Quotations. Quotations are only valid in writing and for [thirty (30)] days from the date of the quotation unless otherwise set forth in Seller’s quote. All quotations by Seller are subject to change or withdrawal without prior notice to Purchaser unless otherwise specifically stated in the quotation. Subject to Seller’s right to change or withdraw the quotation, the ten (10) day period referenced in Section 1 above will not affect Purchaser’s right to accept Seller’s quotation during the [thirty (30)] day period, but acceptance of the quotation will include acceptance of these Terms on the exact terms and conditions as they appear herein and in the manner set forth in Section 1 above. Quotations are made subject to approval by Seller of Purchaser’s credit. Seller shall have no obligation to sell or deliver Products or Services covered by Seller’s quotation unless and until (i) Seller issues a written order acknowledgement, (ii) Seller acknowledges a Purchase Order by commencing work by Seller to supply the Products or (iii) Seller’ shipment of Products or commencement of Services.

3. No Change in Terms. Any changes to these Terms must be in writing clearly identifying the change and signed by an officer or by the Managing Director of the Seller. Under no circumstances shall any change or modification to these Terms by other representatives of the Seller be binding against Seller. Any such agreed upon change or modification will be subject to an adjustment in the purchase price and/or time for performance as determined by Seller. These Terms constitute firm commitments of Purchaser and are not subject to termination or cancellation or rescheduling without the written consent of Seller or as otherwise provided in these Terms.

4. Prices. Prices are in U.S. Dollars and are subject to change by Seller without notice. If a raw material, component, energy or service provider raises its prices or imposes a surcharge on Seller, Seller reserves the right to increase prices and/or surcharge Purchaser and Purchaser agrees to accept such price increase or surcharge. Time of payment is of the essence. There will be no pricedowns or other decrease in prices. Unless otherwise specified in these Terms, Seller reserves the right in its sole discretion to adjust prices upward in the event that the volumes purchased or to be purchased by Purchaser vary from those volumes anticipated by Seller to be purchased by Purchaser.

5. Level Loading. Prices are based upon certain weekly demand assumptions or lead times as agreed to by Seller. An extra charge may be made to the extent that Purchaser requires volume or lead times that conflict with those agreed to by Seller, provided, however, that Seller is not required to supply Products in weekly volumes or pursuant to lead times to which Seller has not agreed in writing or which exceed Seller’s straight-time manufacturing capacity.

6. Taxes. Purchaser shall pay to Seller, in addition to the purchase price, the amount of all fees, duties, licenses, tariffs, and all federal, state, foreign, municipal or government taxes, assessments, charges and costs. Failure by the Seller to collect any such fees, duties, licenses, tariffs or taxes shall not affect Purchaser’s obligations hereunder and Purchaser shall fully defend, indemnify and hold harmless Seller with respect to such obligations.

7. Terms of Payment. The inspection rights granted to Purchaser hereunder will not affect or alter the payment terms or the timing of Purchaser’s payment obligations. Unless otherwise expressly agreed to by Seller in writing, terms of payment are [_thirty(30)] days net from the earlier of the date of Seller’s invoice or the date the Products are tendered by Seller. Under no circumstances will Purchaser have a right of set-off by way of deduction, credit or otherwise. Seller shall have the right to offset its payables to Purchaser against Seller’s receivables related to goods or services purchased from Seller. Purchaser agrees to pay interest on overdue invoices at the rate of _____ % per month, but not higher than the highest rate permitted by law. If Purchaser fails to make any payment as required or if in Seller’s sole judgment, the financial position of the Purchaser is or becomes impaired or unsatisfactory to Seller, Seller may and reserves the right to change the terms of payment, require payment in advance, accounts receivable insurance or satisfactory security or guarantee that invoices will be promptly paid when due, charge additional interest or late fees, defer or discontinue further delivery and/or terminate any or all Purchaser Orders of Purchaser, without prejudice to any other lawful remedy. Without limiting the generality of the foregoing, Purchaser agrees to indemnify Seller for all costs and expenses, including reasonable attorney fees, court costs, and associated expenses incurred by Seller in connection with the foregoing.

8. Security Interest. In order to secure payment in full for the purchase price of the Products and other amounts due, Purchaser hereby grants to Seller a first lien on, and security interest in, Purchaser’s right, title and interest in and to the Products and all products, replacements and proceeds thereof together with all insurance proceeds with respect thereto (the "Collateral"). Purchaser and Seller each acknowledges and agrees that Purchaser’s obligation has been incurred as all or part of the price of the Collateral and that Seller’s security interest shall constitute a “purchase-money” security interest. It is intended that this provision shall constitute a security agreement under the Uniform Commercial Code (the "Code") and Seller shall be entitled to all rights and protections afforded to a secured party under the Code. Purchaser hereby grants to Seller a power of attorney with full power of substitution to execute on behalf of Purchaser such UCC-1 Financing Statements or filings as may be necessary or appropriate to perfect Seller’s security interest in the Products and agrees to do any other acts necessary or appropriate to perfect and maintain such security interest. Seller agrees that its security interest hereunder shall be automatically released and discharged in full, without further action on the part of either party, upon the payment in full of the purchase price of the Products and related charges or amounts due. Any security interest retained by Seller under these Terms shall not render the Seller otherwise responsible for the Collateral. The Collateral shall be the responsibility of Purchaser and Purchaser shall indemnify and hold Seller harmless from any and all claims, costs, expenses (including, but not limited to, attorneys fees), damages and losses relating to the Collateral.

9. Reinstatement of Security Interest. Notwithstanding any prior discharge of the security interest granted herein, the effectiveness of the security interest granted herein shall automatically continue or be reinstated, as the case may be, in the event that any payment received by Seller in respect of the purchase price or any other amounts owed are returned, disgorged or rescinded as a preference, impermissible setoff, fraudulent conveyance, diversion of trust funds, or otherwise under any applicable state or federal law, in which case the security interest granted herein shall be enforceable as if the returned, disgorged or rescinded payment had not been received or given.

10. Delivery. Delivery and shipment dates are estimated dates only and are based upon prompt receipt from Purchaser of all necessary information. Estimates as to the time of delivery in quotations are based on conditions prevailing at the date of such quotations. Unless otherwise agreed in writing by Seller, all Products are sold [EXW (Ex Works)] point of origin. Unless otherwise agreed in writing by Seller, Purchaser is responsible for all costs of packaging, handling, freight and transportation and an extra charge may be made for special conditions. Purchaser is responsible to return in a timely manner all packaging in good, clean and usable condition deemed returnable by Seller and shall be responsible and shall indemnify Seller for any and all costs, expenses (including, but not limited to, attorneys fees), damages and losses incurred by Seller relating to Purchaser’s failure to timely return such packaging to Seller in good, clean and usable condition. Such returnable packaging shall remain Seller’s property. All shipments to be made hereunder shall at all times be subject to the approval of Seller’s credit department. Seller reserves the right to ship items in a single or multiple shipments.

11. Title and Risk of Loss. Products shall become the property of Purchaser upon tender by Seller at the point of origin. Purchaser shall assume all risk and liability for loss, damage, or destruction, as well as the results of any use or misuse by third parties who may acquire or use the Products after tender by Seller at the point of origin.

12. Right of Reclamation. Seller may, at any time it believes in its sole discretion that Purchaser is insolvent, and cease any further delivery of Products to Purchaser, and demand and immediately receive the return of any Products Seller provided or is obligated to provide Purchaser whether or not such Products were sold, commingled, or capable of being identified, traced, or matched to any particular invoice, Purchase Order, or similar document. Purchaser shall return the Products within one (1) day of receipt of such demand. Seller and Purchaser expressly acknowledge and agree that this contractual right of reclamation is independent of and in addition to any statutory or common-law right of reclamation and is not subject to or conditioned upon any additional statutory or common law requirement, including, without limitation, that (i) Purchaser was actually insolvent when it received the Products, (ii) Seller provided Purchaser the subject Products in the ordinary course of business or on ordinary business terms, and (iii) Purchaser had the Products in its possession or subject to its control at the time it received Seller’s demand for the return of the Products. In the event of a bankruptcy proceeding, Purchaser recognizes, acknowledges, and agrees that Seller shall be entitled, without challenge, defense, offset, or counterclaim, to the immediate payment in cash of the amounts subject to such reclamation demand or the immediate return of such Products, at the option of Seller.

13. Design or Engineering Changes. At the request of Seller, Purchaser shall reasonably cooperate with Seller to implement any changes in Seller’s processes and methods of manufacturing, provided that such changes do not alter the Product specifications.

14. Cancellation. Notwithstanding anything to the contrary in these Terms, Seller reserves the right to cancel any Purchase Orders or terminate any Agreement relating to purchase of Seller’s Products or Services (i) on not less than thirty (30) days written notice, and (ii) immediately upon written notice of termination to Purchaser in the event Purchaser (a) becomes insolvent; (b) makes an assignment for the benefit of creditors; (c) files a voluntary bankruptcy petition; (d) acquiesces to any involuntary bankruptcy petition; (e) is adjudicated bankrupt; or (f) ceases to do business. Once Seller has either accepted a Purchase Order or has begun taking actions with respect to filling such Purchase Order, Purchaser cannot cancel, terminate or modify the Purchase Order in whole or in part except with Seller’s consent in writing.

15. Inspection. Seller grants Purchaser the right to inspect Products for a period of fifteen (15) days immediately following delivery. Purchaser must notify Seller of any Products that do not conform to these Terms within the fifteen (15) day period, and afford Seller a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide Seller with notice of nonconformity within such time period, Purchaser shall be deemed to have accepted the Products. Purchaser will have no right to return any Product without Seller’s prior written authorization. Purchaser will be responsible for all costs and expenses associated with any returns of Products and will bear the risk of loss or damage of such Products, unless Seller otherwise agrees in writing or determines that the Products do not conform to these Terms. Seller, in its sole discretion, may reject any return of Product not approved by Seller in accordance with this Section.

16. Damage or Shortage. Purchaser shall notify Seller in writing within fifteen (15) days following delivery of the Products of any damage or shortage and afford Seller a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be the responsibility of Purchaser and claims for such loss shall be made solely against the carrier.

17. Complete Order. Any variation in quantities shipped over or under the quantities ordered (not to exceed 10%) shall constitute compliance with Purchaser’s order and Seller may call such Purchase Order complete.

18. Warranty. Subject to the limitations set forth in these Terms, Seller warrants to Purchaser that the Products tendered by Seller to Purchaser will be free from defects in material and workmanship under normal use and service for a period of [twelve (12)] months from the date of tender. For clarification, a cosmetic defect that either (i) does not alter the form, fit or function of the Product or (ii) does not alter the compliance of the Product with the applicable specifications, if any, contained in these Terms shall at no time constitute a defect in material or workmanship. Seller has the right to inspect and/or test Products claimed to be defective at Purchaser’s place of business, or at Seller’s option, have them reshipped to Seller for inspection and/or testing. Transportation charges covering returned Products shall be borne by Seller only when said Products are determined by Seller to be defective and covered by the warranty herein. In no event may Products be returned to Seller without Seller’s prior written consent. Purchaser is responsible for secure packaging of returned Products such that the Products reach Seller without damage. Purchaser acknowledges and agrees that no salesman, officer, agent or other representative of Seller is authorized to make any representation or extend any warranty contrary or in addition to that set forth in this Section 18, and that any attempt to do so shall not be binding upon Seller. In no event or circumstance shall anyone other than the Purchaser be considered to have any right, title or interest to assert any rights under this warranty. Seller SHALL NOT be obligated in any event under this warranty (i) for alleged defects which examination discloses are due to tampering, misuse, neglect or improper storage, handling or maintenance of the Products or due to system processing, design or installation, (ii) for alleged defects which examination indicates are not solely the result of a defect in material or workmanship, (iii) in any case where Products are disassembled or modified in any manner, (iv) for alleged defects relating to compliance with any specifications or instructions provided by or on behalf of Purchaser, (v) for alleged defects which should have been discovered by Purchaser in Purchaser’s inspection and are not reported within fifteen (15) days of delivery of the Product, (vi) resulting from damages occurring after tender of the Product or (v) in any case where the Products are subject to unauthorized repair or similar conduct by Purchaser. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO ANY PRODUCTS OR PARTS WHICH ARE NOT MANUFACTURED BY SELLER. With respect to Services performed hereunder, Seller warrants that such Services shall be performed in a workmanlike and professional manner in accordance with industry standards.

19. WARRANTY DISCLAIMER. OTHER THAN AS EXPRESSLY STATED HEREIN, THE PRODUCTS AND SERVICES ARE BEING SOLD "AS IS", "WHERE IS" AND WITH ALL FAULTS AND SELLER MAKES NO OTHER REPRESENTATIONS, WARRANTIES, GUARANTEES OR CONDITIONS WHATSOEVER, WHETHER EXPRESS OR IMPLIED OR BY OPERATION OF LAW, WITH RESPECT TO THE PRODUCTS, SERVICES OR THE TRANSACTIONS CONTEMPLATED HEREBY OR ANY MATTER RELATED HERETO, NOR IS SELLER MAKING ANY WARRANTY THAT THE PRODUCTS, SERVICES OR ANY ACTIONS TAKEN WITH RESPECT THERETO WILL NOT INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY NOR IS SELLER MAKING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS, SERVICES OR OTHERWISE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (i) ANY SAMPLES PROVIDED BY SELLER ARE NOT AND DO NOT GIVE RISE TO ANY REPRESENTATIONS OR WARRANTIES AND (ii) SELLER FURTHER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO ANY MATERIALS REGULATED BY ENVIRONMENTAL LAWS OR REGULATIONS OR COMPLIANCE THEREWITH. SELLER’S WARRANTIES SHALL NOT BE ENLARGED BY, NOR SHALL ANY OBLIGATION OR LIABILITY OF SELLER ARISE DUE TO, SELLER PROVIDING TECHNICAL ADVICE, FACILITIES, OR SERVICE IN CONNECTION WITH ANY PRODUCTS. ANY SUCH ADVICE, FACILITIES OR SERVICE WHICH MAY BE PROVIDED SHALL BE PROVIDED "AS IS," "WHERE IS" AND WITH ALL FAULTS AND SELLER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND (WHETHER EXPRESS OR IMPLIED OR BY OPERATION OF LAW) WITH RESPECT TO ANY SUCH ADVICE, FACILITIES OR SERVICE. SELLER ASSUMES NO OBLIGATION OR LIABILITY FOR ANY SUCH ADVICE, FACILITIES OR SERVICE WHICH SHALL BE AT PURCHASER’S SOLE RISK. THIS SECTION SURVIVES ANY TERMINATION, CANCELLATION OR EXPIRATION OF THESE TERMS OR ANY ORDER.

20. EXCLUSIVE REMEDY. PURCHASER’S SOLE AND EXCLUSIVE REMEDY, AND SELLER’S SOLE AND EXCLUSIVE OBLIGATION OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, FOR NEGLIGENCE), WITH RESPECT TO THE PRODUCTS OR SERVICES IS EXPRESSLY LIMITED TO REPAIR OR REPLACEMENT OF PRODUCTS WITHIN SELLER’S STRAIGHT TIME MANUFACTURING CAPACITY, AT SELLER’S OPTION, PROVIDED SELLER IS NOTIFIED IN WRITING OF ANY CLAIMS OF DEFECTS IN MATERIAL OR WORKMANSHIP WITHIN ONE (1) YEAR FROM THE DATE OF TENDER. ALL ACTIONS FOR A CLAIMED BREACH OF THIS WARRANTY MUST BE BROUGHT WITHIN ONE (1) YEAR OF THE DATE OF TENDER. THIS SECTION SURVIVES ANY TERMINATION, CANCELLATION OR EXPIRATION OF THESE TERMS OR ANY ORDER.

21. NO CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR, AND PURCHASER WAIVES ALL CLAIMS AGAINST SELLER FOR, ANY CLAIM OF ANY KIND (WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH, WARRANTY OR OTHER CAUSE OF ACTION OR IN CONTRACT, TORT OR OTHERWISE) OR OTHERWISE FOR INDIRECT, INCIDENTAL, PUNITIVE, CONSEQUENTIAL, EXEMPLARY OR SPECIAL DAMAGES, WHETHER KNOWN OR UNKNOWN, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR REVENUES, LOSS OF PROPERTY OR PRODUCTION, PRODUCTION INTERRUPTION OR SHUTDOWN, INJURY OR DAMAGE TO PERSONS OR PROPERTY AND/OR COMMERCIAL LOSS EVEN IF SELLER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. WITHOUT LIMITING THE GENERALITY OF THE LIMITATIONS AND DISCLAIMERS SET FORTH HEREIN, IN NO EVENT WILL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE RECEIVED FOR THE SPECIFIC PRODUCT OR SERVICE AS TO WHICH THE CLAIM IS MADE. THIS SECTION SURVIVES ANY TERMINATION, CANCELLATION OR EXPIRATION OF THESE TERMS OR ANY ORDER.

22. Equipment, Material and Tooling. Unless otherwise agreed in writing by Seller, all material, equipment, facilities, and tooling (which term includes but is not limited to tools, jigs, dies, fixtures, gages, molds, patterns and replacements thereof) used in connection with the manufacture of the Products shall remain the property of Seller. Any material, tooling or equipment furnished to Seller by Purchaser shall be and remain the personal property of Purchaser and are held at Purchaser’s risk. Seller shall not be responsible or liable for damage thereto or loss or destruction thereof and shall have a lien thereon to secure all amounts whatsoever due from Purchaser to Seller, which lien may be enforced by sale or court action or as otherwise permitted under applicable law. Seller may take any actions it deems desirable or necessary with respect to such lien and the assertion or perfection thereof and Purchaser shall cooperate with Seller with respect to the foregoing.

23. Intellectual Property. All intellectual and industrial property and all rights therein relating to the Products or any Services provided by Seller or disclosed or otherwise provided to Purchaser by Seller or otherwise contained in any item or documentation relating thereto, including, but not limited to, all drawings, designs, know-how, specifications, inventions, devices, gating, developments, processes, trade secrets, copyrights, trademarks, servicemarks, patents and applications therefor, engineering details and other data and information, and all rights therein (collectively, "Intellectual Property") will remain the property of Seller and will be kept confidential by Purchaser pursuant to these Terms. Purchaser shall have no claim to, nor ownership interest in, any Intellectual Property and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use the Seller’s Products purchased from Seller. The sale of Products or Services by Seller to Purchaser does not include any design, development or related services associated with the Intellectual Property of the Seller.

24. Confidential Information. Purchaser shall hold in strict confidence and not disclose or duplicate any information disclosed, demonstrated or provided by Seller or any of its affiliates or otherwise designated as being proprietary to Seller without the prior written consent of Seller except for any information which becomes generally available to the public through no act or omission of Purchaser and otherwise without breach of any agreement, limitation or restriction.

25. Indemnification. In addition to any other indemnification and other obligations of Purchaser hereunder, Purchaser shall defend, indemnify and hold harmless Seller and its affiliates and each of their respective shareholders, members, owners, officers, directors, managers, agents, employees and representatives (the “Seller Indemnitees”) from and against any and all claims, sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest, costs and other expenses (including, but not limited to, investigation expenses and attorneys’ fees) arising or alleged to arise out of (i) Purchaser’s negligence or Purchaser’s use, ownership, maintenance, transfer, transportation, processing, application, sale or disposal of the Products, (ii) Purchaser’s plans or specifications or otherwise arising or alleged to arise out of the Products ordered by Purchaser or any Services provided by Seller to Purchaser; (iii) any infringement or alleged infringement of the industrial or intellectual property rights of others arising or alleged to arise from Purchaser’s plans, specifications (including, but not limited to, Purchaser's trademarks, servicemarks and brand names) or the production, sale or use of the Products; (iv) Purchaser’s violation or alleged violation of any federal, state, foreign, county or local laws or regulation, including without limitation, laws and regulations governing product safety, labeling, packaging and labor practices; (v) the manufacture by Seller of the Products in accordance with Purchaser’s specifications including, but not limited to, the use of materials regulated by environmental and other laws, rules and regulations; or (vi) Purchaser's breach, misrepresentation or nonperformance of these Terms. Without limiting the foregoing obligations of Purchaser, if a Product is to be manufactured to Purchaser’s specifications, Purchaser assumes sole responsibility for the specifications (including, but not limited to the materials to be used in accordance with such specifications). This section survives any termination, cancellation or expiration of these Terms or any Purchase Order.

26. Force Majeure. Seller shall not be liable or deemed in default for any late deliveries hereunder or for any other delays or failure to perform where the late delivery, delay or failure to perform has been occasioned by acts of God, fire, embargo, labor or industry disruptions or disturbances, weather, shortage of materials, strikes, civil disorders, acts of terrorism, war, epidemics, computer malfunctions, vendor allocations, accidents, governmental, regulatory or legal action or orders, delays caused by Purchaser (including, but not limited to, Purchaser’s failure to promptly comply with the terms of payment), failure to secure materials from usual sources of supply, acts or omissions on the part of carriers, force majeure or any other circumstances beyond Seller’s control not named above.

27. Successors and Assigns; No Assignment. These Terms bind and inure to the benefit of Purchaser and Seller and their respective successors and permitted assigns. Purchaser shall not assign any interest in, nor delegate any obligation under, these Terms without the prior written consent of Seller.

28. Entire Agreement; Modifications; No Implied Waiver. These Terms are intended by the parties as a final expression of their agreement and are intended also as a complete and exclusive statement in and of such agreement. These Terms may not be altered, modified or waived except by written agreement of Seller. Waiver by Seller of any breach of any of the terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure of Seller to exercise any right arising from any default of Purchaser hereunder shall not be deemed to be a waiver of such right.

29. Limitation of Actions. Notwithstanding any statute of limitations to the contrary, any cause of action for any alleged breach of these Terms by Seller shall be barred unless commenced by Purchaser within one (1) year from the accrual of such cause or action; provided, however, that the foregoing shall not be construed to lengthen the one (1) year time limitation contained in sections 18 and 20.

30. Litigation Costs. If any litigation or arbitration is commenced between Seller and Purchaser concerning any provision of these Terms, the party prevailing in the litigation or arbitration is entitled, in addition to such other relief that is granted, to all reasonable attorney’s fees.

31. Severability. In case any of the terms or conditions contained herein shall be held invalid, illegal, and/or unenforceable, in whole or in part, neither the validity of the remaining part of such terms, nor the validity of any other term hereof shall be affected thereby.

32. Governing Law. The validity, construction and performance of these Terms shall be governed by and interpreted in accordance with the laws of the State of Michigan, without regard to Michigan’s choice of law provisions. ICC Incoterms 2010 apply; however, the U.N. Convention on Contracts for the International Sales of Goods does not apply to these Terms, and any term contained herein shall be construed in accordance with the Uniform Commercial Code as enacted in the State of Michigan.

33. Submission to Jurisdiction. Purchaser irrevocably submits and agrees to the jurisdiction of the state and federal courts of the State of Michigan, County of Oakland in any action, suit or proceeding related to, or in connection with, any dispute between the parties. To the extent permitted by applicable law, Purchaser waives and agrees not to assert as a defense in any such action, suit or proceeding any claim (i) that Purchaser is not personally subject to the jurisdiction of such courts; (ii) that the venue of the action, suit or proceeding is improper; (iii) that the action, suit or proceeding is brought in an inconvenient forum; or (iv) that the subject matter of the dispute may not be enforced in or by such courts.

34. Cumulative Remedies of Seller. All rights granted to Seller hereunder shall be cumulative and in addition to, and not in lieu of, any other rights of Seller including, but not limited to, Seller’s rights arising by operation of law.

35. Survival. The provisions of these Terms that by their nature are reasonably intended to survive termination, cancellation or expiration including, but not limited to, sections 6-10, 12, 15-16, 18–25 and 27-38 survive any termination, cancellation or expiration of these Terms or any order.

36. Credits and Benefits. Credits or benefits resulting from any order by Purchaser or otherwise with respect to the Products, including, but not limited to, trade credits, export credits, duty and import drawback rights, and the refund of duties, taxes, or fees, belong to Seller. Purchaser will provide all information and certificates necessary to permit Seller to receive these benefits or credits.

37. Customs Matters. The Products are subject to U.S. export control laws. Purchaser is obligated by law to comply with export control laws, including but not limited to the Export Administration Regulations and the regulations administered by the Office of Foreign Assets Control. If Purchaser exports the Products from the U.S., Purchaser assumes responsibility for complying with any and all applicable laws and regulations and for obtaining export and import authorizations and licenses. Purchaser agrees to hold Seller harmless for any costs, fees, fines, or other liability incurred by Seller resulting from Purchaser's failure to comply with the U.S. export control and other applicable laws.

38. Headings. The headings contained in these Terms are for convenience of reference only and shall not affect the meaning or interpretation of these Terms.

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