AGB Leipold Inc.

LEIPOLD, INC.

TERMS AND CONDITIONS OF SALE

1. PARTIES

This sale of goods and products (“Goods”) described in the Contract Documents, as defined below, is between Leipold, Inc., a Delaware Corporation, with an office at 545 Marshall Phelps Road, Windsor, CT (“Seller”), and the party placing the order or accepting Seller’s quotation (“Buyer”) named in the Seller’s Acknowledgement/Acceptance of Order (the “AAO”).

2. ACCEPTANCE

The foregoing AAO, together with any previous quotation given by Seller, subject to the conditions of the face hereof and the following terms and conditions, all of which are referred to below as the “Contract Documents”, are the only terms which govern the sale of Goods by Seller to Buyer and constitute the entire agreement between the parties (the “Contract”).  Purchase orders are not binding until accepted by Seller at Windsor, Connecticut, U.S.A. in accordance with its AAO.  Commercial terms are subject to INCOTERMS 2010.

3. PRICES

Prices quoted are in United States currency and are exclusive of (a) all sales, value added, use, excise and similar taxes, including, without limitation, taxes on manufacture, sales and receipts, and (b) all costs of transportation, packaging, insurance and any other costs incurred in respect of shipping and delivery, including export and import duties.  All such taxes and costs will be added to Seller’s invoice and paid by Buyer.  Prices are based on current costs and therefore subject to change up to a maximum of 5% to account for foreign exchange fluctuations, changes in the cost of materials and other direct costs beyond Seller’s control, provided twenty (20) days’ notice is given to Buyer prior to the delivery date.

4. SHIPMENT & RISK

All orders are freight and insurance prepaid by Buyer, Free Carrier, Seller’s plant, Windsor, Connecticut, U.S.A.  Method and route of shipment are at Seller's discretion, unless Buyer supplies explicit instructions.  All shipments are insured at Buyer's expense and made at the Buyer's risk.  Identification of Goods to the Contract shall occur, and risk of loss or damage and title to the Goods shall pass, upon receipt of the shipment by carrier. Any delivery not in dispute shall be paid for regardless of other controversies relating to other delivered or undelivered Goods.

5. DELIVERIES

Seller reserves the right to deliver Goods in installments, insofar as they are deemed reasonable by Buyer and will not disrupt the production process.  Each installment shall be invoiced and paid for separately as though it constituted a separate contract. Shipments made thirty (30) days after a specified delivery date, if date is so specified, shall constitute good delivery, unless a firm delivery date is agreed upon in writing.  Any delay in delivery or defect in an installment shall not entitle the Buyer to cancel any other installment, or delay payment for a prior delivery.  The quantity of any installment of Goods as recorded by Seller on dispatch from Seller's facility is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.  Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within seven (7) business days of the date when Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of Goods shall be limited to replacing Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.

6. DELAYS

6.1  If shipment or delivery is delayed for any reason caused by Buyer or in its sphere of control, including, but not limited to, requests for changes with respect to Goods, then (i) risk of loss to Goods shall pass to Buyer; (ii) Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

6.2  Seller will not be liable for any delay in the performance of this Contract, or in the delivery or shipment of Goods, or for any damages suffered by Buyer by reason of such delay, when such delay is directly or indirectly caused by, or in any manner arises from, fires, floods, accidents, riots, acts of God, war, terror or insurrection, governmental interference or embargoes (whether by priorities, rationing or otherwise), strikes, labor difficulties, shortages of labor, fuel, power, materials or supplies, transportation delays or any other cause (whether or not similar to any of the foregoing) beyond Seller's control.  Seller shall have the additional right if any of the above mentioned contingencies occur, at Seller's option, to cancel in whole or in part, this Contract without any resulting liability and to allocate production and deliveries among customers.

7. TOOLING

The piece price quoted to Buyer above is exclusive of all engineering charges.  Unless otherwise agreed in writing, the Buyer shall pay the cost of all tooling, including all fitting up charges covering the cost of design, manufacture and development of operating tools, fixtures, dies, gauges and samples which are required to fill Buyer's particular order.  All tooling remains Seller's sole property, which it may use for any purpose, and Buyer shall obtain no interest in such tooling.  There will be no further charges to Buyer, however, for maintenance of the tooling until it must be replaced, at which time replacement will be at Buyer’s cost and expense.

8. SAMPLES

Seller will submit samples for Buyer's approval only if Buyer so requests.  Buyer shall pay the cost of all samples and test parts.  However, Buyer agrees that Seller shall commence production as soon as its machines have been set to Buyer's specifications, regardless of whether approval of samples has been received from Buyer.  Seller's sole responsibility for Goods manufactured prior to receipt of Buyer's approval of samples shall be to produce Goods conforming to the specifications required by this Contract.  If, after inspecting the samples, Buyer requests any changes in specifications, then such changes shall be made solely at Buyer's expense, and Buyer shall accept and pay for any Goods manufactured to the original contract specifications prior to such change.

9. TERMS OF PAYMENT & INTEREST

Terms of payment are net cash thirty (30) days, unless otherwise specified on the face of Seller’s quotation.  Payment shall not be deemed to have been received by Seller unless and until the respective amounts have been finally credited to Seller. All payments shall be made in U.S. dollars, without any right of setoff or deduction and all bank fees and charges shall be borne by Buyer.  For export shipments, Seller reserves the right prior to manufacture of any Goods to require payment pursuant to an irrevocable letter of credit issued by a financial institution acceptable to Seller or by documentary draft specified on the front of Seller's quotation or acceptance.  Seller may also elect to obtain credit risk insurance, in which event the premium will be added to the price.  Any payment terms specified on the front of Seller’s quotation supersede any inconsistent part of this section.  Seller reserves the right to impose a monthly service charge at the rate of one and one-half percent (1 1/2%) on invoices unpaid after thirty (30) days. Buyer’s failure to timely and fully to pay an invoice shall operate to make all other outstanding invoices of Seller to Buyer immediately due and payable, and at the discretion of Seller, shall be grounds for cancellation of any further performance by Seller. Any collection expenses incurred by Seller shall be borne by Buyer. Such collection expenses shall include Seller’s reasonable costs and expenses (including attorney’s fees and court costs) for pursuing, searching for, receiving, taking, keeping, storing, advertising and selling Goods as well as any deficiency resulting from a sale of Goods. The reasonable costs and expenses (including attorney’s fees and court costs) of Seller incurred in any defense against third party claims to Goods shall also become part of Buyer’s indebtedness to Seller. In addition to the foregoing provisions, and in addition to any other remedies it may have under the Contract or under applicable law, if Buyer fails to make payment when due, Seller may repossess Goods and put the same into storage, at Buyer’s expense, or dispose of Goods as Seller, in its sole discretion, deems practicable under the circumstances. Buyer hereby authorizes Seller or its agent to enter the premises of Buyer for such purposes and to do such acts and things relating thereto (e.g., bringing in manpower, rigging and lifting equipment, etc.).

10. RAW MATERIALS

Seller reserves the right to select sources of supply for raw materials.  Seller does not guarantee the compatibility or performance of raw materials with any specific customer’s product.  Any contract is subject to Seller's ability to obtain the necessary raw materials.

11. SPECIFICATIONS

All dimensions shall be limited to specified tolerances.  Unless otherwise specified by Buyer, Goods shall be manufactured to commercial tolerances applicable in the United States for the particular category of Goods.

12. THREADS

Buyer shall specify the standard to which any threads shall conform.  If no standard is specified, then the provisions of United States National Bureau of Standards, Handbook H28, shall apply.

13. LIMITED WARRANTY

13.1  The sole and exclusive warranty provided herein is that Goods sold conform to Buyer’s specifications (if provided) and are warranted to be free from defects in material or workmanship as established by Seller's standards of acceptable quality.  This express warranty is in lieu of all other warranties, express or implied.  Buyer's remedy under this warranty is to have its account credited with the invoice amount, or at Seller's sole option to have any Goods which contain manufacturing defects at variance with Seller's standards, or any Buyer specifications, replaced or repaired, provided the specific defect is reported to Seller within sixty (60) days after the date of initial shipment.  Every such claim under this warranty shall be deemed waived by Buyer and this warranty void:  (i) unless such claim is made in writing within said sixty (60) day period; (ii) if Goods are not operated,  maintained, stored, installed, integrated or commissioned in accordance with the oral or written instructions furnished by Seller or are repaired or maintained without Seller’s express authorization; (iii) if Goods are injured or damaged as a result of water, fire, misuse, accident, or neglect; (iv) if Goods are modified or altered; (v) if any required documentation and information relating to such Goods, including technical details, drawings, plans, or specifications provided by Buyer are inaccurate.  Defective Goods may be returned to Seller only after Seller's inspection and then only upon receipt of Seller’s authorization and definite instructions for said return received from Seller.  Any Goods returned without Seller's advance written instructions will not be received for replacement, repair or credit.  In no event may defect free Goods be returned.

13.2  THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES, AND SELLER DISCLAIMS ANY AND ALL OTHER EXPRESS WARRANTIES AND ALL IMPLIED WARRANTIES WITH RESPECT TO GOODS, INCLUDING ANY (I) WARRANTY OF MERCHANTABILITY; OR (II) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

14. LIMITATION OF LIABILITY 

SELLER’S LIABILITY IS LIMITED TO THE ORIGINAL SELLING PRICE OF GOODS TO BE SUPPLIED UNDER THE CONTRACT DOCUMENTS.  UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOSSES OR EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM THIS CONTRACT OR ITS PERFORMANCE OR IN CONNECTION WITH THE STORAGE, USE OF (OR LACK OF USE), OR INABILITY TO USE GOODS FOR ANY PURPOSE WHATSOEVER OR FOR INJURY TO PERSON OR DAMAGE TO OR LOSS OF PROPERTY OR VALUE CAUSED BY ANY OF THE GOODS.

15. INTELLECTUAL PROPERTY RIGHTS 

Buyer assumes all patent, copyright, and trademark liability, with respect to all Goods sold to Buyer.  Without limiting the meaning of the foregoing, Buyer shall indemnify and save Seller harmless from and against any loss, cost, claim, expense, or liability for infringement of any letters patent, trademarks or copyrights or otherwise, resulting from or arising in connection with Buyer's printed matter, design, shape, specifications or the sale or use of any item covered by this Contract, or Seller's compliance with Buyer's instructions.  Buyer shall promptly pay or secure any judgment or recovery which may be obtained against Seller with respect to any claim covered by the foregoing, and will pay Seller reasonable costs and expenses incurred in evaluating, defending and settling such claim in any judicial or administrative proceeding or in any negotiations prior thereto.  Buyer shall notify the Seller in writing of any claim, demand or suit against Buyer brought on the ground that use or resale by Buyer, or by anyone purchasing from Buyer, of Goods hereby ordered infringes any patent, trademark, copyright, tradename, license or other proprietary right of other parties.  The Seller shall, at its option, have the right to take control of and defend such claim, demand or suit at Buyer's expense, to approve counsel and to hire its own counsel at Buyer's expense to participate in such negotiation or litigation.

16. CONFIDENTIALITY 

Any designs, sketches, engineering drawings, proofs, etc. originated by Seller are submitted in confidence and will not be disclosed by Buyer to any third party.  Unless otherwise agreed in writing, such items and all copyrights or patents protecting them are owned by Seller.

17. CANCELLATION 

Orders accepted by Seller are not subject to cancellation by Buyer, except with Seller's written consent upon terms which compensate Seller for any loss or damage arising out of said cancellation.  If Seller, in its reasonable discretion, shall determine that the financial condition of Buyer at any time jeopardizes Buyer’s ability to perform any of its obligations towards Seller, such as, without limitation, (a) filing of voluntary or involuntary bankruptcy or for reorganization or arrangement under any state statute protecting creditor’s rights or (b) appointment of a receiver for Buyer, Seller may, at its option, cancel this Contract, require cash payment, require immediate payment of the entire balance, and/or require additional security satisfactory to it.

18MODIFICATION 

Modifications, additions, cancellations or suspensions of any order resulting from Seller's quotation, or any acceptance of a purchase order, shall not be effective or binding upon Seller unless evidenced in writing on the face of the order or in a separate writing, signed by an authorized manager of both the Buyer and the Seller, expressly stating the terms modified and the nature of the modification.

19. GOVERNING LAW

Any contract resulting from Seller's quotation, or acceptance of a purchase order, and all obligations of the parties thereto, shall be construed in accordance with, and all disputes governed by, the laws of the State of Connecticut, U.S.A. (without reference to its conflicts of laws rules), including provisions of the Uniform Commercial Code as adopted by the State of Connecticut.  The parties expressly reject the applicability to any such contract of the United Nations Convention on Contracts for the International Sale of Goods.  Seller and Buyer submit to the exclusive jurisdiction of the courts, both State and Federal, located in the State of Connecticut, U.S.A. in the event of any proceedings therein in connection herewith brought by either of them.  Any claim arising out of the Contract shall be subject to mediation as a condition precedent to the institution of legal or equitable proceedings by either party.

20. MEDIATION 

The parties shall endeavor to resolve their claims by mediation which, unless the parties mutually agree otherwise, shall be in accordance with the Commercial Mediation Rules of the American Arbitration Association currently in effect.  Request for mediation shall be filed in writing with the other party to the Contract and with the American Arbitration Association.  The request may be made concurrently with the filing of a civil action but, in such event, mediation shall proceed in advance of legal or equitable proceedings which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or by court order.  The parties shall share the mediator’s fee and any filing fees equally.  The mediation shall be held in Hartford County, State of Connecticut, unless another location is mutually agreed upon.  Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof.

21. LIMITATION OF ACTIONS

No action regardless of form arising out of any contract with the Buyer may be commenced more than one (1) year after the cause of action has accrued except an action for nonpayment.  Buyer shall reimburse Seller for any attorney's fees and other legal expenses incurred in enforcing or defending its rights under any contract arising from Seller’s quotation or an acceptance of Buyer’s purchase order.

22. EXPORT COMPLIANCE

Seller's quotation or acceptance is contingent upon any order received in response thereto qualifying for shipment of Goods under a General License G DEST (or other General License) under the Export Administration Regulations (hereinafter "EAR") adopted by the United States Department of Commerce, and that such Goods are not intended for, and will not be utilized for, shipment to Cuba, Iran or North Korea, or other embargoed country, as prohibited by 31 CFR Chapter 5 of regulations adopted by the United States Treasury Department and 15 CFR Chapter 7 of the EAR.

22.1  In the event that Buyer places an order in response to Seller's quotation and Seller knows or has reason to know that Goods ordered are to be shipped to Cuba, Iran or North Korea, or other embargoed country, then Seller has the right to cancel the order without penalty.  Nothing contained in Buyer's purchase order shall cancel, modify or supercede these foregoing provisions.  Any attempt to do so shall be null and void or, in the alternative, shall negate any contract between the parties so that Buyer's order, or Seller's acceptance, shall not result in a contract enforceable against Seller.

22.2  Any purchase order directed to Seller for any Goods quoted to Buyer must contain the statement:  "REPRESENTATIONS AND AGREEMENTS OF COMPLIANCE WITH U.S. EXPORT LAWS AND REGULATIONS ACCEPTED."  Failure to include such phrase may result in rejection of purchase order.

23. FEDERAL CONTRACTS OR SUBCONTRACTS

If this acceptance results in a contract with the United States Government or any agency thereof or which is a federal government subcontract, then such provisions as are expressly required by federal laws or regulations applicable hereto will be included as part of such contract and any certification as to any state of facts which applicable federal laws or regulations require Seller to give in such contract are hereby given.  Seller makes no other representations as to compliance with any other federal or state laws or regulations.

24. ASSIGNMENT

The Seller may at any time, after prior written notice to Buyer, assign, transfer, or subcontract all or any of its rights or obligations under the Contract.  The Buyer may not assign, transfer, or subcontract all or any of its rights or obligations under the Contract without the prior written consent of the Seller.

25. NOTICES

Any notice or other communication given to a party under or in connection with the Contract shall be in writing and addressed to that party at its address appearing in the AAO above or to such other address as that party may specify in writing.

26. SEVERANCE

If any court of competent jurisdiction finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.

27. WAIVER

A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.  No failure or delay by a party to exercise any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy.

28. THIRD PARTY RIGHTS

A person who is not a party to the Contract shall not have any rights under or in connection with it.