GENERAL TERMS AND CONDITIONS OF SALE

1. PRICES: All prices are in U.S. currency unless otherwise stated.
2. QUANTITIES: Seller, at its option, may over or under ship the quantities of goods ordered hereunder by up to ten percent (10%) in which case the total purchase price shall be adjusted accordingly.
3. WARRANTY: Seller warrants that upon delivery, subject to standard variations if any, the goods shall (a) meet the agreed upon specifications or, if none, the manufacturer’s specifications, and (b) be delivered with good title, free from all liens and encumbrances. Buyer’s use of any goods with a reasonably discoverable defect will void any applicable warranties. EXCEPT AS EXPRESSLY SET FORTH HEREIN SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED AS A WARRANTY WITH RESPECT TO THE RESULTS OBTAINED OR OBTAINABLE FROM THE USE OF ANY PRODUCTS SUPPLIED HEREUNDER.  If Seller breaches the foregoing warranty, Seller’s sole obligation shall be to replace the defective goods or refund Buyer’s purchase price, at Seller’s sole option.  Such replacement or refund is subject to and conditioned upon: (a) Buyer’s account with Seller being current and in good standing; (b) written notice from Buyer within seven (7) days of delivery of the goods that do not meet specifications by registered and certified mail including a description of the specific defect or damage and the extent thereof; (c) provision of independent evidence satisfactory to Seller that the goods do not meet specifications; (d) the provision of a sample of the goods to Seller for testing; and (e) use of the goods for their intended purpose.
4. LIMITATION OF LIABILITY: BUYER’S EXCLUSIVE REMEDY AND SELLER’S TOTAL LIABILITY HEREUNDER WHETHER IN CONTRACT, TORT, OR STRICT LIABILITY FOR INDEMNITY, DEFENSE OR OTHERWISE SHALL IN NO EVENT EXCEED THE DAMAGES DIRECTLY AND PROXIMATELY CAUSED BY THE EVENT WITH RESPECT TO WHICH SUCH CLAIM IS MADE, SUBJECT IN ALL CASES TO AN AFFIRMATIVE OBLIGATION ON THE PART OF BUYER TO MITIGATE ITS DAMAGES.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY EXEMPLARY, PUNITIVE, INDIRECT, MULTIPLE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS OR BUSINESS.  Seller shall have no obligation to defend, indemnify or hold Buyer harmless from or against any claims by, or liabilities of, third parties except to the minimum extent required by applicable law.
5. PARTIAL SHIPMENTS: Unless otherwise specified, Seller may make partial shipments and each shipment shall be deemed a separate sale.
6. COST OF INSURANCE AND TRANSPORTATION: If Seller agrees to pay insurance or transportation or both, the costs thereof shall be limited to the rates in effect on the date hereof. If, for any reason, such costs increase prior to the shipment date, the increase shall be for Buyer’s account.
7. TAXES: In addition to the purchase price, Buyer shall pay Seller the amount of all sales, use, excise taxes and other taxes (except on or measured by net income) and duties that Seller may be required to pay with respect to the production, sale or transportation of any goods delivered hereunder, except where the law expressly provides otherwise.
8. CUSTOM DUTIES: If, after the date hereof, any custom duties increase or any new duties are levied on any of the goods which are the subject matter hereof, the specified price of such goods shall be increased to the extent of the increased cost caused thereby.
9. RISK OF LOSS: Delivery of goods to common carrier, licensed trucker, or vessel shall constitute delivery to Buyer, and all risk of loss or damage in transit shall be borne by Buyer.
10. DEVIATION: After the goods have been shipped, if their arrival at port of destination is delayed or prevented because, without fault of Seller, the vessel is delayed in arriving, berthing or unloading or unloads at a different port, Seller shall not be liable therefor. Time of performance shall be extended until the goods are unloaded, and the port of destination shall be the place at which the goods are unloaded by the vessel. Seller shall advise Buyer of any such delay or deviation within a reasonable time and cooperate with Buyer at Buyer’s expense, to ship the goods to a point of destination required by the Buyer.
11. CLAIMS:

(a) Shortage: Where goods are sold on a delivered basis, all claims for shortages must be made promptly after receipt by Buyer but in no event later than seven (7) days after delivery.  Shortage claims must be supported by exceptions taken on the delivery receipt (however denominated) furnished by Buyer to the delivering carrier.  Failure to take such exceptions shall bar any claim.

(b) Damaged Goods: All claims of damage of a kind which might have occurred between origin and delivery are barred unless supported by exceptions taken on the delivery receipt (however denominated) furnished by the Buyer to the delivering carrier.  Failure to take such exceptions shall bar any claim.

(c) Quality Claims: In case of a dispute as to whether the goods meet the specifications, a mutually acceptable expert shall be designated by Seller and Buyer to make an examination and such expert’s finding shall be conclusive and binding on Buyer and Seller. The expense shall be borne by Seller for each item found not conforming to specification and by Buyer for each item found to be conforming.  All claims arising hereinabove must be made in writing by registered and certified mail including with full particulars the defect or damage complained of.  Notwithstanding such claim, Buyer’s obligation to perform under the balance of this order shall not be affected thereby.  Buyer shall afford to Seller and/or its insurer full facilities for inspection and investigation of all such claims.  If a timely and bona fide claim is made, Seller shall give Buyer a reasonable allowance therefore, and Seller shall not be otherwise liable for such goods or its use or any consequential or special damages.  In no event may any such claim be made more than ten (10) days after the goods have arrived at their contract destination.

12. SELLER’S REMEDIES: If Buyer wrongfully rejects the goods or fails to make payments due on or before delivery or repudiates with respect to a part of, or the entire, order, then with respect to any goods directly affected and, if the breach is of the entire order, then also with respect to the entire undelivered balance, Seller may withhold delivery of such goods, stop delivery of such goods in possession of a carrier or other bailee, and recover damages for non-acceptance or repudiation. Seller shall be entitled to recover as damages the entire contract price or any unpaid amount thereof, together with any incidental damages and expenses, cancellation fees, foreign exchange loss, and reasonable attorney’s fees and other costs of enforcing its rights hereunder.
13. BUYER’S REMEDIES: If Seller fails to deliver the goods ordered, then Buyer may serve written notice thereof upon Seller. If Seller fails to perform within sixty (60) days after such notice, then Buyer, at its exclusive remedy, may cancel this order and shall be entitled to repayment of the purchase price or such part thereof as may have been paid by Buyer.
14. INTEREST: If payment is not timely, Seller, in addition to other legal rights, shall be entitled to the interest on any unpaid amount at the rate of one and one half percent (1.5%) per month from date of invoice, or any part thereof, on any unpaid balance.
15. FINANCIAL CONDITION: Buyer represents that Buyer is solvent, and that at each delivery, this representation shall be deemed renewed unless notice to the contrary is given in writing by Buyer to Seller within a reasonable time prior to the delivery of the goods.

(a) Seller shall have the right to withhold any shipments if Buyer fails to make timely payment, but Buyer shall be responsible for all resulting cost, expenses, or damages incurred by Seller if Buyer fails to make timely payment and such action shall not release Buyer from its obligation to accept and pay for such remaining portions of goods if and when shipped by Seller.

(b) If, at any time, there is a material change in the financial condition or structure of Buyer, Seller shall have the right to change credit terms, cancel this order or withhold any shipments, but such action with the exception of canceling this order, shall not release Buyer from its obligation to accept and pay for such remaining portions of goods if and when shipped by Seller and Buyer shall be responsible for any and all resulting costs, expenses, losses, or damages incurred by Seller if Buyer fails to make timely payment.  Seller shall attempt to notify Buyer of any such action it takes pursuant to the foregoing such as withholding shipment, changing credit terms or cancelling the contract, prior to the effective date of such action, however, Seller reserves the right to take such action without notification to Buyer in the event it is impracticable to give such notice prior to taking the action.

16. SECURITY INTEREST: Seller reserves to itself and Buyer grants to Seller, a security interest in the goods which are the subject matter of this contract to secure to Seller the full payment of the purchase price. If at any time Seller determines that Seller’s prospect of receiving payment is insecure, Seller may retain possession of, and have a security interest in, such goods until it receives payment therefore, or it may deliver such goods to Buyer subject to such security interest. Seller and Buyer agree to execute any financing statements or other documents reasonable required to perfect such security interest.
17. LAW; JURISDICTION: This order is to be governed and constructed according to the laws of the Commonwealth of Pennsylvania. Buyer agrees that Berks County is the exclusive venue for any disputes between Buyer and Seller, and consents to the jurisdiction of the Court of Common Pleas of Berks County, Pennsylvania. If there is litigation or other dispute between Buyer and Seller with respect to, or in connection with, these goods, then Buyer shall be liable to Seller for all expenses incurred by Seller in connection with such litigation or dispute, including but not limited to attorneys’ fees, professional fees, out of pocket expenses, or any other disbursements.
18. ASSIGNMENT: Buyer shall not assign this order without the prior written consent of Seller and any such assignment without consent shall be void. Buyer shall not be relieved of its obligations hereunder notwithstanding any such written consent by Seller.
19. ENTIRETY OF AGREEMENT: These General Terms and Conditions of Sale constitutes the entire agreement between the parties and the terms and conditions set forth herein constitute the sole terms and conditions. No other terms or conditions whether contained in Buyer’s purchase order, shipping release, or elsewhere, shall be binding upon Seller. All proposals, negotiations and representations, if any, made prior to the date hereof are void and of no effect.  No modification shall be effective unless agreed to in writing.
20. ASSENT: Buyer’s assent to these General Terms and Conditions of Sale shall be conclusively presumed from Buyer’s receipt hereof without prompt written objection thereto or from acceptance by Buyer of all or any part of the goods ordered.
21. FIRM CONTRACT: This order is non-cancelable, and Buyer agrees to the price and terms herein notwithstanding any fluctuation in foreign exchange or the value of material components.
22. FORCE MAJEURE: Seller shall not be liable for any prevention or delay in performance resulting in whole or in part, directly or indirectly, from fires, floods or other catastrophes, strikes, lockouts or labor disruptions; wars, riots, embargo, import or export quotas or mandatory allocations; actions by foreign, federal, state or local government; mill or factory conditions; shortages of transportation equipment, fuel, labor or materials, major changes in economic conditions; or any other circumstances or causes beyond the control of Seller or Seller’s supplier in the reasonable conduct of its business. In the event of such prevention or delay, the time for performance shall be extended for a period of ninety (90) days, and Buyer, if payment is to be made by Letter for Credit, shall extend such Letter of Credit of ninety (90) days. If performance is not made within such extended ninety (90) day period. Seller shall have the option at any time thereafter and upon written notice to Buyer to cancel this order without liability to either party, or to maintain the contract and made performance within a reasonable time after the termination of such prevention of delay.