Endicott Coil Company, Inc.

TERMS AND CONDITIONS OF SALE

This quotation or sale is subject to all terms and conditions on the face and reverse side hereof and supersedes Buyer’s proposed terms and conditions, if any. This quotation shall become a contract only (a) when signed and delivered by Buyer to Endicott Coil Company, Inc. “ECC” within thirty (30) days from date hereof and accepted by ECC at its Binghamton, NY office as evidenced by written or telegraphic confirmation by ECC to Buyer, or (b) any conduct of Buyer which recognizes the existence of a contract pertaining to the subject matter hereof.

This quotation or sales acknowledgement contains the entire agreement of the parties and all proposals, negotiations, representations or agreements made or entered into, prior to or contemporaneously with this quotation or sale are excluded whether oral or in writing. Prices set forth in this quotation or sales acknowledgment are based upon the terms and conditions set forth herein.

ANY TERMS PROPOSED IN BUYER’S ACCEPTANCE OF THIS QUOTATION OR SALE WHICH ADD TO, VARY FROM, OR CONFLICT WITH THE TERMS HEREOF ARE HEREBY OBJECTED TO AND REJECTED AND SHALL NOT CONSTITUTE ANY PART OF ANY CONTRACT RESULTING FROM THIS QUOTATION OR SALE

ANY SUCH PROPOSED TERMS SHALL HAVE NO FORCE OR EFFECT AND THE TERMS HEREIN SHALL CONSTITUTE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS AND CONDITIONS OF ANY CONTRACT RESULTING FROM THIS QUOTATION OR SALE AND MAY BE MODIFIED ONLY BY WRITTEN INSTRUMENT EXECUTED BY THE AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.

  1. Unless otherwise agreed to by ECC in an advance writing, all sales are made Ex-Works ECC’s location at 24 Charlotte St, Binghamton, NY 13905 U.S.A. (Incoterms 2010) or other shipping point designated by ECC. In other words, title shall pass to Buyer, and ECC’s liability shall cease, when ECC places the Products covered hereby at the disposal of Buyer (or Buyer’s selected carrier as Buyer’s agent) at ECC’s location at 24 Charlotte St, Binghamton, NY 13905 U.S.A, or other shipping point designated by ECC. All claims for loss or damages must be filed with the carrier. In the absence of timely and specific shipping instructions from Buyer, or the failure of Buyer’s selected carrier to accept Products on the acknowledged shipment date, ECC may select another carrier and service level similar to that of Buyer’s selected carrier (if any), so as to complete the order as originally acknowledged by ECC. In such cases, Buyer will promptly accept any and all ordered products as if placed at the disposal of Buyer or its selected carrier at ECC’s facility. Claims against ECC for shortages must be made within ten (10) days after arrival of shipment. ECC assumes no responsibility for delay, breakage or damage after having placed Products in good order at the disposal of Buyer or its carrier at ECC’s facility.

  2. Purchase prices are stated in United States dollars and payment shall be in United States currency. Invoice terms are net 30 days unless otherwise specified. ECC reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security, or payment in advance in the amount of the credit involved.

    Prices do not include sales, use, excise or any similar tax. Any tax or other governmental charge upon the production, sales, shipment or use of the product which ECC is required to pay or collect from Buyer shall be paid by Buyer to ECC unless Buyer furnishes ECC with a tax exemption certificate acceptable to the applicable taxing authority. Buyer shall be responsible for obtaining any necessary governmental clearances, including import and foreign exchange licenses, which may be required by any government other than the government of the United States.

    Buyer, for valuable consideration, the receipt and sufficiency of which Buyer hereby acknowledges, grants to ECC a security interest, under the provisions of the New York Commercial Code, in the Products covered hereby, together with all accessions thereto and all increases, replacements, proceeds and products thereof or therefrom. The security interest granted hereunder secures the payment, in lawful money of the U.S.A., to ECC of the purchase price of such Products. Buyer hereby appoints ECC as Buyer’s lawful attorney to sign Buyer’s name on any documents necessary or appropriate to perfect or continue the perfection of any security interest granted herein. ECC’s appointment as Buyer’s attorney in fact, and all of ECC’s rights and powers hereunder, are coupled with an interest and remains irrevocable until all of Buyer’s obligations have been fully repaid and performed.

    If Buyer modifies the requirements of an order due to engineering change, cancellation, or other action that causes obsolescence of materials, work in process, and/or finished product the cost shall be charged to the Buyer as Cancellation Charges.

  3. ECC shall not be liable for any failure to perform its obligations under any contract resulting from this quotation or sale when such failure arises directly or indirectly from or is contributed to by any acts of God, acts of Buyer, acts of civil or military authority, priorities, fire, strikes or other labor disputes, accidents, floods, epidemics, war, riot, delays in transportation, lack of or inability to obtain raw materials, components, labor, fuel or supplies, or other circumstances beyond ECC’s reasonable control whether similar or dissimilar to theECC reserves the right to modify the specifications of any component or Product offered by ECC, provided that, in ECC’s opinion, the modification will not materially affect the form, fit or performance of such component or Product.

  4. Shipping dates are given to the best of ECC’s knowledge based upon conditions existing at the time any contract resulting from this quotation or sale is entered into and specifications contained therein. ECC will, in good faith, endeavor to ship by the estimated shipping date but shall not be responsible for any delay or any damage arising from failure to ship on the estimated shipping date. If Buyer fails to furnish shipping instructions, ECC will select what is, in its opinion, the most satisfactory routing for the shipment. If Buyer is to pick up products and has not done so within seven (7) days after notification that they are ready for shipment, ECC may ship the products via commercial carrier (best way). Any prepayment by ECC for freight charges shall be for the account of Buyer and shall be paid by Buyer with and in addition to the purchase ECC reserves the right to over ship or under ship any order by 10% or up to $350 in total value.

  5. If Buyer has not made a claim to ECC within thirty (30) days after receipt of the products, or within ninety (90) days after shipment from ECC’s facility, whichever shall first occur, the products shall be considered accepted and conforming to contract requirements.

  6. ECC warrants to Buyer for a period of 12 months from the date of shipment that any product delivered under any contract resulting from this quotation or sale will at the time of shipment be free from defects in material and workmanship. ECC does not warrant any products, accessories, or components not manufactured by ECC, but to the extent possible agrees to provide Buyer with the benefits of the manufacturer’s warranty, if any. ECC shall not be liable for damage to or wear of products caused in whole or in part by neglect, abnormal conditions, misuse, improper application, corrosives, abrasives, foreign objects, or other causes external to the ECC product.

    If, within said warranty period, any such product is found, by ECC following its examination, to be defective in material or workmanship, ECC’s sole obligation to Buyer for Products failing to meet the aforesaid warranty shall be, at ECC’s option, to (a) replace the nonconforming Products, or (b) issue Buyer a credit for the purchase price of the nonconforming Products, where (i) ECC has timely received written notice in reasonable detail of any nonconformity;
    (ii) after ECC ’s written authorization to do so, Buyer has returned the nonconforming Products to ECC, freight prepaid, and (iii) ECC has determined to its satisfaction that the Products are nonconforming and that such nonconformity is not subject to the foregoing warranty exclusion (concerning misuse, neglect and other causes). Each return shipment must be in proper and appropriate packaging with the RMA number clearly stated on the outside of the container. Unauthorized returns, or returns that fail to comply with the foregoing requirements, will be subject to reshipment to Buyer at its sole cost and expense and all risk of loss for unauthorized returns shall be borne by the Buyer.

    ECC’s warranty does not relieve the Buyer of the reasonable responsibility to test for product nonconformity before modifying or installing ECC’s Products in a higher level assembly or system.

    THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY INCLUDING, BUT NOT BY WAY OF LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
  7. In the event Buyer claims that ECC has breached any of its obligations under any contract resulting from this quotation or sale, whether in warranty or otherwise, ECC may request and require return of the product and refund the Buyer’s purchase price upon ECC’s receipt of the returned product. If ECC so requests the return of the product, the product shall be redelivered to ECC in accordance with ECC’s return policies and instructions and at ECC’s expense. In the event ECC elects to require return of the product, ECC shall absolutely have no further obligation to Buyer under any contract resulting from this quotation or sale except to refund such purchase price upon redelivery of the product.

    THE REMEDIES PROVIDED FOR IN THIS AND THE PRECEDING PARAGRAPH SHALL CONSTITUTE THE SOLE RECOURSE OF BUYER AGAINST ECC FOR BREACH OF ANY OF ECC’S OBLIGATIONS UNDER ANY CONTRACT RESULTING FROM THIS QUOTATION OR SALE, WHETHER THE CLAIM IS MADE IN TORT, CONTRACT OR IN ADMIRALTY, INCLUDING CLAIMS BASED ON WARRANTY, NEGLIGENCE, OR OTHERWISE.

    NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT SHALL ECC BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, NOR SHALL ECC’S LIABILITY FOR ANY CLAIMS OR DAMAGE ARISING OUT OF OR CONNECTED WITH ANY CONTRACT RESULTING FROM THIS QUOTATION OR SALE, OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCT, EXCEED THE PURCHASE PRICE OF THE PRODUCT.
  8. In the event (1) Buyer modifies any product sold pursuant to any contract resulting from this quotation or sale without the express written consent of ECC; (2) Buyer fails to implement any changes in the product directed by ECC; or (3) any product to be furnished under any contract resulting from this quotation or sale is made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer, Buyer agrees to indemnify and hold harmless ECC from any and all claims, demands, actions or causes of action, costs or expenses incurred thereby whether in contract, tort or admiralty
  9. In the event any product to be furnished under any contract resulting from this quotation or sale is to be made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer, Buyer agrees to indemnify and hold ECC harmless from any and all damages, costs and expenses arising from a claim that such product furnished to Buyer by ECC, or the use thereof, infringes any Letters Patent, foreign or domestic, and Buyer agrees at its own expense to undertake the defense of any suit against ECC brought upon such claim or claims. In the event any product to be furnished under any contract resulting from this quotation or sale is not for a U.S. Government application and is not to be made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer, but rather is the design of ECC, ECC agrees to hold Buyer and its customers harmless against any damages awarded by a court of final jurisdiction in any suit for infringement of any United States Letters Patent by reason of the sale or use of such product as furnished by ECC under any contract resulting from this quotation or sale. In the event any claim is asserted or threatened, as to which Buyer may seek indemnification hereunder, ECC shall have the sole right to contest, compromise, litigate, or otherwise dispose of said claim, including the right to substitute non-infringing products, and Buyer agrees to cooperate with ECC fully with respect thereto. The foregoing undertaking of ECC shall not apply unless ECC shall have been informed in writing immediately by Buyer of any charge or suit alleging such infringement and shall have been given the opportunity to assume the defense thereof, and further, such undertaking shall not apply if (i) the claimed infringement is settled without the consent of ECC, or (ii) the infringement results from the use of a product delivered hereunder which is (a) modified by Buyer or others without authorization by ECC, or (b) used in combination with a product not delivered by ECC where such infringement would not have occurred from the lone use of the product delivered under any contract resulting from this quotation or sale.
  10. Any contract resulting from this quotation or sale shall be governed by the Uniform Commercial Code as adopted in the State of New York as effective and in force on the date hereof. Wherever a term defined by said Uniform Commercial Code is used herein, the definition contained in the Uniform Commercial Code shall govern, unless the quotation or sale states otherwise. No action for breach of sale, any contract resulting from this quotation or sale or any covenant or warranty arising therefrom, shall be brought more than one year after the cause of action has accrued.

    Any and all disputes arising hereunder or with respect hereto shall be subject to the exclusive jurisdiction and venue of the state and federal courts in the State of New York, U.S.A., and Buyer consents to the personal and exclusive jurisdiction and venue of these courts. The prevailing party in any legal action brought by one party against the other shall be entitled, in addition to any other rights and remedies it may have, to reimbursement for its expenses incurred thereby, including court costs and reasonable attorneys’ fees.
  11. Any contract resulting from this quotation or sale may not be modified or rescinded except in writing signed by ECC and Buyer. If all or part of any contract resulting from this quotation or sale is terminated by such modification or rescission, Buyer, in the absence of a contrary written agreement between ECC and Buyer, shall pay termination charges based upon costs determined by generally accepted accounting principles plus a reasonable profit, except that any products scheduled for completion within thirty (30) days of Buyer’s request for termination or rescheduling will be accepted and paid for in full by Buyer. Buyer shall reimburse ECC for all costs incurred by ECC in the settling and payment of claims and administrative expenses incurred by ECC pursuant to any such termination.