TERMS AND CONDITIONS OF SALE

Buyer’s acceptance of the Goods will manifest Buyer’s assent rationing of fuel, strikes, lockouts, fires, bombings, acts of
to these terms and conditions. terrorism, accidents, floods, droughts and any other
contingency affecting the Seller, its suppliers, or sub-
The ASCO Power Technologies, L.P. (hereinafter called “Seller”) contractors; and the Seller shall have the right to cancel a
agrees to sell the goods covered herein on the following terms contract of sale or to extend the shipping date in the event that
and conditions of sale. Any additional or different terms that one or more of such contingencies prevent or delay shipments.
may be contained in any documents furnished by the Buyer In the event of delayed or extended shipping instructions, any
are hereby objected to and rejected. additional shipping charges shall be paid by the Buyer as a
part of the purchase price.
THIS CONTRACT CONSTITUTES THE ENTIRE AGREEMENT
BETWEEN BUYER AND SELLER WITH RESPECT TO THE 7. WEIGHTS and DIMENSIONS: Shipping weights and
GOODS FURNISHED HEREUNDER. NO REPRESENTATION, dimensions given in Seller’s catalog are as close to actual as
PROMISE OR CONDITION NOT SET FORTH HEREIN HAS BEEN practicable but are not guaranteed. No claims will be allowed
RELIED UPON BY BUYER OR SHALL BE BINDING ON EITHER because of any discrepancy between actual weight or
PARTY HERETO. dimensions shipped and listed data.

1. ORDERS: Orders are subject to acceptance at home office 8. SHIPPING and PACKING: All material is carefully packed for
of the Seller. shipment and Seller will not be responsible for loss, delay or
breakage after having received “in good order” receipts from
2. PRICE, DISCOUNTS, and MINIMUM BILLING: All prices, the transportation company. All claims for breakage, loss, delay
discounts, and minimum billing are in accordance with the and damage must be made to carriers. In the absence of
established price and discount schedule of the Seller, AND ARE directions, goods will be shipped by the method and via carrier
SUBJECT TO CHANGE WITHOUT NOTICE. Merchandise will Seller believes dependable.
be invoiced at prices prevailing at time of shipment. All prices Goods held in factory beyond delivery date for convenience of
are F.O.B. Shipping Point. Subject to establishment of Buyer will be invoiced on date of completion and terms of
satisfactory credit, terms are strictly net cash, thirty days from payment will apply as from invoice date. Such goods will be
date of invoice payable in United States funds. subject to charges for warehousing and other expenses
incident to such delay.
3. CREDIT CONDITIONS: If, at any time, the financial condition
of Buyer, or Buyer’s prior performance under the terms of this 9. CANCELLATION: Buyer may cancel orders only upon
or any other agreement with Seller shall cause Seller to reasonable advance written notice and upon payment to Seller
question Buyer’s ability to perform, Seller may demand of Seller’s cancellation charges which include, among other
adequate assurance of Buyer’s financial condition due to things, all costs and expenses incurred, and to cover
performance. Such demand for assurance may require full commitments made, by the Seller and a reasonable profit
payment of all amounts then due and owing by Buyer, or may thereon. Seller’s determination of such termination charges
require partial or full advance payment of the purchase price shall be conclusive.
of goods which have been scheduled for delivery, but shall
not be limited to the foregoing. If Buyer fails within 10 days of 10. WARRANTIES: The Seller warrants its products and
Seller’s demand to provide the Seller with such assurance, equipment to be free from defects in material and workmanship
Seller shall be entitled to cancel any order then outstanding, for a period of eighteen (18) months from date of shipment
shall be entitled to receive reimbursement for its cancellation from its factory.
charges, and may proceed to collect, without limitation, any
sums due and owing, its cancellation charges and all damages The Seller is not responsible for damage to its products through
resulting from Buyer’s default. In the event of bankruptcy or normal wear and tear, improper installation, maintenance, use,
insolvency of Buyer, or in the event of any proceeding brought repairs or adjustments, or attempts to operate it above its rated
against Buyer, voluntary or involuntary, under the bankruptcy capacity or voltage, intentionally or otherwise, or for
or any insolvency laws, Seller shall be entitled to cancel any unauthorized repairs. To the extent that Seller has relied upon
orders then outstanding at any time during the period allowed specifications, information, representation of operating
for filing claims against the estate and shall receive conditions or other data supplied by Buyer or its agents to
reimbursement for its reasonable and proper cancellation Seller in the selection or design of the goods and the
changes. preparation of Seller’s quotation, and in the event that actual
operating conditions or other conditions differ from those
4. DESIGNS: All designs and specifications shown in Seller’s represented by Buyer and relied upon by Seller, any warranties
catalog are subject to change without notice. or other provisions contained herein which are affected by such
conditions shall be null and void.
5. SHIPMENT and DELIVERY: Shipments are made F.O.B.
Seller’s shipping point. Freight charged on shipments includes NO OTHER REPRESENTATIONS, GUARANTEES OR
freight plus shipping and handling charges. Risk of loss or WARRANTIES, EXPRESS OR IMPLIED, ARE MADE BY THE
damage and responsibility shall pass from Seller to Buyer upon SELLER AND THE FOREGOING WARRANTY IS IN LIEU OF ALL
delivery. While Seller will use all reasonable commercial efforts OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR
to maintain the delivery date(s) acknowledged or quoted by IMPLIED, WHICH ARE HEREBY EXPRESSLY DISCLAIMED AND
Seller, all shipping dates are approximate and not guaranteed. WAIVED BY BUYER, INCLUDING ANY WARRANTY OF
Seller reserves the right to make partial shipments. Seller, at MERCHANTABILITY OR OF FITNESS FOR PARTICULAR
its option, shall not be bound to tender delivery of any goods PURPOSE, WHETHER OR NOT THE PURPOSE OR USE HAS
for which Buyer has not provided shipping instructions. BEEN DISCLOSED TO SELLER IN SPECIFICATIONS,
DRAWINGS OR OTHERWISE, AND WHETHER OR NOT
6. FORCE MAJEURE: Seller shall not be liable in any way for SELLER’S PRODUCTS ARE SPECIFICALLY DESIGNED AND/
any default or delay in shipping due to contingencies beyond OR MANUFACTURED BY SELLER FOR BUYER’S USE OR
its control, or the control of its suppliers or sub-contractors, PURPOSE.
which prevents or interferes with the Seller making delivery
on the date specified, including but not limited to war, or 11. NOTICE OF CLAIM BY BUYER: Seller shall have no liability
restraints affecting shipping, delivery of materials or credit as on any claim by Buyer with respect to any product furnished
a result of war or war restrictions, non-arrival, delay or failure hereunder alleged to be not in conformity with the terms and
to produce materials as a result of war or war restrictions, conditions hereof, or with any warranty expressed in these
 terms and conditions unless written notice specifying such are held to be infringing in such suit and their use is enjoined, Seller
claim shall have been sent by Buyer to Seller promptly after shall, at Seller’s expense and option, provide a commercially
the earliest date on which the basis for such claim could have acceptable alternative, including, but not limited to, procuring for
been discovered by Buyer with reasonable diligence, but in no Buyer the right to continue using the Goods, replacing them with
event later than one year from date of shipment. Seller shall non-infringing goods or modifying them so they become non-
not be liable to Buyer for any claim under this contract of which infringing, or grant Buyer a credit for the depreciated value of such
it does not receive written notice as provided in the preceding Goods and accept return of them. In the event of the foregoing,
sentence. Failure to so notify Seller shall constitute a waiver Seller may also, at its option, cancel this agreement as to future
of any and all claims hereunder. deliveries of such Goods, without liability. Buyer agrees that Seller
shall not be liable and that Buyer shall fully indemnify Seller if
12. LIMITATIONS UPON REMEDIES OF BUYER AND OTHERS: infringement is based upon the use of Goods in connection with
AS TO ANY CLAIM OF WHATEVER NATURE ASSERTED products or services not manufactured and/or provided by Seller or
AGAINST SELLER THAT IS RELATED TO THIS TRANSACTION in a manner for which the Goods were not designed by Seller or if
OR TO THE GOODS WHICH ARE THE SUBJECT THEREOF, THE the Goods were designed by Buyer or were modified by or for the
REMEDIES OF THE BUYER AND ALL OTHERS CLAIMING Buyer in a manner to cause them to become infringing.
UNDER, WITH, OR THROUGH THE BUYER ARE EXPRESSLY
LIMITED TO THE FOLLOWING: (A) SELLER WILL, AT ITS 14. NUCLEAR. GOODS AND SERVICES SOLD HEREUNDER ARE NOT
OPTION, EITHER (1) REPAIR OR REPLACE AN ALLEGEDLY FOR USE IN ANY NUCLEAR AND RELATED APPLICATIONS: Buyer
NON-CONFORMING PRODUCT AT THE DELIVERY POINT accepts goods and services with the foregoing understanding,
SPECIFIED HEREIN, OR (2) REPAY THE CONTRACT PRICE agrees to communicate the same in writing to any subsequent
HEREIN OF SUCH PRODUCT UPON ITS RETURN BY BUYER purchasers or users and to defend, indemnify and hold harmless
TO SAID DELIVERY POINT, PLUS ANY TRANSPORTATION Seller from any claims, losses, suits, judgments and damages,
CHARGES PAID BY BUYER IN ADDITION TO SUCH PRICE, (B) including incidental and consequential damages, arising from such
NOTWITHSTANDING ANY OTHER PROVISION OR TERM OF use, whether the cause of action be based in tort, contact or
THIS CONTRACT OR OF ANY EXISTING OR FUTURE otherwise, including allegations that the Seller’s liability is based
DOCUMENT OR INSTRUMENT BEING DEEMED PART OF THIS on negligence or strict liability.
CONTRACT, THE LIMIT OF SELLER’S LIABILITY WITH
RESPECT TO THIS TRANSACTION OR WITH RESPECT TO THE 15. TAXES: Any manufacturer’s excise tax, use tax, sales tax, or tax
GOODS WHICH ARE THE SUBJECT THEREOF, REGARDLESS or duty of any nature whatsoever arising out of or assessed against
OF THE FORM OF THE CLAIM OR CAUSE OF ACTION orders, shall be added to the price quoted or invoiced and shall be
(WHETHER BASED IN CONTRACT, INFRINGEMENT, paid by the Buyer; and in the event Seller is required to pay any
NEGLIGENCE, STRICT LIABILITY, OTHER TORT OR such taxes or duties, the Buyer shall reimburse Seller therefor, unless
OTHERWISE) SHALL, EXCEPT AS EXPRESSLY PROVIDED Buyer shall provide Seller at the time an order is submitted with
OTHERWISE IN PARAGRAPH (A), BE THE CONTRACT PRICE exemption certificates or other documents acceptable to taxing or
HEREIN OF THE SPECIFIC PRODUCT SUPPLIED BY THE custom authorities.
SELLER GIVING RISE TO THE CLAIM OR CAUSE OF ACTION.
BUYER AGREES THAT IN NO EVENT SHALL SELLER’S 16. ASSIGNMENT: Buyer shall not assign its rights or delegate its
LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO duties hereunder or any interest therein or any rights hereunder
INCLUDE INCIDENTAL, CONSEQUENTIAL OR PUNITIVE without the prior written consent of the Seller, and any such
DAMAGES. THE TERM “CONSEQUENTIAL DAMAGES” SHALL assignment, without such consent, shall be void.
INCLUDE, BUT NOT BE LIMITED TO, LOSS OF ANTICIPATED
PROFITS, LOSS OF USE, LOSS OF REVENUE, COST OF 17. GENERAL PROVISIONS: These terms and conditions supersede
CAPITAL, AND DAMAGE OR LOSS OF OTHER PROPERTY OR all other communications, negotiations, and prior oral or written
EQUIPMENT. (C) Seller shall not be liable for and Buyer statements regarding the subject matter of these terms and
assumes responsibility for all personal injury and property conditions. No changes, modification, rescission, discharge,
damage resulting from the handling, possession or use of the abandonment, or waiver of these terms and conditions shall be
goods; (D) The foregoing is intended as a complete allocation binding upon the Seller unless made in writing and signed on its
of the risks between the parties. Because the bargain struck behalf by a duly authorized representative of the Seller. No
and the price paid reflect such allocations this limitation upon conditions, usage of trade, course of dealing or performance,
remedies will not have failed of its essential purpose. It is understanding or agreement purporting to modify, vary, explain, or
expressly understood that any technical advice furnished by supplement these terms and conditions shall be binding unless
Seller with respect to the use of the Goods is given without hereafter made in writing and signed by the party to be bound, and
charge, and Seller assumes no obligation or liability for the no modification or additional terms shall be applicable to this
advice given, or results obtained, all such advice being given agreement by the Seller’s receipt, acknowledgment, or acceptance
and accepted at Buyer’s risk. of purchase orders, shipping instruction forms, or other
documentation containing terms at variance with or in addition to
13. PATENTS: Subject to the limitations of Section 12, Seller those set forth herein. No waiver by either party with respect to any
shall defend any suits brought against Buyer based on a claim breach or default or of any right or remedy and no course of dealing,
that shall be deemed to constitute a continuing waiver of any other breach
the Goods provided by Seller constitutes an infringement of a or default or of any other right or remedy, unless such waiver be
valid patent of the United States, and shall pay any damages expressed in writing and signed by the party to be bound. The
and reasonable costs awarded therein against Buyer, provided validity, performance and all other matters relating to the
that Buyer promptly notifies the Seller in writing and gives interpretation and effect of this agreement shall be governed by the
authority, information and assistance to Seller for defense of law of the State of New Jersey. Buyer and Seller agree that the proper
such suit and permits Seller to control completely the defense, venue for all actions arising in connection herewith shall be only in
settlement or compromise of any such allegation of New Jersey and the parties agree to submit to such jurisdiction. All
infringement. In the event that the Goods provided by Seller clerical errors are subject to correction.

GF100-70(A)
 TERMS AND CONDITIONS OF SALE
SERVICES

This Agreement consisting of these terms and conditions, the 5. VISITOR PASSES: Buyer shall provide Seller with such
typed or written portion of the attendant quotation and access to Buyer’s premises as Seller deems reasonably
acknowledgment, and price lists referenced herein, is binding necessary to provide Services. In the case of secure facilities
upon ASCO Services, Inc. hereinafter Seller, and the Customer, the buyer shall notify seller of all required security clearances
hereinafter Buyer, and is the entire Agreement. The terms and prior to scheduling work. These terms and conditions shall
conditions set forth herein shall apply to all Services as defined supersede provisions in Buyer’s visitor pass forms, access
below. Seller reserves the right to determine the qualifications of agreements (premises or equipment) or similar documents,
and the source of the representatives required to provide whether or not the same is executed by Seller’s
Services. These terms and conditions shall be in lieu of any representatives.
other terms and conditions contained in a purchase order,
request for quotation or other document and all other terms and 6. FACILITIES AND ACCESS TO EQUIPMENT: The Buyer
conditions are expressly rejected by Seller. Seller’s acceptance shall furnish to Seller, at no cost, suitable working space,
of an order or offer to purchase which is received from Buyer is storage space, adequate heat, telephone, light, ventilation,
expressly conditioned upon Buyer’s acceptance of the terms and regulated electric power and outlets for testing purposes.
conditions set forth herein. These facilities shall be within a reasonable distance from
where the Services are to be provided. Seller and its
1. DEFINITIONS: As used herein, the term Service shall representatives shall have full and free access to the equipment
include: in order to provide the necessary Services. Buyer shall provide
the means to shut off and secure the power to the equipment
a. Field Services. Equipment start up, repair, maintenance, to provide safe working conditions. Buyer shall inform Supplier,
calibration, cleaning and replacement of parts at Buyer’s in writing, at the time of order placement, of any known
location. hazardous substance or condition at the site, including, but
b. Contract Services. Maintenance and repair services not limited to, the presence of asbestos or asbestos containing
performed under the terms & conditions of a signed materials, and shall provide Supplier with any applicable
inspection & maintenance agreement Material Data Safety Sheets regarding same. Any losses,
c. Consulting Services. The process of assisting the Buyer costs, damages, claims and expenses incurred by Supplier
in designing, implementing and/or modifying parameters as a result of Buyer’s failure to so advise Supplier shall be
and/or configurations of Seller goods. borne by Buyer. Buyer shall appoint a representative familiar
d. Training Courses. On-site and off-site lectures, lab or with the site and the nature of the services to be performed by
classroom training. Seller is not responsible for Supplier to be accessible at all times that Supplier personnel
transportation, lodging, meals and other expenses are at the site. Supplier shall not be liable for any expenses
incurred by Buyer or its representative attending the incurred by Buyer in removing, replacing or refurbishing any
course. Seller reserves the right to cancel a course due Buyer equipment or any part of Buyer’s building structure that
to insufficient enrollment with refund of all prepaid fees. restricts Supplier access. Buyer personnel shall cooperate with
e. Service Center Repairs. Equipment repair, maintenance, and provide all necessary assistance to Supplier. Supplier shall
calibration, cleaning and replacement of parts at Seller’s not be liable or responsible for any work performed by Buyer
designated Service Center or factory.
f. Goods. All equipment, repair parts and supplies, software 7. TERMS OF PAYMENT: Payments are due thirty (30) days
and software media, manuals, documents, and other after the invoice date. A service charge of 1.5% shall be
items except personal services furnished in connection charged for each month and portion thereof that payments
with Field Services, Consulting Services, Training are received later than thirty (30) days after the invoice date.
Courses and Service Center Repairs. Buyer and Seller agree that the laws of the State of New Jersey
govern this Agreement. However, if it is judicially determined
that a different law governs this clause of this Agreement, the
2. SPECIFICATION OF CONTRACT SERVICES TO BE service charge shall be the maximum amount permitted under
PROVIDED: All contract services to be provided by Seller such law.
shall be described in a written specification signed by Seller
and the Buyer before Seller provides Services. At Seller’s 8. SHIPMENT AND DELIVERY: Shipments are made
discretion and upon Buyer’s request, Seller may agree to F.O.B. Seller’s shipping point. Freight charged on shipments
provide Services on an emergency basis. includes freight plus shipping and handling charges. Risk of
loss or damage and responsibility shall pass from Seller to
3. PRICES: Buyer upon delivery. While Seller will use all reasonable
commercial efforts to maintain the delivery date(s)
a. Seller and Buyer agree (1) the price of Services shall be acknowledged or quoted by Seller, all shipping dates are
Seller’s published price in effect at the date of order approximate and not guaranteed. Seller reserves the right to
acceptance; (2) all sales for Goods from Seller’s Service make partial shipments. Seller, at its option, shall not be bound
Center or factory are F.O.B. Seller’s Service Center or to tender delivery of any goods for which Buyer has not provided
factory. Shipping contracts made by Seller shall be to shipping instructions.
Buyer’s account. All claims for loss or damage after risk
of loss has passed to Buyer shall be filed by Buyer with 9. FORCE MAJEURE: Supplier shall not be liable or
the carrier. Buyer shall be liable to Seller for the full price responsible for cost, expense, or damage due to a delay in
of the goods, irrespective of loss or damage in transit. performance of services or other obligations when such delay
Seller shall not be required to provided freight cost is due to causes beyond Supplier’s reasonable control,
receipts at the time of invoice. including, but not limited to, acts of God; acts of Buyer; war;
b. Hourly prices are based on a standard eight hour work fire; flood; weather; sabotage; strikes or labor disputes; civil
day between 8:00 AM and 5:00 PM, Monday through disturbances or riots; governmental requests, restrictions,
Friday, local time. All hours in excess or outside of this allocations, laws, regulations, orders or actions; unavailability
eight (8) hour period and those hours worked on Saturday of or delays in transportation; default of suppliers; or unforeseen
including travel are charged 1.5 times the price list rate. circumstances. Performance may be suspended for an
Sunday and Seller holiday rates shall be 2.0 times the appropriate period of time or canceled by Supplier upon notice
price list rate. Buyer shall pay for all time Seller to Buyer in the event of any of the foregoing, but the balance
representatives are working, traveling or waiting, whether of the agreement shall otherwise remain unaffected as a result
on or off the job site, to provide Services. of the foregoing.
c. Buyer shall be liable to Seller for all travel and living
expenses incurred by Seller representatives in the course 10. TERMINATION OR SUSPENSION: Provided that Seller
of providing Services (including without limitation, hotel, receives adequate written notice from Buyer, Buyer may
meals, air, rail, bus, taxi, car rental and automobile terminate or suspend performance under this agreement at
mileage if a personal or company vehicle is used). Buyer’s convenience subject to Buyer’s payment to Seller of
all reasonable charges, which include, among other things, all
4. PERMITS, FEES AND TAXES: Buyer shall obtain and costs and reasonable expenses incurred, and to cover
pay for permits, licenses and other approvals required for Seller commitments made, by the Seller and a reasonable profit
to furnish Services to Buyer. Buyer shall also be responsible thereon. In the case of Training Courses to be presented to
for all sales, use, excise or similar taxes assessed from sale Buyer at Seller’s premises and not scheduled solely for Buyer’s
of Services.
 representatives, no cancellation charge shall be payable if UNDERSTOOD THAT ANY TECHNICAL ADVICE
Seller receives notice of cancellation at least two weeks before FURNISHED BY SELLER WITH RESPECT TO THE USE OF
the first day of training. Supplier may, at Supplier’s sole THE GOODS OR SERVICES IS GIVEN WITHOUT CHARGE,
discretion, terminate the Services Agreement without liability AND SELLER ASSUMES NO OBLIGATION OR LIABILITY
to Buyer if Buyer (i) fails to meet its obligations identified in FOR THE ADVICE GIVEN, OR RESULTS OBTAINED, ALL
the Services Agreement or these terms and conditions, (ii) SUCH ADVICE BEING GIVEN AND ACCEPTED AT BUYER’S
becomes insolvent or bankrupt, or (iii) withdraws such quantity, RISK.
models or types of equipment on which services are performed
and, Supplier, in its reasonable judgment, determines that it is 13. INSURANCE: Seller certifies that Worker’s
no longer economically reasonable for Supplier to continue to Compensation coverage on its personnel is adequate under
provide service to the remaining equipment based upon the local law.
then current pricing and contractual terms.
14. AMENDMENTS: The terms and conditions set forth
11. LIMITED WARRANTY: Seller warrants that all Services herein constitute the entire Agreement of the parties relating
provided and parts used in providing Services shall be free to the subject herein and no amendment shall be effective
from faulty workmanship and defects in material under normal unless it is in writing and signed by the authorized party of
use and service for a period of thirty (30) days from the date both Seller and Buyer. Buyer agrees that Seller’s service
Services were provided by Seller. Services proven by Seller personnel have no authority to add, delete or modify these
to be faulty in workmanship and/or defective in material shall terms and conditions.
be repaired, free of charge, provided Seller is notified within
the thirty (30) day period of this warranty. For Service Center 15. GENERAL PROVISIONS: (a) Neither party shall have
Repairs, the foregoing warranty provision shall apply provided the right to assign its rights or obligations under this Agreement
that goods or part(s) are returned to Seller’s designated Service except with the written consent of the other party, provided,
Center or factory, F.O.B. Seller’s Service Center or factory, however, that a successor in interest by merger, or by operation
transportation charges prepaid, within the thirty (30) day period of law, agreement, purchase, or otherwise of the entire
of this warranty. IN CONSIDERATION OF THE business of either party, shall acquire all interest of such party
HEREINSTATED PURCHASE PRICE OF THE SERVICE, hereunder. Any prohibited assignment shall be void. (b) There
SELLER GRANTS ONLY THE ABOVE STATED EXPRESS are no understandings, agreements or representations,
WARRANTY. NO OTHER WARRANTIES ARE GRANTED expressed or implied, not specified in this Agreement. (c) No
INCLUDING, BUT NOT LIMITED TO, EXPRESS AND IMPLIED action, regardless of form arising out of transactions under
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR this Agreement, may be brought by either party more than two
A PARTICULAR PURPOSE. (2) years after the cause of action has accrued. (d) No
representative of Seller has authority to modify these terms
12. LIMITATIONS UPON REMEDIES OF BUYER AND and conditions unless the modification is contained in a written
OTHERS: AS TO ANY CLAIM OF WHATEVER NATURE instrument signed by a duly authorized representative of Seller.
ASSERTED AGAINST SELLER THAT IS RELATED TO THIS (e) This Agreement is formed and shall be construed under
TRANSACTION OR TO THE GOODS OR SERVICES WHICH the laws of the State of New Jersey. (f) All stenographic,
ARE THE SUBJECT THEREOF, THE REMEDIES OF THE typographical and clerical errors in quotations and
BUYER AND ALL OTHERS CLAIMING UNDER, WITH, OR specifications may be corrected at any time by Seller (g) No
THROUGH THE BUYER ARE EXPRESSLY LIMITED TO THE waiver by either party with respect to any breach or default or
FOLLOWING: (A) SELLER WILL, AT ITS OPTION, EITHER of any right or remedy, and no course of dealing, shall be
(1) REPAIR OR REPLACE AN ALLEGEDLY NON- deemed to constitute a continuing waiver of any other breach
CONFORMING PRODUCT OR SERVICE AT THE DELIVERY or default or of any other right or remedy, unless such waiver
POINT SPECIFIED HEREIN, OR (2) REPAY THE CONTRACT be expressed in writing and signed by the party to be bound.
PRICE HEREIN OF SUCH PRODUCT UPON ITS RETURN
BY BUYER TO SAID DELIVERY POINT, PLUS ANY 16. NUCLEAR INDEMNIFICATION: SERVICES AND
TRANSPORTATION CHARGES PAID BY BUYER IN GOODS SOLD IN CONNECTION WITH THOSE SERVICES
ADDITION TO SAID PRICE, (B) NOTWITHSTANDING ANY HEREUNDER ARE NOT FOR USE IN ANY NUCLEAR AND
OTHER PROVISION OR TERM OF THIS CONTRACT OR RELATED APPLICATIONS. Buyer accepts goods and services
OF ANY EXISTING OR FUTURE DOCUMENT OR with the foregoing understanding, agrees to communicate the
INSTRUMENT BEING DEEMED PART OF THIS CONTRACT, same in writing to any subsequent purchaser or users and to
THE LIMIT OF SELLER’S LIABILITY WITH RESPECT TO defend, indemnify, hold harmless Supplier from any claims,
THIS TRANSACTION OR WITH RESPECT TO THE GOODS losses, suits, judgments and damages, including incidental
OR SERVICES WHICH ARE THE SUBJECT THEREOF, and consequential damages, arising from such use, whether
REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE the cause of action be based in tort, contract or otherwise,
OF ACTION (WHETHER BASED IN CONTRACT, including allegations that Supplier’s liability is based on
INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER negligence or strict liability.
TORT OR OTHERWISE) SHALL, EXCEPT AS EXPRESSLY
PROVIDED OTHERWISE IN PARAGRAPH (A), BE THE 17. GOVERNING LAW AND VENUE: The validity,
CONTRACT PRICE HEREIN OF THE SPECIFIC PRODUCT performance, and all other matters relating to the interpretation
OR SERVICE SUPPLIED BY THE SELLER GIVING RISE TO and effect of this agreement shall be governed by the law of
THE CLAIM OR CAUSE OF ACTION. BUYER AGREES THAT the state of New Jersey. BUYER AND SUPPLIER AGREE
IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER AND/ THAT THE PROPER VENUE FOR ALL ACTIONS ARISING
OR ITS CUSTOMERS EXTEND TO INCLUDE INCIDENTAL, IN CONNECTION HEREWITH SHALL BE THE DISTRICT
CONSEQUENTIAL OR PUNITIVE DAMAGES. THE TERM COURT OF MORRIS COUNTY, NEW JERSEY, AND THE
“CONSEQUENTIAL DAMAGES” SHALL INCLUDE, BUT NOT UNITED STATES DISTRICT COURT FOR NORTHERN NEW
BE LIMITED TO, LOSS OF ANTICIPATED PROFITS, LOSS JERSEY.
OF USE, LOSS OF REVENUE, COST OF CAPITAL AND
DAMAGE OR LOSS OF OTHER PROPERTY OR 18. SEVERABILITY: If any Section (or part thereof) of these
EQUIPMENT. (C) SELLER SHALL NOT BE LIABLE FOR AND terms and conditions or the Services Agreement is found to
BUYER ASSUMES RESPONSIBILITY FOR ALL PERSONAL be contrary to, prohibited by or invalid under any applicable
INJURY AND PROPERTY DAMAGE RESULTING FROM THE law, such court may modify such Section (or part thereof) so,
HANDLING, POSSESSION OR USE OF THE GOODS OR as modified, such Section (or part thereof) will be enforceable
SERVICES. (D) THE FOREGOING IS INTENDED AS A and will to the maximum extent possible comply with the
COMPLETE ALLOCATION OF THE RISKS BETWEEN THE apparent intent of the parties in drafting such Section (or part
PARTIES. BECAUSE THE BARGAIN STRUCK AND THE thereof). If no such modification is possible, such Section (or
PRICE PAID REFLECT SUCH ALLOCATIONS THIS part thereof) shall be deemed omitted, without invalidating the
LIMITATION UPON REMEDIES WILL NOT HAVE FAILED OF remaining provisions hereof. No such modification or omission
ITS ESSENTIAL PURPOSE. IT IS EXPRESSLY of a Section (or part thereof) shall in any way affect or impair
such Section (or any part thereof) in any other jurisdiction.

GF100-71(A)