Sales Invoice Terms & Conditions

ACS INDUSTRIES, INCORPORATED and SUBSIDIARIES CONTRACT TERMS AND CONDITIONS OF SALE

1. GOVERNING PROVISIONS: Goods and services sold by ACS are expressly subject to the terms and conditions set forth below. Any conflicting or additional terms and conditions in Buyer’s purchase order or similar communication are objected to, and shall not be binding on ACS unless expressly agreed to in writing.

2. QUOTATIONS: ACS’s written offer of sale or quotation, except for price, shall be deemed open for acceptance by buyer for a period of 30 days unless extended in writing on ACS paperwork. Cancellations, modifications and waivers to any quotation or any of the underlying rights or obligations shall not be effective without ACS’s written consent. ACS’s acceptance of Buyer’s offer of purchase shall be contingent on approval of Buyer’s credit.

3. FREIGHT: Standard freight terms are FOB the ACS facility. Upon request freight charges may be prepaid by ACS and added to invoice using the carrier of ACS’s choice. Buyer may request a carrier of his choice and ACS will make reasonable efforts to honor Buyer’s request. In cases where Buyer’s carrier of choice is used, freight terms are FOB the ACS facility, COLLECT. Actual freight costs to Buyer are those charged to ACS the date of shipment plus handling charges. ACS will not be responsible for deviations to freight quotes or estimated freight costs provided to Buyer at the time of order quotation or order acceptance.

4. PRICES: Published and quoted prices are subject to change without notice. ACS reserves the right to adjust prices to those prevailing at time of shipment. If applicable, sales, excise, and other taxes payable or accruing by reason of sales to Buyer will be added to the invoice. It is Buyer’s responsibility to provide ACS documentation in writing that Buyer is exempt from any sales tax or any other applicable tax.

5. PAYMENT: Unless other terms are agreed in writing by ACS, full payment is due 30 days after date of shipment. Interest will be charged on past-due accounts at a monthly rate of 1.5% or the highest rate permitted by applicable law, whichever is lower, on any unpaid balance. Any costs incurred by ACS, including applicable court costs and attorney fees, in collecting past due amounts owed by Buyer, shall be reimbursed by Buyer to ACS.

6. DELIVERY TERMS: RISK OF LOSS: Delivery dates are based on estimated manufacturing periods and shall not be deemed to represent fixed or guaranteed delivery dates.

7. FORCE MAJEURE: ACS shall not be liable for any claim, damage, loss, expense or liability as a result of any delay or failure to ship or provide services due in whole or in part to any cause beyond ACS’s reasonable control including, but not limited to, restrictions imposed by any governmental legislation, rules or regulation, any act or omission of Buyer, strikes, slowdowns or other labor unrest, embargoes, riots, storms, fire, accidents, war, act of terrorism, delay in transportation, or inability to obtain necessary labor, materials, or manufacturing facilities. Any such failure or delay by ACS shall not be considered a breach of contract.

8. ACCEPTANCE: CLAIMS: Buyer shall inspect products delivered hereunder. Products shall not be subject to acceptance on the basis of any destructive or non-destructive testing unless expressly stated in ACS’s quotation or offer of sale, Any claim must be made by Buyer in writing within 20 days of receipt, and all ascertainable defects and nonconformities shall be stated with particularity or be deemed waived. Under no circumstances shall products be returned to ACS without written permission. Under no circumstance shall a buyer modify an ACS product in any manner for any reason without the express written consent of ACS. A claim that products are nonconforming shall not entitle Buyer to deduct any sum from any invoice unless such claim has been allowed by ACS in writing. Invoices shall be paid in full in accordance with the terms of sale. Upon verification by ACS of a defect or nonconformance, ACS may repair, replace or, in ACS’s sole discretion, credit or pay to Buyer a set amount to repair the defect.

9. CHANGES: ALTERATIONS: ACS may make such changes in the design and construction of products as shall, in its judgment, constitute an improvement. ACS may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or because materials are unavailable from suppliers..

10. PATTERNS AND TOOLING: ACS shall have no responsibility for errors or variations in tooling, patterns, specifications, drawings, technical information or designs furnished to it by Buyer. Buyer agrees to pay for changes in tooling or patterns made necessary by Buyer’s change in specifications, drawings or designs and agrees to assume all risks of damage thereto resulting from such changes when such damage occurs without fault of ACS. Subject to Buyer’s approval, pattern and tooling changes, repairs or replacements which become necessary on account of ordinary wear shall be made at Buyer’s expense. ACS shall not be liable for damages to tooling and pattern equipment except those due to ACS’s gross negligence. 10. INDEMNIFICATION : Buyer shall indemnify, save harmless and defend ACS against any claim, demand, loss, expense or liability, including attorneys’ fees, in any way related to the manufacture and sale of products manufactured in accordance with tooling, patterns, specifications, drawings, technical information or designs supplied by Buyer, including, but not limited to, (i) actual or alleged infringement of any patents, trademarks or other intellectual property and (ii) product liability claims of any kind from any third party, unless solely the result of ACS’s negligence

11. INDEMNIFICATION : Buyer shall indemnify, save harmless and defend ACS against any claim, demand, loss, expense or liability, including attorneys’ fees, in any way related to the manufacture and sale of products manufactured in accordance with tooling, patterns, specifications, drawings or designs supplied by Buyer, including, but not limited to, (i) actual or alleged infringement of any patents, trademarks or other intellectual property and (ii) product liability claims of any kind from any third party, unless solely the result of ACS’s negligence.

12. CORRECT SPECIFICATIONS: ACS will manufacture and/or provide products and services in accordance with Buyer’s written instructions provided in the form of a written Purchase Order. Buyer’s Purchase Order will specify all critical specifications to permit ACS to correctly provide goods and services to meet Buyer’s requirements. Should Buyer fail to provide complete or accurate information to ACS concerning machine make, model and serial number, required attachment options, intended application, or any other critical requirement, expenses incurred to correct resulting deficiencies will be the responsibility of Buyer.

13. LIMITATION ON WARRANTIES: Except as to express warranties stated in the applicable warranty policy in effect at date of sale, ACS warrants its products to be as specified in its catalog and on the face hereof for a period of one year from date of delivery. Any suggestions by ACS or its agents regarding use, application or suitability of the products shall not be construed as a warranty unless confirmed to be such in writing by ACS. For products not manufactured by the ACS, it extends to Buyer the warranties of the manufacturer only. ACS’s MONETARY LIABILITY SHALL NOT EXCEED THE VALUE OF THE GOOD AND/OR SERVICE PROVIDED TO BUYER. THIS WARRANTY IS EXCLUSIVE AND ACS MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES, EXPRESS OR IMPLIED. ACS MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO ANY SERVICES, INCLUDING WITHOUT LIMITATION CONCERNING THE RESULTS TO BE OBTAINED FROM THE SERVICES OR THE RESULTS OF ANY RECOMMENDATION ACS MAY MAKE, INCLUDING ANY WARRANTIES CONCERNING THE USE, APPLICATION, PERFORMANCE, MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF ANY OF RECOMMENDATIONS OR DELIVERABLES.  IF ANY MODIFICATION, ALTERATION OR REMOVAL OF ANY PART OR PRODUCT NOT AUTHORIZED IN WRITING BY ACS RESULTS IN AN INJURY TO A PERSON OR DAMAGE TO PROPERTY, THEN NO WARRANTY HEREIN SHALL APPLY AND BUYER SHALL INDEMNIFY ACS AGAINST ANY CLAIM, DEMAND, EXPENSE, OR LIABILITY, INCLUDING ATTORNEY FEES, IN ANY WAY RELATED TO SUCH CLAIMS.

14. LIABILITIES AND DAMAGES: Buyer agrees that if products are nonconforming, Buyer’s exclusive remedy shall be one of the following, at Seller’s option, (a) repair or replacement of the nonconforming products or (b) repayment to Buyer of the purchase price. IN NO EVENT SHALL BUYER BE ENTITLED TO (NOR ACS LIABLE FOR) ANY CONSEQUENTIAL, INCIDENTAL OR CONTINGENT DAMAGES OF ANY KIND, WHETHER ARISING OUT OF THIRD PARTY CLAIMS AGAINST BUYER OR BREACH OF CONTRACT, TORT, WARRANTY (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY ACS, OR ANY UNDERTAKINGS, ACTS, OR OMISSIONS RELATING THERETO.

15. LIMITATIONS ON SUITS AND ACTIONS: No action or suit to enforce Buyer’s rights or remedies arising from this sale shall be commenced later than one year from the date of shipment.

16. APPLICABLE LAWS: All orders, sales and these terms and conditions shall be governed by the laws of the State of Ohio excluding conflict of law rules. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply. All laws and regulations required to be incorporated in agreements of this character are incorporated herein by this reference. ACS certifies that these products were produced in compliance with all applicable requirements of Section 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor under Section 14 thereof. Any commodities, technology, or software exported pursuant to these terms and conditions will be exported from the United States in accordance with U.S. laws and regulations, including the Export Administration Regulations or International Traffic in Arms Regulations, as applicable. Diversion, exportation or re-exportation contrary to U.S. law is prohibited.

17. ENTIRE AGREEMENT: These terms and conditions constitute the entire agreement between ACS and Buyer with respect to the subject matter thereof, and there are no understandings, agreements or representations, express or implied, which are not contained herein.