Gasmet Technologies Inc. Terms and Conditions of Sale

Gasmet Technologies Inc.
5865 McLaughlin Road, Unit #1
Mississauga, ON L5R 1B8

Definitions.

(a) “Buyer” means the individual or entity identified on Buyer’s purchase order, or, if different, on Seller’s Quote.

(b) “Equipment” means any machinery, apparatus, part or equipment on which Services are being performed.

(c) “Products” means any machinery, apparatus, part, equipment, accessories, materials or supplies provided by Seller to Buyer under the Quote and these Terms.

(d) “Quote” means a quotation or proposal provided by Seller to Buyer describing specifications and terms applicable to the provision of certain Services by Seller to Buyer including any revisions and amendments to these Terms or to any terms or specifications in Seller’s quotation or proposal reflected in any acknowledgement, confirmation or sales order transmitted by Seller to Buyer after receipt of Buyer’s purchase order.

(e) “Seller” means Gasmet Technologies Inc. (GTI) GTI is a member of the Gasmet group of companies, and is a fully-owned subsidiary of Gasmet Technologies Oy. (Helsinki, Finland)

(f) “Services” means any services provided or sold by Seller, such as: field installation, commissioning, system audit, troubleshooting, inspection, training, repair, or maintenance of Equipment.

(g) “Terms” means these Terms and Conditions for the Sale of Products and Services.

(h) “Work Site” means the Buyer’s facility or work site where the Services will be provided.

Acceptance.

All orders received from Buyer are subject to acceptance by Seller and Seller reserves the right, in its sole discretion, not to accept any purchase order, including any purchase order issued in connection with a Quote provided by Seller. Without limiting the foregoing,

Seller may reject any purchase order if it determines, in its sole discretion, Buyer may not have the ability to perform its obligations hereunder and
Seller may condition its acceptance of any purchase order on Buyer’s execution of sale and/or lease documents in form prescribed by Seller and embodying credit terms acceptable to Seller. Seller’s acceptance shall be evidenced by the delivery of an order acknowledgment to Buyer that includes confirmation of part numbers, pricing, shipping and billing details, and other order-specific information.

Unless Seller expressly agrees in writing, these Terms will govern all purchase orders and Quotes for Products and Services, and Seller’s acceptance of any purchase order submitted by Buyer is conditional on Buyer’s acceptance of these Terms. Seller specifically rejects, and Buyer disclaims, all pre-printed provisions in Buyer’s purchase order and any other Buyer forms or documents. Seller’s failure to object to any term or condition in any communication from Buyer will not be construed as agreement to such term or condition, nor will it be deemed a waiver of these Terms. Orders accepted by Seller cannot be cancelled by Buyer except with Seller’s written consent and upon terms that will indemnify Seller against loss as defined in the Cancellation clause below.

Changes.

Buyer may, by written notice to Seller, request changes in, additions to, or deletions from the Products or Services. Seller may grant or deny such request in its sole discretion. If any requested change will increase the time required to design, manufacture, fabricate or deliver the Products or to perform the Services, an equitable adjustment will be made in the schedule for the delivery of the Products (or any other deliverable affected by such change) and the performance and completion of the Services. If the Services are being performed on a fixed price basis, and if any change increases the cost to Seller of performing such Services, then an equitable adjustment will be made in the Price. If any requested change will increase the number of Products or change the specifications for the Products, an equitable adjustment will be made in the Price. In the event that any change is requested by Buyer, Seller shall be entitled to halt or delay the design, manufacture, fabrication or shipment of the Products and the performance of the Services until an equitable adjustment with respect to the schedule, Price, or both is agreed between Seller and Buyer.

Cancellation.

Seller and Buyer recognize that due to the uniqueness of the Products ordered and Services to be performed, the calculation of damages which would result from cancellation or suspension of the order would be difficult.

If Buyer attempts to cancel an order by providing a written cancellation request prior to Seller’s completion of delivery of all Products or Services and Seller provides written consent to cancel:

Seller will stop remaining work as soon as is practical,
Seller will totalize incurred and expected costs for:
1. all work performed through time of stoppage,
2. all non-refundable fees (or cancellation fees, as applicable) incurred preparing delivery plus a 20% administrative fee,
3. storage and disposal costs for parts or materials that cannot be re-purposed for use in other Seller orders,
4. expected costs to prepare parts or materials to be re-purposed for use in other Seller orders,
5. direct return of parts to Seller inventory require a 20% re-stocking fee. Parts or materials returned from Buyer to Seller are subject to evaluation to determine if they can be returned to inventory. Seller does not guarantee that all parts or materials can be directly returned to inventory.
Costs from (a), (b), (c), (d), and (e) will be used to determine the final order cancellation fee at Seller’s discretion.

Seller will provide Buyer written notice of the final order cancellation fee. Seller will maintain the work stoppage for 10 working days following the notice.

Seller acceptance of Buyer purchase order containing the final order cancellation fee during the 10 day period will extend the work stoppage, and order cancellation is complete following Seller’s receipt of payment of the final order cancellation fee from Buyer.
Seller’s consent to cancel is revoked if Seller does not accept Buyer purchase order containing the final order cancellation fee during the 10 day work stoppage following the written notice. Seller will immediately resume work on Buyer’s purchase order upon completion of the 10 day work stoppage.

Transportation, Delivery, and Risk of Loss.

No freight is allowed unless stated in Seller’s quote (if any). If the quoted price includes transportation, Seller reserves the right to designate the common carrier and to ship in the manner it deems most economical. Added costs due to special routing requests, broker designations, or failure to follow Seller’s shipping instructions are chargeable to the Buyer. All orders shipped using Buyer’s collect account with a common carrier will ship with FOB Origin delivery terms.

Delivery of all Products shall be made, and risk of loss shall transfer, in accordance with the delivery term set forth in the Sales Order Confirmation. Title to any Product shall only pass upon Seller’s receipt of payment in full for such Product.

Prices.

The price for the Products and Services shall be as set forth in the Quote. (the “Price”)

To the extent the Price for Services is based on a time and materials basis, the Price shall be determined based on Seller’s standard labor rates (the “Rate Sheet”), a copy of which is available upon request. The Price is based on working up to eight straight-time hours per day, Monday through Friday inclusive, and does not include any amount for wage premiums for overtime hours or for work on Saturday, Sunday and Holidays. All additional work requested by Buyer will be based at Seller’s rates, and may require wage premiums above Rate Sheet values that are Buyer’s sole responsibility.

In the event of any work stoppage or schedule delay due to any act, omission, or delay of Buyer, Buyer shall be responsible for all costs, fees, and expenses of such work stoppage or schedule delay. This may include, but is not limited to, expenses for: time, materials, storage, handling, transportation.

In the event of a transaction including Buyer operation of Seller-owned assets, Buyer shall be responsible for the return of all Seller’s assets in a timely manner. Buyer guarantees that, following return to Seller, the condition of all Seller-owned assets will be the same as the condition when the assets were originally received by Buyer. Buyer shall be responsible for all costs, fees, and expenses required for Seller-owned assets to be returned to the same condition as original receipt by Buyer.

Taxes.

Seller’s prices do not include taxes with respect to the sale, purchase, delivery, storage, processing, use, consumption, transportation or performance of any of the Products or Services or any of the products or materials provided by Seller in connection with the Services. Any such taxes which Seller may be required to pay or collect under any existing or future law, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of Buyer, who shall promptly pay the amount thereof to Seller upon demand, unless Buyer provides Seller with a properly executed certificate representing that Seller is not required to collect any such taxes. Buyer will indemnify and save Seller harmless from any liability, penalties or expenses incurred by Seller as a result of its reliance upon such certificate.

Payment Terms.

Unless otherwise set forth in Seller’s Quote, payment terms are Prepayment in Advance. Seller accepts payment methods including: ACH, EFT, and credit card. If Buyer uses a credit card for payment of an order above $10,000 USD in total value, Buyer is responsible for an additional transaction fee that will be added to the invoice or re-charged by Seller.

Seller may extend credit-based payment terms to Buyer for purchase orders above $10,000 USD in total value. Any such payment terms will be offered after a risk evaluation following Buyer’s completion and submission of Seller’s credit application. A monthly finance charge of 1.5% (18% annually) shall be imposed on any portion of Buyer’s account not paid within the credit terms offered to Buyer from the due date for payment until the actual date of payment.

Standard Lead Times.

Buyer must provide a final purchase order in form and content acceptable to Seller (a “Final PO”) a minimum of one week prior to the estimated lead time for Services set forth in Seller’s quotation. Any Final PO received by Seller less than one week prior to the estimated lead time for the Services may be subject to, and Buyer shall be responsible for, additional charges such as: overtime, extra work required, additional travel costs, supplier expedite charges, shipping, or any other costs incurred by Seller.

All Products shall be subject to Seller’s standard lead times, which time will be based on the date of the Final PO. Buyer acknowledges and agrees that, until receipt and acceptance of the Final PO by Seller, no Services will be scheduled, no parts, supplies or materials ordered, no Products designed, manufactured or shipped, and no commitment regarding timing of the Services or delivery of the Products will be made by Seller. Furthermore, Buyer acknowledges that, to the extent Seller provides any performance dates, timetables or project milestones that all such performance dates, timetables and project milestones are Seller’s estimate of such dates and are based, in part, on information supplied by Buyer and are not firm commitments. In addition, all performance dates, timetables and project milestones shall be extended, day for day, for each day of delay in the completion of any milestone, inspection, or approval resulting from any act, omission or delay of Buyer or any of Buyer’s other contractors, subcontractors, customers or suppliers, or resulting from any other delay not caused by Seller.

Seller reserves the right to ship in advance of any of Buyer’s requested dates, except as specifically agreed by the parties. Notwithstanding any provision hereof to the contrary, Seller reserves the right to make delivery in lots. Upon delivery of each lot, Seller shall have the right to immediately invoice an appropriate portion of the total purchase price for the Products. Should shipment be held beyond scheduled date for the convenience of the Buyer, at the request of the Buyer, or following any act, omission or delay of Buyer then in addition to any other rights or remedies specified herein, the Seller reserves the right to bill immediately for the Products and to charge Buyer for warehousing, insurance, trucking charges, mobilization and demobilization costs and expenses, and all other costs and expenses incident to or occasioned by such delay.

Work Site Preparation.

If Seller has agreed to provide Services such as: commissioning, start-up, or on-site servicing of the Products at Buyer’s location, Seller warrants that such Services will be performed in a workmanlike manner. Seller shall have access to the Work Site to permit movement of any equipment and materials needed to maintain or complete any portions of the Services. Seller will comply with, and will require that its employees comply with, Buyer’s instructions regarding signs, advertisements, fires and smoking, and shall not unreasonably encumber the Work Site outside the site of installation.

Buyer shall pay all costs of installation, such as:

the acquisition of all licenses, work permits, bonds, and all other work authorizations,
subcontractors and/or skilled trades workers,
any modifications to Buyer’s plant, equipment, land, or environment which are necessary to accommodate the Products. SELLER SPECIFICALLY DOES NOT WARRANT THAT SUCH MODIFICATIONS WILL NOT BE NECESSARY.

In addition, Buyer shall be responsible for all preparations provided by Seller including, without limitation, all site preparation, and all required materials, supplies, or products identified as Buyer’s responsibility in Seller preparation communications sent in advance of Services visit.

Warranty.

This warranty applies to the Gasmet brand name products sold with this warranty statement. The warranty period varies by product, check the warranty period, if necessary.

Gasmet Technologies Oy and its subsidiaries guarantee that all products manufactured and sold by it are free of defects in materials and workmanship under normal use during the warranty period. The products of Gasmet Technologies Oy and its subsidiaries are manufactured using new materials or new and used materials equivalent to new in performance and reliability. Spare parts may be new or equivalent to new.

Gasmet Technologies Oy and its subsidiaries agree to either replace or repair free of charge (Ex Works Helsinki, Incoterms 2010) any such defective product or part that is returned to its repair facility within one (1) year of the delivery date. All parts or products removed under this warranty become the property of Gasmet Technologies Oy or its subsidiaries. The replacement product or part takes on the warranty status of the removed product or part.

The warranties of Seller do not cover, and Seller makes no warranty with respect to:

any product from which the serial number has been removed;
any product that has been damaged or rendered defective as a result of:
1. accident, misuse, abuse, normal wear of components or other external causes;
2. by operation outside the usage parameters stated in the user documentation that is provided with the product;
3. by the use of parts not manufactured by Gasmet Technologies Oy and its subsidiaries;
4. by modification or service by anyone other than Gasmet Technologies Oy and its subsidiaries;
failures not reported to Seller within the warranty period;
expenses incurred by Buyer in an attempt to repair or rework any alleged defective product;
defects in material and workmanship which are attributable to drawings and/or specifications provided by Buyer;
any electrical issues and component failures (Pumps, I/O, PLC, etc.) where either:
1. a licensed electrician has not performed the field power and control wiring and/or
2. the electrician has not followed nationally recognized best practices.

Seller warrants that the Services described herein are free from defects in workmanship. If any such defect exists or appears within ninety (90) days after the performance of such Services, Seller shall undertake, at its sole expense, prompt remedial action as stated herein to correct the same, provided, however, that Seller shall have no obligation or liability under this warranty unless it shall have received written notice specifying such defect. Seller’s obligations under the foregoing warranty shall also be contingent on Buyer‘s full compliance with all of its obligations under these Terms, the Quote and any other agreement entered into by Buyer and Seller in connection with these Terms or the Quote, including but not limited to payment in full in respect of the Products and the Services.

The performance of any Services by Seller with respect to any Equipment, Products, accessories, materials or supplies not manufactured by Seller are specifically excluded from the warranty set forth in this Section. All warranties with respect to any Products or Equipment supplied by Seller but not manufactured by Seller shall be limited to their respective warranties of the manufacturers thereof, if any, which Seller may be permitted to pass on to Buyer. Seller makes no warranty with respect to any Equipment, accessories, materials or supplies supplied by the Buyer.

THE WARRANTIES IN THIS SECTION ARE EXCLUSIVE, ARE MADE ONLY TO BUYER, AND EXCEPT AS EXPRESSLY SET FORTH IN THIS WARRANTY SECTION, SELLER SPECIFICALLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR ITS EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.

The warranties in this Section constitute Seller’s entire and exclusive liability for any claim or damages for breach of warranty in connection with the Products and Services. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, THE QUOTE, BUYER’S PURCHASE ORDER OR IN ANY OTHER DOCUMENT OR AGREEMENT RELATED TO THE QUOTE OR THE PROVISION OF THE PRODUCTS OR SERVICES, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTIAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, LOSS OF CUSTOMER GOODWILL, BUSINESS INTERRUPTION COSTS, OVERHEAD COSTS, LOST PROFITS, COSTS OF CAPITAL, OR LOSS OF USE OF MONEY ARISING OUT OF OR RELATED TO ANY BREACH OF WARRANTY IN CONNECTION WITH THE PRODUCTS AND SERVICES. CONSEQUENTIAL DAMAGES ALSO INCLUDE ATTORNEYS’ FEES.

Indemnification.

To the fullest extent permitted by law, Seller agrees to and will defend, protect, indemnify and hold harmless Buyer and its officers, directors, employees and agents from and against all claims, losses, expenses (including reasonable attorneys’ fees), damages, demands, judgments, causes of action, suits, and liability in tort, contract, or any other basis and of every kind and character whatsoever (hereinafter in this and the following paragraphs collectively referred to as “Claims”), to the extent arising out of or resulting from:

any breach by Seller of these Terms;
any negligence or willful misconduct of Seller in connection with the performance of its obligations under these Terms. Such obligation to indemnify shall not apply to the extent that any Claim results from the negligence or willful misconduct of Buyer or a related party.

To the fullest extent permitted by law, Buyer agrees to and will defend, protect, indemnify and hold harmless Seller and its officers, directors, employees and agents from and against all Claims to the extent arising out of or resulting from:

any breach by Buyer of these Terms;
any negligence or willful misconduct of Buyer in connection with these Terms including, without limitation, Buyer’s negligent or improper installation, assembly, adjustment, modification, alteration, repair, use, operation or maintenance of any Product or Equipment or component thereof or any conditions at the Work Site. Such obligation to indemnify shall not apply to the extent that any Claim results from the negligence or willful misconduct of Buyer or a related party.

If either Buyer or Seller intends to seek indemnification for any Claim, then such party shall notify the other party promptly in writing, describing such Claim in reasonable detail. The party from whom indemnification is sought shall have the right to conduct and control, through counsel of its own choosing, any third party claim, action or suit, but the party seeking indemnification may, at its election, participate in the defense of any such claim, action or suit at its sole cost and expense.

Limitation of Liability.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, THE QUOTE, BUYER’S PURCHASE ORDER OR IN ANY OTHER DOCUMENT OR AGREEMENT RELATED TO THE QUOTE OR THE PROVISION OF THE PRODUCTS OR SERVICES, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER IN CONTRACT, TORT, STRICT LIABILITY OR ON ANY OTHER BASIS, FOR ANY INCIDENTIAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR REVENUES, LOSS OF CUSTOMER GOODWILL, BUSINESS INTERRUPTION COSTS, OVERHEAD COSTS, LOST PROFITS, COSTS OF CAPITAL, OR LOSS OF USE OF MONEY. CONSEQUENTIAL DAMAGES ALSO INCLUDE ATTORNEYS’ FEES.

Any action for breach of contract or warranty, strict liability or based on negligence must be commenced within one (1) year after the action has accrued and any recovery therefrom will be limited to the replacement of any defective Product, the re-performance of any defective Services or damages not to exceed the lesser of:

the amount of the Price attributable to the defective Products and Services or;
ten percent (10%) of the total Price paid for Products and Services pursuant to the Quote.

Remedies for Breach.

A “Breach” of these Terms shall occur if Buyer

fails to pay any amount due within thirty (30) days of the due date,
files a petition in bankruptcy or seeks relief under any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar law of any jurisdiction,
becomes unable to pay or suspends payment of its debts as they become due, or if a court issues an order appointing a receiver, custodian or administrator over all or part of Buyer’s assets, or
any of its affiliates breach any agreement with Seller or any of its affiliates. In the event of a Breach, Seller may terminate any outstanding purchase order.

In addition, without waiving any other available remedies, Seller may:

declare immediately due and payable all sums due and to become due under any outstanding purchase order;
stop performance of any Services for Buyer;
stop the design, manufacture, fabrication or shipment of any Products and
stop performance of any services or the design, manufacture, fabrication or shipment of any products under any other agreement between Buyer or any of its affiliates and Seller or any of its affiliates.

Costs and Expenses.

Buyer agrees to pay Seller all costs and expenses, including reasonable attorney’s fees (including those on appeal) incurred by Seller in exercising any of its rights and remedies hereunder, and including specifically the collection of any outstanding balance owed to Seller by Buyer.

Confidentiality.

In connection with the performance of their respective obligations under this Agreement, each of Buyer and Seller has or may disclose Confidential Information (as defined below) to the other party. The Recipient (as defined below) shall:

use the Disclosing Party’s (as defined below) Confidential Information solely for the purposes of this Agreement, and not for any other purpose;
safeguard the Confidential Information to prevent its disclosure to or use by third parties;
not disclose the Confidential Information to any third party; and
not reverse engineer, disassemble, or decompile the Confidential Information.

In addition, no rights or licenses are granted or implied to the Recipient under any patents, trademarks, copyrights, designs, trade secrets or other intellectual property rights of the Disclosing Party except as may be specifically agreed to in writing by the Disclosing Party.

Upon the Disclosing Party’s request, or upon termination of this Agreement for any reason, the Recipient shall return to the Disclosing Party or destroy, at the Recipient’s option, all Confidential Information of the Disclosing Party and any copies or portions thereof in whatever form. The ownership of Confidential Information and of any other patents, copyrights, designs, trademarks, trade secrets and other intellectual property rights of the Disclosing Party shall remain vested in the Disclosing Party or its affiliates.

Notwithstanding the foregoing, each party, as the Recipient of Confidential Information, may retain one of copy of such Confidential Information for legal retention purposes or to maintain a record of the extent of disclosure hereunder, and shall not be required to delete electronically archived materials or information. Confidential Information so retained shall remain subject to the terms of this Agreement.

“Confidential Information” means all non‐public, confidential, or proprietary information disclosed before, on or after the date of this Agreement, by either party (a “Disclosing Party”) to the other party (a “Recipient”) or its affiliates, or to any of such Recipient’s or its affiliates’ employees, officers, directors, partners, shareholders, agents, attorneys, accountants, or advisors (collectively, “Representatives”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” including, without limitation, all information concerning the Disclosing Party’s and its affiliates’, and their customers’, suppliers’, and other third parties’ past, present, and future business affairs including, without limitation, finances, customer information, supplier information, products, services, organizational structure and internal practices, forecasts, sales and other financial results, records and budgets, and business, marketing, development, sales and other commercial strategies, the Disclosing Party’s unpatented inventions, ideas, methods and discoveries, trade secrets, know‐how, unpublished patent applications, and other confidential intellectual property, all notes, analyses, compilations, reports, forecasts, studies, samples, data, statistics, summaries, interpretations, and other materials prepared by or for the Recipient or its Representatives that contain, are based on, or otherwise reflect or are derived from, in whole or in part, any of the foregoing.

Confidential Information shall not include:

information which at the time of disclosure is published or is otherwise in the public domain;
information which after disclosure becomes part of the public domain other than through a breach of this Agreement by the Recipient;
information which was known to the Recipient prior to receipt from the Disclosing Party;
information which becomes rightfully known to the Recipient from a source which legally derives such information independently from the Disclosing Party under this Contract;
information which the Recipient can prove by written documentation has been independently developed by the Recipient, without breach of this Agreement.

If Confidential Information is required to be disclosed pursuant to judicial process, the Recipient shall, to the extent permitted by applicable law, promptly provide notice of such process to the Disclosing Party and, shall fully cooperate with the Disclosing Party in seeking a protective order or otherwise contesting such a disclosure. Disclosure of such requested Confidential Information shall not be deemed a breach of this Agreement provided that the obligations of this Confidentiality Section are fulfilled by the Recipient.

Intellectual Property Rights.

Intellectual property rights (whether arising under patent, trademark, copyright laws or otherwise) to all improvements embodied in designs, tools, patterns, drawings, information and Products supplied by Seller under the Quote and these Terms, and exclusive rights for the use and reproduction thereof, and all intellectual property rights arising out of the performance under the Quote and these Terms shall accrue and be assigned to, and be owned by, Seller, and Purchaser shall execute and deliver such instruments as may be necessary to effect or confirm such ownership.

Force Majeure.

Seller shall not be responsible for any delay or failure in performance of any part of the Quote, these Terms, delivery of the Products or the performance of the Services to the extent such delay or failure is caused by an event beyond the reasonable control of Seller including, without limitation, governmental action, fire, explosion, acts of God, flood, war, riot, accident, blockades, insurrections, riots, epidemics, earthquakes, hurricanes, tornadoes, floods, abnormal snow or hail storms, labor trouble, shortages of labor or materials, increases in material costs, transportation difficulty, acts of the public enemy, the existence of any circumstance making performance commercially impractical.

Assignment.

These Terms are binding upon, and shall inure to the benefit of Buyer, Seller and their successors and permitted assigns. Buyer may not assign all or any portion of its rights or obligations hereunder without the prior written consent of Seller. Seller may assign, delegate or subcontract a purchase order or any of its obligations under the Quote or these Terms, in whole or in part, without Buyer’s consent.

No Waiver.

Seller’s waiver of any breach of any provision contained in these Terms will not waive any other breach by Buyer. Seller’s delay or failure to enforce its rights under these Terms shall not be deemed a waiver of such rights.

Governing Law; No Class Action; Venue; Jurisdiction; Waiver of Jury Trial.

The Quote, these Terms, any agreement entered into in connection with the Quote or these Terms and any affiliated obligations and any action arising thereunder will be governed by and construed in accordance with the laws of the State of North Carolina, including the Uniform Commercial Code as adopted in the State of North Carolina, without regard to conflict of laws principles.

Any agreement entered into in connection with the Quote or these Terms shall be deemed entered into in the State of North Carolina. The United Nations Convention on Contracts for the International Sale of Goods shall not apply . All shipping and delivery terms specified in these Terms, the Quote or any other document entered into in connection with these Terms or the Quote will be defined as set forth in the Incoterms 2010 published by the International Chamber of Commerce. No claim or cause of action may be asserted as a class action or on behalf of a class, and no person or entity shall have a right to institute or maintain claims in litigation as a class action or on behalf of a class.

BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN MECKLENBURG COUNTY, NORTH CAROLINA, OR ANY FEDERAL COURT LOCATED IN THE STATE OF NORTH CAROLINA AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE PURCHASE ORDER. NOTHING IN THIS AGREEMENT AFFECTS THE RIGHT OF SELLER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS JURISDICTION OVER BUYER. TO THE EXTENT PERMITTED BY LAW, BUYER WAIVES TRIAL BY JURY AND WAIVES ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT.

Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in the Quote, Buyer’s purchase order, these Terms or in any other document or agreement related to the Quote or the provision of the Products or Services shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the Quote or these Terms.

Subcontracting.

Seller reserves the right to subcontract all or any all portion of the Products or Services.

Severability.

Any part of these Terms held to be invalid or unenforceable by a tribunal of competent jurisdiction shall be deemed ineffective to the extent thereof without affecting the validity or enforceability of any other part of these Terms.

Nuclear Sales.

The Products sold hereunder are not designed or manufactured for use in or with any atomic installation or activity.

Export Control.

If Buyer transfers Products and Services (hardware and/or software and/or technology as well as corresponding documentation) delivered by Seller, Buyer shall comply with all applicable national and international export (and re‐export) control regulations. In any event of such transfer of Products and Services Buyer shall also comply with the (re‐) export control regulations of the European Union and of the United States of America.

The Buyer warrants that it is not subject, directly or indirectly to any EU, US, UN or other nation’s sanctions. Seller shall not be obligated to supply any Products or Services if such supply is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargoes or other sanctions.

Nederman Insight.

If as part of the Agreement Buyer has elected to purchase a subscription to Seller’s proprietary equipment monitoring software known in the marketplace as Nederman Insight™ (“Nederman Insight”), Buyer understands, acknowledges and agrees that access to and use of Nederman Insight is governed by the Insight Master Subscription Agreement set forth at https://www.nederman.com/en‐us/myair/insight/msa (the “MSA”), all terms and conditions of which are incorporated in this Agreement by reference.

By electing to purchase a subscription to Nederman Insight, Buyer also accepts the MSA and agrees to be bound by and adhere to all terms and conditions in the MSA. Buyer understands that it is Buyer’s responsibility to download and/or print a copy of the MSA for its records and for reference as to the terms and conditions governing access to and use of Nederman Insight. Unless otherwise set forth in the applicable order documentation, all fees for each subscription period are payable annually in advance. The initial invoice for such subscription fees will be delivered on or promptly following the date of the applicable order documentation, and invoices for each applicable renewal period will be sent approximately thirty (30) days prior to the commencement of the renewal period. All such invoices are payable net thirty (30) days of the date of the invoice.

Entire Agreement; Amendments.

The entire agreement of Seller and Buyer is expressed exclusively in the terms, covenants and conditions set forth in these Terms, Seller’s Quote, and Seller’s acceptance or acknowledgement of Buyer’s purchase order. No agent, representative or employee of Seller has authority to agree, represent or warrant otherwise, except Seller’s officers, and then only in writing. These Terms supersede all other written or oral agreements between the parties. Seller and Buyer may modify these Terms, or the associated Quote or purchase order acknowledgement, only by an express written agreement signed by both parties.