Terms & Conditions of Sale


A.   GENERAL. These TERMS AND CONDITIONS OF SALE INCLUDING LIMITATIONS OF WARRANTY (hereinafter “Terms and Conditions”) of Twinlode Corporation (“Twinlode”) shall apply to all sales of TWINLODE® Rack Systems and other products manufactured and/or sold by Twinlode and any ancillary services provided by Twinlode.

B.   ORDER PLACEMENT. Placement of order by Buyer shall be in accordance with Twinlode’s then current procedure. Acceptance by Twinlode of Buyer’s order is expressly conditioned upon Buyer’s acceptance of these Terms and Conditions, including those on the face of Twinlode’s written proposal or order acknowledgment, and any provisions of Buyer’s order or other communication in conflict with, inconsistent with, or in addition to these Terms and Conditions are expressly rejected. Buyer acknowledges that no representation or warranty other than those contained in this document have been made or relied upon.

C.   PRICE, DELIVERY AND DELAY. Unless otherwise provided on the face of hereof or agreed by Twinlode in writing, price and delivery terms shall be F.O.B. shipping point. Prices do not include any federal, state, or local taxes. Unless otherwise agreed in writing, Twinlode will select the route and manner of shipment, and reserve the right to make delivery in installments when necessary, to invoice each installment separately and to expect payment for each installment within Twinlode’s selling terms. All risks of loss or damage shall pass to Buyer at the place and time such goods are placed into the possession of the carrier or shipper, in accordance with the previously referenced F.O.B. shipping point term. Buyer shall be responsible for obtaining and paying for insurance to cover any loss to Buyer. Buyer shall reimburse the Seller for the contract price in the event of loss of the goods. Prices for goods shall be those in effect on the date of invoice unless otherwise provided by this Twinlode’s written proposal, order acknowledgment or otherwise agreed to in writing by Twinlode. If Buyer fails to accept delivery, according to the agreed upon delivery schedule, Twinlode may cancel the then remaining balance of the order. Such cancellation, if elected by Twinlode, shall be in addition to, and not in lieu of, any other rights or remedies that Twinlode may have at law or equity. Prices are only good for quantities indicated. If shipment or any other act or condition affecting payment for the goods or any part of them shall be delayed on account of Buyer, payment shall be due as if shipment had been made. A reasonable storage charge may be made and such storage shall be at the risk of Buyer. Twinlode shall not be liable for any direct, indirect, consequential, special, or incidental losses or damages to Buyer or to any third parties resulting from Seller’s delay in shipment regardless of cause, including but not limited to those causes set forth in the Force Majeure section of this document.

D.   CHANGES IN SPECIFICATIONS OR DESIGN. If Buyer requests any change in quantity, specification or design relating to any goods, or changes of delivery date and/or schedules, such proposed change shall be subject to the terms and conditions contained herein and must be approved in writing to be binding upon Twinlode. Product information and specifications set forth herein are current as of the date hereof.

E.   PAYMENT, CREDIT AND SECURITY. All payments shall be in U.S. dollars. Unless otherwise provided in writing by Twinlode, payment shall be due as follows: 50% deposit upon the earliest of Buyer’s execution of Twinlode’s written proposal or upon delivery of Buyer’s purchase order; 30% prior to shipment; and 20% upon installation. All orders received are subject to credit approval. Buyer agrees to submit from time to time to Twinlode those items reasonably requested in order to establish or update Buyer’s credit. Twinlode shall be entitled to charge interest for payments not made in accordance with the stated or agreed upon terms of payment at lesser of 18% per year or the highest rate permitted by law on the date(s) such payment(s) were due. Whenever Twinlode in good faith deems itself insecure, it may, without prejudice or waiving any other rights or remedies it may have at law or equity, cancel any outstanding orders with Buyer and/or hold production/shipment of any unfilled orders, modify or revoke its extension of credit to Buyer, and take any other steps permitted by law and necessary or desirable to secure Twinlode with respect to Buyer’s payment for goods and services furnished or to be furnished. Buyer will pay Twinlode’s actual costs of collection, including but not limited to court costs, additional litigation expenses, and reasonable attorneys’ fees, incurred for collection of any delinquency. Title to the goods shall remain with Twinlode until Buyer receives physical possession of the goods and the goods are fully paid for by the Buyer. Buyer shall have no right of offset against amounts owed to Twinlode.

F.   ACCEPTANCE. Goods furnished or services performed by Twinlode in all events will be deemed to have been accepted within thirty (30) days after receipt of Buyer, unless rightfully rejected within such period by written notice to Twinlode, by certified mail, return receipt requested, setting forth all of the defects upon which the rejection is claimed. Claims for factory damage or shortages shall not be considered unless made in writing within ten (10) days after receipt of the goods or services and accompanied by reference to Twinlode’s invoice numbers. Buyer’s claims for damage or shortage in transit must be filed by Buyer against carrier. Defective goods shall be held for Twinlode’s inspection or disposition.

G.   LIMITED WARRANTY AND REMEDY.

  1. Twinlode warrants that all goods sold by Twinlode will be of the kind and quantity specified in Twinlode’s written proposal or order acknowledgment, and are free from defects in title and defective workmanship or material as of the time and place of delivery by Twinlode. This warranty is extended to Buyer for a period of twelve (12) months (unless limited further below) from the date of delivery. If, within the applicable warranty period any part within the scope of this warranty proves to be defective in material or workmanship, Twinlode shall, at its option, repair, replace, or authorize the repair or replacement of the defective part.
  1. In order to obtain performance of the obligations under this warranty, the Buyer must promptly (in no event later than thirty (30) days after discovery of the defect) give written notice of the defect to Twinlode Corporation, 51024 Portage Road, South Bend, Indiana 46628, and, at Twinlode’s discretion, return the defective part or product to Twinlode or to such other party as designated by Twinlode. All transportation shipping costs and the return of such parts shall be at Buyer’s expense. This warranty does not extend to any defect or problem caused by the negligence or acts of Buyer, or others, failure to properly install, operate or maintain the product in accordance with installation, operating and/or maintenance instructions furnished with such products, unreasonable use, accidents, alterations, or ordinary wear and tear. Twinlode WILL NOT BE RESPONSIBLE OR LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, however arising, including but not limited to use of any products, loss of time, inconvenience, lost profit or other incidental or consequential damages with respect to persons, business, or property, whether as a result of breach of warranty, negligence or otherwise. Notwithstanding any other provision of this Proposal, BUYER’S REMEDY AGAINST Twinlode FOR GOODS SUPPLIED OR FOR NON-DELIVERY OR FAILURE TO FURNISH GOODS, WHETHER OR NOT BASED ON NEGLIGENCE, STRICT LIABILITY OR BREACH OF EXPRESS OR IMPLIED WARRANTY, IS LIMITED SOLELY, AT Twinlode’S OPTION, TO REPLACEMENT OF OR CURE OF SUCH NONCONFORMING OR NON-DELIVERED GOODS OR RETURN OF THE PURCHASE PRICE FOR SUCH GOODS AND IN NO EVENT SHALL EXCEED THE PRICE OR CHARGED FOR SUCH GOODS. Twinlode EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE GOODS SOLD. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTIONS SET FORTH HEREIN, notwithstanding any knowledge of Twinlode regarding the use or uses intended to be made of goods, proposed changes or additions to goods, or any assistance or suggestions that may have been made by Twinlode personnel. This warranty may be altered only in writing signed by an officer of Twinlode. It may not be altered or extended orally or in writing by any other person.

H.   INDEMNIFICATION. Buyer shall defend, indemnify and hold Twinlode harmless from and against any and all claims, liabilities, loss, costs, damage or expense (including reasonable attorneys’ fees) of any kind or nature whatsoever relating to the goods and services provided by Twinlode hereunder, including, without limitation, Prices, including, without limitation, claims made for property damage or personal injury (including death), whether such claims are premised on contract or on tort (including, without limitation, strict liability) and shall include, but not be limited to, any such claims arising in whole or in part from Buyer’s dismantling of safety devices, if any, attached to the goods, failure to follow instruction manuals and product warnings, as well as other improper use of the goods. This indemnity provision shall not apply where such damage or injury is attributable solely to the negligence of Twinlode, its employees or agents.

I.   BUILDING STRUCTURE, ETC. Buyer will be responsible for providing a building structure and foundations, and any other necessary building work, in a condition suitable for the efficient reception, installation and maintenance of the goods. Twinlode accepts no responsibility for any damages or loss whatsoever arising from the inadequacy of the aforementioned structure and installations.

J.   FORCE MAJEURE. Twinlode will not be liable for any delay in the performance of its obligation under any proposal or order acknowledgment, or for any damages suffered by the Buyer by reason of such delay, when such delay is directly or indirectly caused by or in any manner arises from: fires; floods; accidents; riots; acts of God; governmental interference; embargoes; strikes; labor difficulties; shortages of labor, fuel, power, materials or supplies; transportation delays; any existing or future laws or acts of the federal or any state government (including, specifically, but not exclusively, any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Twinlode’s business; or any other cause or causes (whether or not similar in nature to any of those specified above) beyond Twinlode’s control.

K.   NO WAIVER. The failure of Twinlode upon knowledge of any default or violation by Buyer of any of these Terms and Conditions, or any agreement entered into between Twinlode and Buyer, to enforce its rights or remedies shall not be construed as a waiver of such default or violation, or of any provision hereof, or of any of its rights or remedies.

L.   CANCELLATION FOR INSOLVENCY OR INSTITUTION OF PROCEEDINGS. In the event of any suspension of payment or the institution of any proceedings by Buyer against Twinlode, or the initiation of voluntary or involuntary proceedings in bankruptcy or insolvency proceedings naming Buyer as a debtor, or proceedings under any provisions of the United States Bankruptcy Code in which Buyer is a debtor, or for the appointment of a receiver or a trustee or an assignee for the benefit of creditors, Twinlode shall be entitled to cancel this its order or any contract entered into without liability for loss of anticipated profits.

M.   LIMITATION OF LITIGATION AND ATTORNEY FEES. Any controversy or claim of Buyer arising out of or related to this Proposal must have accrued within the applicable warranty period, and then be commenced within one (1) year after the cause of action has accrued. Twinlode shall be entitled to reimbursement of all costs and expenses, including reasonable attorneys’ fees and other litigation expenses, from the Buyer relating to any lawsuit arising from any proposal, order acknowledgment or any subsequently entered into agreement in which Twinlode prevails.

N.   ENTIRE AGREEMENT, SEVERABILITY AND GOVERNING LAW AND FORUM. Except as otherwise agreed in writing, this constitutes the entire agreement between Twinlode and Buyer, superseding all prior proposals, quotations, orders, agreements and understandings, oral or written. All such previous communications are hereby abrogated and withdrawn, and no stipulations, representations or agreements by Twinlode, or its officers, agents, or employees shall be binding upon Twinlode unless reduced to writing and attached to and incorporated by reference herein, and no local, general, or trade custom shall alter or vary the terms hereof. Any questions, disputes, controversies, or litigation arising either directly or indirectly hereunder, including, but not limited to, disputes concerning the validity, interpretation or effect of the agreement between Twinlode and Buyer, or interpretations and enforcement of the rights and obligations of the parties hereunder, shall be governed by the laws of the State of Indiana; and the State courts of Indiana shall be the exclusive jurisdiction within which to resolve all such questions, disputes, controversies, or litigation. If any provision of this agreement is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of the other Terms and Conditions or any other provision hereof.

DMS 4884930v1

Terms & Conditions of Purchase


A.   ACCEPTANCE. These terms and conditions of this Purchase Order (“Purchase Order” or “Order”) apply to all purchases of products, materials and goods (collectively, “Goods”) and services, including, but not limited to, installation of racking systems and other services (“Services”) by Twinlode Corporation (“Buyer”).  This Purchase Order constitutes an offer by Buyer to Seller and becomes a binding contract on the terms set forth herein when it is accepted by Seller, either by acknowledgment or by the commencement of performance hereof. Any acceptance of this Purchase Order is limited to acceptance of its express terms and conditions. No revisions of this Order shall be valid unless in writing and signed by an authorized representative of Buyer; and no conditions stated by Seller in accepting or acknowledging this Order shall be binding upon Buyer if in conflict with, inconsistent with, or in addition to the terms and conditions contained herein, unless expressly accepted in writing by Buyer. In the event of a conflict between the terms of this Purchase Order and Seller’s acceptance or acknowledgment, the terms of this Order shall govern. Any proposal for additional or different terms or any attempt by Seller to vary in any degree the terms of this Order in Seller’s acceptance or acknowledgment, is hereby objected to and rejected.

B.   TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF GOODS.

  1. QUANTITIES. Quantities must equal the exact quantity ordered unless otherwise agreed in writing by Buyer. Overshipments will be returned and charged to Seller.
  1. ADVANCE MANUFACTURE AND SHIPMENT. Seller shall not manufacture or deliver any Goods in advance of the schedule set forth in this Order without Buyer’s written permission. Buyer reserves the right to return, shipping charges collect, all Goods received at Buyer’s place of business, or other specified destination, in advance of the schedule shown on this Order.
  1. INSPECTION AND TESTING. All Goods ordered will be subject to final inspection, testing, and approval at destination by Buyer. Payment for the Goods delivered shall not constitute acceptance thereof. Buyer shall have the right to hold, inspect, test, and reject any or all Goods that are in Buyer’s judgment defective or nonconforming, and reserves the right to hold, inspect, test, and reject such goods within a commercially reasonable time, as determined by Buyer’s own inventory, manufacturing, and sales requirements.
  1. REJECTS. Buyer reserves the right to reject and hold, at Seller’s risk and expense subject to Seller’s prompt advice as to disposal, all Goods not conforming to drawings and/or specifications and/or samples under the terms of this Purchase Order, or at Buyer’s discretion, to return any such Goods freight collect. Buyer may charge Seller all storage and handling expenses, including, but not limited to, those of unpacking, examining, repacking, storing and shipping such goods. No Goods returned as defective or non-conforming shall be replaced without an order. If any Good fabricated by Seller is rejected by Buyer due to Seller’s fault or failure to meet the requirements of drawings, specifications, and/or samples required under the terms of this Purchase Order, Seller shall at Buyer’s option, either replace such Good at Seller’s own expense or pay Buyer the replacement cost of the Good used therein. Seller’s obligations and Buyer’s rights under this paragraph shall be in addition to any other obligations of Seller, and rights or remedies which Buyer may have in law or equity.
  1. MODIFICATIONS. No modifications of or additions to the provisions or conditions of this Purchase Order, whether included by the Seller upon the copy thereof provided for its acceptance or otherwise proposed to the Buyer, will become a part of this Purchase Order unless accepted in writing by Buyer. If the Seller ships or tenders delivery of any goods covered by this Order before otherwise accepting it, such shipment, tender, or delivery shall constitute an acceptance of this Order in conformity with the terms hereof. Buyer’s acceptance of any non-conforming lot shall not waive Buyer’s rights to damages arising from such non-conformity, nor serve to modify Seller’s obligations hereunder, nor waive Buyer’s right to require conformity as to the remainder.
  1. PACKAGING AND CRATING. All items shall be packaged by Seller in suitable containers for protection in shipment and storage, and such items and/or packages will be properly and adequately marked and labeled. Prices set forth in this Order include all charges for Seller’s packaging, crating, storage, and for transportation to F.O.B. point.
  1. SHIPPING AND SHIPMENT. All shipments made by Seller to Buyer shall be F.O.B. Twinlode Corporation or other place of destination as may be set forth by Buyer, upon Buyer’s Purchase Order. If in order to comply with Buyer’s required delivery date it becomes necessary for Seller to ship by a more expensive way than specified in this Purchase Order, any increased transportation costs resulting therefrom shall be paid by the Seller unless the necessity for such rerouting or expedited handling has been caused by Buyer.
  1. WARRANTY. Seller represents and warrants that: (a) the Goods shall conform to all specifications, drawings, samples, and descriptions given; (b) Seller shall deliver good, exclusive, and marketable title to the Goods free and clear of all liens, security interests, claims, and encumbrances; (c) the Goods shall be free from defects in design, materials, warning, instruction and workmanship; (d) except as authorized by Buyer in writing, all Goods furnished, delivered or installed by Seller shall contain no asbestos; (e) the Goods shall satisfy all relevant governmental and industry standards; and (f) no federal, state, local or foreign statute, law, rule, regulation, or order will be violated in manufacturing, selling, or delivering of the Goods. Seller further warrants that all Goods furnished hereunder will be merchantable, and will be safe and appropriate for the purpose for which goods or services of that kind are normally used. If Seller knows or has reason to know the particular purpose for which Buyer intends to use the goods or services, then Seller also warrants that such goods or services will be fit for such particular purpose. Inspection, tests, and acceptance or use of the goods or services furnished hereunder shall not affect the Sellers obligations under this warranty, and such warranty shall survive inspection, tests, acceptance, and use. Seller’s warranty shall run to Buyer, and Buyer’s successors, assigns, customers, and to all users of the products sold by Buyer. Seller shall promptly repair or replace, at Buyer’s election, all Goods that do not comply with this warranty. Whenever any property of Buyer is sent to Seller’s premises for repair, refurbishment, or any other purpose related to Seller’s provision of warranty services, title to such property shall at all times remain with Buyer and such property shall not be subject to any lien, security interest, or other claim asserted by any creditor of Seller. Seller shall bear the risk of loss or damage to such property while it is on Seller’s premises and in transit between Buyer’s premises and Seller’s premises.

C.   TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF SERVICES.

  1. QUALIFICATIONS, SAFETY AND SECURITY AND OTHER POLICIES. Seller shall comply, and shall require its subcontractors to comply, with all applicable labor, employment, and immigration laws that may impact Seller’s obligations under this Order, including, but not limited to, federal, state and local laws, rules and regulations, and executive orders that are now or that become applicable to the Seller during the period the Seller is performing the Services hereunder. Seller shall comply with all laws relating to the verification of its workers’ eligibility to work in the United States. For any Services performed at a Buyer site (including any Buyer’s customer site), Seller and its subcontractors shall adhere to all policies, rules and requirements imposed by Buyer (or Buyer’s customer) in the course of performance of the Services. All Services performed by Seller or its subcontractors at a Buyer site (including any Buyer’s customer site), and the design of all equipment and systems brought onto such premises for the performance of Services, shall comply fully with all relevant federal, state and local laws, rules and regulations, including, but not limited to, the Occupational Safety and Health Act of 1970.
  1. WARRANTY. Seller represents and warrants to Buyer that: (a) Seller shall perform the Services in a professional and workmanlike manner, in accordance with the standards of care, thoroughness and competence normally practiced by recognized firms in the industry performing Services of a similar nature, and in full compliance with any final written descriptions, specifications, drawings and representations specified in the Purchase Order; (b) Seller shall employ only competent and experienced personnel to perform the Services; and (c) no applicable federal, state, local or foreign statute, law, rule, regulation or order will be violated in the performance of the Services. Seller shall use reasonable commercial efforts to promptly cure any breach of this warranty; provided, however, that if Seller cannot cure such breach within a reasonable time (but no more than 10 days) after Buyer’s written notice of such breach, Buyer may, at its option, terminate the Order by serving written notice of termination. In the event the Order is terminated pursuant to this Section, Seller shall within 10 days after the effective date of termination, refund to Buyer any fees paid by Buyer as of the date of termination for the Services, less a deduction equal to the fees for receipt or use of such Services up to and including the date of termination on a pro-rated basis. Seller’s warranty shall survive inspection, tests, acceptance, and use. Seller’s warranty shall run to Buyer, and Buyer’s successors, assigns, customers, and to all users of the products sold by Buyer.

D.   PRICES, SETOFF AND DISCOUNT TERMS. Prices, including, without limitation, production costs, transportation charges, packaging, insurance, taxes, tariffs, customs duties, and any other costs accepted by Seller (“Prices”) are not subject to change without Buyer’s written consent. No Prices will apply unless accepted by Buyer in writing. If a discount is allowed for payment within a specified time, the time for making payment so as to obtain such discount will not begin to run until the date the invoice or Goods are received by Buyer, whichever is later.

E.   REMEDIES. In addition to Buyer’s other remedies under Purchase Order, Seller agrees to promptly correct or replace defective and/or non-conforming Goods or Services not conforming to the foregoing warranty, without expense to Buyer, when notified of such non-conformity by Buyer, provided Buyer elects to provide Seller with the opportunity to do so. Such election, however, shall not in any manner waive, limit, or modify any other rights or remedies which Buyer, or Buyer’s successors, assigns, customers, and/or product users may have against Seller at law or equity. If Seller fails to correct or replace the defective non-conforming Goods or Services promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such Goods and Services and charge Seller for the costs incurred by Buyer in doing so, as well as for all other consequential, incidental, or special damages incurred. Seller shall recognize that Buyer’s production requirements may require immediate repairs or reworking of defective Goods or Services, or the purchase of substitute Goods or Services, without notice to Seller. In such event, Seller shall reimburse Buyer for the costs, delays, and other damages that Buyer has incurred.

F.   INDEMNIFICATION. Seller shall defend (at Seller’s expense), indemnify and hold harmless Buyer against all damages, claims, liabilities, and expenses (including but not limited to reasonable attorneys’ fees) arising out of or resulting in any way, directly or indirectly, from any defect or non-conformity in the Goods or Services purchased hereunder, including but not limited to defects in design, material, workmanship, or from failure of Seller to comply with safety inspection, labeling, instructional, or warning requirements imposed by law, governmental agencies, or industry standards, or from any act or omission of Seller, its agents, employees, or subcontractors. This defense, indemnification, and hold harmless obligation shall be in addition to the warranty obligations of Seller.

G.   PATENT AND LIEN PROTECTION. To the extent that the Goods delivered hereunder are not manufactured pursuant to the designs originated solely by Buyer, Seller guarantees that the sale and/or use of any or all Goods delivered hereunder will not infringe any United States or foreign patents, trademarks, or copyrights. Seller further agrees to indemnify, hold harmless, and defend at Seller’s own expense, Buyer against any and all claims of patent, trademark or copyright infringement or of unfair competition arising out of the sale, cataloging, marketing, packaging, or advertising of goods sold by Seller, as well as to defend, at Seller’s own expense, indemnify, and hold harmless Buyer against all liens, security interests, and/or encumbrances whatsoever asserted against such goods, including claims to said goods, asserted by others.

H.   INSURANCE. All materials, tooling, models, patterns, drawings and other personal property belonging to Buyer and furnished by Buyer to Seller or otherwise in Seller’s custody or possession, shall be at Seller’s risk from loss or damage from all hazards. In the event that Seller is required to enter premises owned, leased, occupied by or under the control of Buyer or a customer of Buyer during the performance of Services ordered hereunder or during delivery or installation of Goods herein contemplated or during the performance of Services otherwise required to be furnished by Seller, Seller agrees that Seller will defend (at Seller’s expense), indemnify and hold harmless Buyer, its officers and employees from any loss, cost, damage, expense or liability by reason of property damage or personal injury of whatsoever nature or kind arising out of or as a result of the performance of such Services and/or delivery and/or installation of Goods, whether arising out of the actions of Seller or of its employees, subcontractors or subsubcontractors; and, Seller agrees that it and its subcontractors will maintain insurance, including, but not limited to, public liability and property damage insurance, in reasonable amounts covering the obligations set forth in this Order, and will maintain proper workmen’s compensation insurance covering all employees engaged in the performance of such Services and/or delivery and/or installation of Goods.

I.   ASSIGNMENT AND SUBCONTRACTING. Seller may not assign this Order, or sublet any part of this Order, without the prior written consent of Buyer. No part of this Order may be subcontracted without the prior written approval of Buyer.

J.   TERMINATION FOR CONVENIENCE OF BUYER. Buyer reserves the right to terminate this Order or any part hereof for its sole convenience. In the event of such termination, Seller shall immediately stop all work hereunder, and shall immediately cause any of its suppliers or subcontractors to cease work. Subject to any terms on the face hereof, Seller shall be paid a reasonable termination charge consisting of a percentage of the Order price reflecting the percentage of the work performed prior to the notice of termination, plus actual direct costs resulting from termination. Seller shall not be paid for any work done after receipt of the notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors which Seller could reasonably have avoided. Seller shall not unreasonably anticipate the requirements of this Order. Buyer’s right to terminate shall be in addition to any other rights or remedies which Buyer may have in law or equity.

K.   TERMINATION FOR CAUSE. Buyer may also terminate this Order or any part hereof for cause in the event of any default by the Seller, or if the Seller fails to comply with any of the terms and conditions of this Purchase Order. Late deliveries of Goods, deliveries of Goods or performance of Services that are defective or which do not conform to this Order, the change in control of Seller through sale, transfer, death or otherwise (including any change to persons or entities under the direction and control of Seller designated to deliver Goods or perform Services hereunder), and failure to provide Buyer, upon request, with adequate assurances of future performance shall also be among the causes which allow Buyer to terminate this Order for cause. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default that gave rise to the termination.

L.   CANCELLATION FOR INSOLVENCY. In the event of any proceedings against Seller, voluntary or involuntary, in bankruptcy or insolvency, or under any provisions of the United States Bankruptcy Code, or for the appointment of a receiver or trustee or an assignee for the benefit of creditors of Seller, Buyer shall be entitled to cancel this Purchase Order forthwith, without liability or loss of anticipated profits.

M.   CONFIDENTIALITY. This Purchase Order, together with all drawings, specifications and samples included therewith or referenced thereby, shall be maintained in confidence by Seller. No information concerning this Purchase Order, including the Goods to be delivered and the Services to be performed hereunder, shall be disclosed by Seller to, or used for the benefit of, any other party. No product first manufactured by Seller for Buyer pursuant to the Purchase Order shall be sold by Seller to any other party without written permission in advance from Buyer.

N.   PAYMENT AND SETOFF. Payment for the Goods or Services ordered hereunder shall not constitute an acceptance thereof, but all items shall be received subject to Buyer’s inspection and rejection. Payment shall be made as stated in this Purchase Order, less customary cash discount, unless otherwise specifically arranged for and stated on this Purchase Order; or in the event that any Good or Service item has not been received, the Buyer reserves the right to withhold payment until such item has been received and checked and does not waive the right to deduct the cash discount. All claims for money due or to become due from Buyer shall be subject to deduction or setoff by the Buyer by reason of any counterclaim arising out of this or any other transaction with Seller. Such setoff shall be in addition to any other rights or remedies available to Buyer at law or equity.

O.   FORCE MAJEURE. Buyer may delay delivery, acceptance or performance occasioned by causes beyond its control. In such event, Seller shall hold Goods and/or delay in performing Services at the direction of Buyer and shall deliver the Goods and perform the Services when the cause affecting the delay has been removed. Buyer shall be responsible only for Seller’s direct additional costs in holding the Goods or delaying performance of this Agreement at Buyer’s request. Seller shall also be excused if delivery or performance is delayed by the occurrence of unforeseen and unforeseeable events that are beyond Seller’s control, provided Seller notifies Buyer of such events as soon as they occur, and gives Buyer its best estimate of revised delivery or performance dates.

P.   CHANGES. Buyer shall have the right at any time to make changes in drawings, designs, specifications, materials, packaging, time and place of delivery or performance, and method of transportation. If any such change causes an increase or decrease in the cost, or the time required for performance, an equitable adjustment shall be made and this Purchase Order shall be modified in writing accordingly.

Q.   WAIVER. Buyer’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege or Buyer’s waiver of any breach hereunder shall not thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.

R.   DELIVERY. Time is of the essence of this Purchase Order, and if delivery of Goods or rendering of Services is not completed by the time promised, Buyer reserves the right without liability, and in addition to its other rights and remedies, to terminate this Order by notice effective when received by Seller as to Goods not yet shipped or Services not yet rendered and to purchase substitute Goods or Services elsewhere and charge Seller with any loss incurred. Buyer further reserves its right, at its sole discretion and in addition to its other rights and remedies, to require the specific performance of Seller’s obligations pursuant to this Purchase Order.

S.   ENTIRE AGREEMENT AND SEVERABILITY. In accepting this Purchase Order or making any Goods deliveries or performing any Services hereunder, Seller agrees to all of the terms and conditions stated on this Purchase Order. This Purchase Order and any written documents that may be attached hereto and/or incorporated by specific reference constitute the entire agreement between the parties and supersede all previous communicates between them, either oral or written. All such previous communications are hereby abrogated and withdrawn. Whenever possible, all terms and conditions of this Purchase Order shall be interpreted so as to be valid under applicable law. If any provision hereof is determined invalid under applicable law, such invalidity shall be limited to such provision without invalidating the remainder of this Purchase Order or other terms or conditions thereof.

T.   LIMITATION ON BUYER’S LIABILITY. In no event shall Buyer be liable for anticipated profits or for incidental or consequential damages. Buyer’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from this Purchase Order or from the performance or breach thereof shall in no case exceed the price allocable to the Goods or Services or unit thereof that gives rise to the claim, less material, labor, and production cost savings of Seller. Buyer shall not be liable for penalties of any description.

U.   CHOICE OF LAW AND FORUM. Any questions, disputes, controversies, or litigation arising either directly or indirectly from this Purchase Order, including, but not limited to, disputes concerning the validity, interpretation, enforcement or effect of this Purchase Order or interpretation concerning the rights and obligations of the parties hereunder, shall be governed (whether in law or in equity) by the laws of the State of Indiana, and the State courts of Indiana shall be the exclusive jurisdiction within which to resolve all such questions, disputes, controversies, or litigation.

DMS 4884924v1