WANNER ENGINEERING, INC.

TERMS AND CONDITIONS OF SALE

1. APPLICABILITY: These terms and conditions are the commercial terms of sale of goods (“Goods”) by Wanner Engineering, Inc. and its subsidiaries and affiliates (collectively, "WEI") and apply to all purchases of Goods from WEI by any purchaser (“Purchaser”) with notice of these terms, however gained, including the use of WEI’s website. These terms and conditions of sale, together with those contained in any sales contract of WEI, constitute the entire agreement (the “Agreement”) between Purchaser and WEI related to the sale of the Goods specified in such sales contract. This Agreement can be accepted only on the exact terms set forth herein and no terms which are in any manner whatsoever additional to or different from those set forth herein shall become a part of or in any way alter the Agreement without the express written consent of WEI. WEI hereby rejects any term or condition of any order, confirmation or other document sent by Purchaser (whether before or after date hereof). Purchaser’s acknowledgment of a sales contract or commencement of performance, including Purchaser’s use of any Goods provided by WEI, will constitute acceptance of the terms and conditions of this Agreement.
2. PRICES: Prices in effect at time of delivery will apply unless otherwise stated in writing. Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Purchaser. For tax purposes, title to the Goods shall pass from WEI to Purchaser upon shipment, whether by common carrier, by WEI’s or Purchaser’s own trucks or otherwise. In addition to the purchase price, Purchaser shall pay the cost of export boxing and preparation, based on 3% of total net price. WEI’s minimum charge for export boxing is $15.00. Purchaser shall be responsible for all such charges, costs and taxes; provided that Purchaser shall not be responsible for any taxes imposed on, or with respect to, WEI's income, revenues, gross receipts, personnel or real or personal property or other assets. The prices specified are in US currency, payable in Minneapolis, Minnesota exchange free of all expenses to WEI for collection charges.
3. TERMS OF PAYMENT:
   1. Unless otherwise stated on the invoice face, WEI’s domestic terms are 1% 10 net 30 days after the date of WEI’s invoice. Pro rata payments shall be made for partial shipments. Boxing, cartage, freight, insurance, handling, labor, rental and similar expenses are net cash upon receipt of invoice. INTEREST WILL BE CHARGED AT THE RATE OF 1 ½% PER MONTH OR THE MAXIMUM LEGAL RATE, WHICHEVER IS LESS, ON PAST DUE ACCOUNTS AFTER 30 DAYS FROM DATE OF INVOICE. Purchaser agrees to pay invoices issued by WEI regardless of disputes relating to other invoices. Purchaser shall reimburse WEI for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees.
   2. For Goods that require export, Purchaser must open a confirmed irrevocable letter of credit at its expense, including bank confirmation charges, through a prime US bank unless otherwise specified. All letters of credit shall (i) be in favor of and acceptable to WEI; (ii) be maintained in sufficient amounts and for the period necessary to meet all payment obligations; and (iii) be irrevocable and issued or confirmed by the bank to WEI within sixty (60) days after acceptance of the order by WEI. Purchaser hereby agrees that pro-rata payments for partial deliveries and payment of any cancellation charges shall be payable under the irrevocable letter of credit upon Purchaser’s receipt of WEI’s invoices and, as applicable, a certificate of delivery, or of delivery into storage with certification of cause therefor.
   3. When in the opinion of WEI the financial condition of the Purchaser renders it necessary, WEI may require cash payment or satisfactory security before shipment.
4. SHIPPING TERMS AND RISK OF LOSS. Unless otherwise agreed in writing, all sales are F.O.B. WEI’s docks at its plant in Minneapolis, Minnesota (under U.C.C. shipping terms). WEI reserves the right to select the carrier. Prior to delivery of the Goods to the carrier at the F.O.B. point, the risk of loss or damage thereto shall be borne WEI. At and after the delivery of goods to the carrier at the F.O.B. point, the risk of loss or damage thereto shall be borne by Purchaser. Purchaser is responsible for the costs of shipping and insurance.
5. EXPORT/IMPORT DOCUMENTATION; COMPLIANCE WITH LAWS: Purchaser shall, at its sole cost and expense, be responsible for obtaining all licenses and permits and for satisfying all formalities as may be required to export the goods outside of the United States and to import them into any other country in accordance with then prevailing laws, rules and regulations (“Export/Import Control Laws”). Purchaser shall at all times (a) conduct its activities in strict compliance with all applicable laws, rules, regulations and governmental orders; (b) pay any and all taxes, fees and other charges required by such laws, rules, regulations and orders; and (c) have and maintain in full force and effect any and all licenses, permits, authorizations, registrations and qualifications from all governmental ministries, authorities and agencies. Purchaser shall not, directly or indirectly, do or fail to do anything that will or could constitute a violation of the Export/Import Control Laws or other laws and regulations of similar purpose, applicable in the United States or any other country having proper jurisdiction. Purchaser is aware that certain laws of the United States, which are applicable to WEI, including but not limited to, the Foreign Corrupt Practices Act, impose penalties on United States persons that participate directly or indirectly in making payments to any foreign government official, foreign political party or candidate, or foreign political office. Purchaser represents, warrants and covenants that it shall not offer or promise to make any payment, in currency or property, to (i) any government official, political party, political candidate or political office or (ii) any third person, firm or entity that in turn will make a payment to any government official, political party, political candidate or political office. Purchaser shall, upon WEI’s request, supply affidavits of compliance with its obligations under this Section.
6. SHIPPING DATES:
   1. The time given for shipment is approximate and is estimated from the date of receipt of the order together with complete manufacturing information and approval of drawings as may be necessary. WEI will use commercially reasonable efforts to ship Goods in accordance with any agreed upon delivery schedules, but WEI shall not be liable for delays in shipping. Additionally, if for any reason WEI is unable to ship complete orders, Purchaser shall accept partial deliveries and WEI shall have reasonable time to deliver in full without any liability to Purchaser.
   2. If any part of the Goods cannot be delivered when ready, Purchaser agrees that WEI may place such Goods in storage at Purchaser’s expense and risk. In such event (i) WEI’s delivery obligations shall be deemed fulfilled and title and all risk of loss or damage shall thereupon pass to Purchaser, (ii) any amounts otherwise payable to WEI upon delivery shall be payable upon presentation of WEI’s invoices and its certification as to such cause, and (iii) all expenses incurred by WEI such as for preparation for and placement into storage, handling, inspection, preservation and insurance, shall be payable by Purchaser upon submission of WEI’s invoices.
7. CHANGES AND DRAWINGS:
   1. WEI reserves the right to change or modify the design and construction of Goods and to substitute other suitable material. WEI is not required to retrofit units in the field because of an engineering change.
   2. If Purchaser for any reason requests changes within the general scope of this Agreement which affect the (i) drawings, designs or specifications of Goods being specifically manufactured for Purchaser; (ii) method of shipment or packing; (iii) place of delivery; and, (iv) delivery schedules, and any such change causes an increase or decrease in the cost of, or the time required for, performance of this Agreement, an equitable adjustment shall be made in the contract price or delivery schedule or both; provided, that WEI will make commercially reasonable efforts to consider change requests but shall not be obligated to accommodate all changes. Changes in this Agreement shall only be considered if they are directed in writing to WEI by Purchaser’s Purchasing Department and accepted in writing by WEI. On receipt of such written directions, WEI shall within 30 days notify Purchaser of its claim for adjustment.
8. SUSPENSION: If, for any reason whatsoever, Purchaser suspends an order or deliveries thereunder for more than thirty (30) days, Purchaser shall pay WEI (a) for the Goods which have been completed at the time of such interruption, the full price set forth in the sales contract or as otherwise agreed upon by the parties, and (b) for the Goods which have not been completed or have not been started, the costs to WEI.
9. CANCELLATION: Purchaser may cancel his order only upon written notice and payment to WEI of WEI’s cancellation charges. Equipment or parts of special design, size or materials are normally not returnable. Written permission must be secured before returning standard equipment or parts, and these returns will be subject to a restocking charge as determined by WEI. No rubber products may be returned for credit after six (6) months from date of delivery.
10. LIMITED WARRANTY; REMEDY; DISCLAIMER:
    1. WEI warrants that for a period of one (1) year from the date of purchase, equipment supplied or manufactured by WEI shall be free of defects in materials and workmanship under normal use and service, and provided the equipment is installed, operated and maintained in accordance with instructions supplied by WEI. Notwithstanding anything to the contrary, this limited warranty does not cover (i) normal wear and/or damage caused by or related to abrasion, corrosion, abuse, negligence, accident, faulty installation, or tampering which impairs normal operation of the equipment; (ii) electric motors (if applicable) not manufactured by WEI; or (iii) transportation costs. Warranties, if any, on electric motors (if applicable) not manufactured by WEI are assigned to the Purchaser by WEI (without recourse) at time of delivery.
    2. Purchaser’s sole and exclusive remedy and WEI’s sole liability, whether based upon warranty, contract or tort, including negligence, is limited to WEI’s repair or replacement of the defective part, at WEI’s sole option. Any claim regarding breach of warranty must be received by WEI before the expiration of the warranty period and by written notice from Purchaser of such defect within thirty (30) days from the discovery thereof. WEI requires the return to a designated WEI location, of the defective part, transportation prepaid, to establish Purchaser’s claim. A return goods authorization must be received prior to the return of the defective part. No allowance will be made for repairs undertaken without WEI’s written consent or approval.
    3. WEI’S WARRANTY OBLIGATIONS AND PURCHASER’S REMEDIES THEREUNDER ARE SOLELY AND EXCLUSIVELY AS STATED HEREIN. THERE ARE NO OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OF NON-INFRINGEMENT, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE OR ANY OTHER MATTER. Any descriptions of the equipment, drawings, specifications, and any samples, models, bulletins, or similar material, used in connection with this sale are for the sole purpose of identifying the equipment and are not to be construed as an express warranty that the equipment will conform to such description. Any field advisory or installation support is advisory only.
11. INTELLECTUAL PROPERTY: All specifications, documentation and any other intellectual property involved in the manufacturing the Goods is the property of WEI, except to the extent Purchaser has supplied specifications, drawings or other intellectual property to WEI. WEI assumes no liability whatsoever with respect to Purchaser’s intellectual property.
12. LIMITATION OF LIABILITY: WEI SHALL NOT HAVE ANY LIABILITY TO PURCHASER OR ANY OTHER PERSON OR ENTITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES OF ANY DESCRIPTION, INCLUDING WITHOUT LIMITATION, ENVIRONMENTAL DAMAGE CLAIMS, LOSS OF REVENUE OR LOST PROFITS, WHETHER ARISING OUT OF WARRANTY (INCLUDING ANY IMPLIED WARRANTIES), BREACH OF CONTRACT, STRICT LIABILITY, NEGLIGENCE, OTHER TORT, OR OTHERWISE, AND REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER WEI HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL WEI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE GOODS SOLD TO PURCHASER EXCEED THE TOTAL PURCHASE PRICE PAID BY PURCHASER FOR THE EQUIPMENT OR PART THEREOF GIVING RISE TO THE CLAIM. No action may be brought by Purchaser against WEI after one (1) year from the date of delivery of the Goods, and Purchaser acknowledges and agrees that this provision shall be grounds for dismissal of any suit or claim asserted by Purchaser after such time.
13. FORCE MAJEURE. WEI will not be liable to Purchaser for any delay or failure of delivery of any Goods or other nonperformance caused in whole or part by any contingency or event beyond WEI’s reasonable control, including, without limitation, acts of any government, war, riots, acts of God, machinery breakage, or any shortage of or inability to secure labor, labor strikes, transportation facilities, fuel, energy, raw materials, supplies, or machinery at reasonable prices or from regular sources. In the event of the occurrence of any of the foregoing, WEI may distribute its available goods and material among its purchasers on such a basis as WEI deems fair and equitable, without liability to Purchaser.
14. CONFIDENTIALITY. All specifications, documentation, pricing information and any other confidential or proprietary information (“Confidential Information”) of WEI are the property of WEI. Confidential Information may be provided solely for the purpose of facilitating orders and on the express condition that Confidential Information of WEI shall not be disclosed to others nor used for any purpose by Purchaser other than in connection with transacting business with WEI pursuant to such sales contracts, and this Agreement, as applicable. Purchaser shall promptly return to WEI all such Confidential Information upon WEI’s written request. Purchaser’s obligations under this paragraph shall survive the cancellation, termination or completion of any order or this Agreement.
15. INSOLVENCY/CHANGES OF OWNERSHIP. If Purchaser (a) becomes insolvent, (b) undergoes a change in ownership, (c) files or has filed against it a bankruptcy proceeding, (d) has a receiver appointed over it or all or any of its assets, or (e) takes any other action that WEI determines in its sole discretion adversely impacts the conditions under which credit was extended, then WEI will have the right to terminate all orders and contracts by notifying Purchaser to that effect, without prejudice to WEI’s right to payment of the price of goods that are shipped and any damages WEI might suffer.
16. ASSIGNMENT. Purchaser may not assign any sales contract or this Agreement or any of its rights or obligations hereunder or thereunder to any third party without WEI’s prior written consent. For purposes of this provision, a merger, stock sale or other transfer by operation of law shall be deemed an “assignment” for which consent is required hereunder.
17. GOVERNING LAW AND FORUM. This Contract will be interpreted according to the laws of the State of Minnesota. The parties expressly disclaim the applicability of the United Nations Convention on Contracts for the International Sale of Goods. Purchaser hereby irrevocably and unconditionally consents to submit to the exclusive jurisdiction of the courts of the State of Minnesota and of the United States of America located in Minnesota for any proceedings relating to this Agreement (and agrees not to commence any proceeding relating thereto except in such courts). Purchaser hereby irrevocably and unconditionally waives any objection to the laying of venue, and agrees not to claim that any proceeding brought in any such court has been brought in an inconvenient forum.
18. SEVERABILITY. In the event a provision of this Contract is determined to be invalid, illegal or unenforceable, it will not affect the validity, legality or enforceability of any other provision of the Contract and the parties agree that the remaining provisions will be deemed to be in full force and effect.
19. SURVIVAL. The provisions of this Agreement which, by their nature, would continue beyond the termination or expiration of this Agreement will survive the termination or expiration of this Agreement.