Terms and Conditions

TERMS AND CONDITIONS OF PURCHASE

1. The Agreement (“Agreement”) between Truck Bodies & Equipment International, Inc. and/or its affiliates (the “Buyer”) and its vendor (the “Seller”) with respect to the purchase of goods (the “Goods”) or performance of work or services (the “Services”) shall consist of the terms appearing herein together with the purchase order (the “Order”) to which these terms and conditions are incorporated, attached or appended. BUYER SHALL NOT BE BOUND BY ANY ADDITIONAL OR DIFFERENT TERMS APPEARING IN SELLER’S QUOTATION, PROPOSAL, ACKNOWLEDGMENT OR ANY OTHER FORMS OR COMMUNICATIONS FROM SELLER AND NO REFERENCE THEREIN SHALL BE DEEMED TO INCORPORATE ANY SUCH ADDITIONAL OR DIFFERENT TERMS UNLESS SUCH TERMS ARE MUTUALLY AGREED TO IN WRITING AND SIGNED BY BUYER AND SELLER. Acceptance of the Order will occur upon Seller executing and returning to Buyer the acknowledgement copy hereof or in lieu thereof, by Seller delivering any of the Goods or performing any of the Services herein ordered, whichever shall first occur.
2. Prices shown on the Order shall not be subject to increase without the written consent of Buyer. If prices are not shown for any of the Goods or Services then prices to be charged by Seller shall not be higher than prices last quoted or charged to Buyer for the same or commercially similar Goods or Services, or at prevailing market price, whichever is lower, unless otherwise agreed upon in writing. The period of any cash discount shown on the Order shall extend from the date of receipt of the invoice by Buyer or from the date of receipt by Buyer of any correct invoice, whichever is later. Prices include all costs and charges for crating, wrapping and packing and all other expenses of Seller’s performance of the Agreement except as otherwise shown on the Order.
3. PRICE WARRANTY. Seller warrants that the prices for the Goods or Services sold to Buyer hereunder are not less favorable than those currently extended to any other customer for the same or similar Goods or Services in similar quantities. In the event Seller reduces its price for such Goods or Services during the term of the Order, Seller agrees to reduce the prices hereof correspondingly. Seller warrants that prices shown on the Order are complete, and no additional charges of any type shall be added without Buyer’s express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, customs duties, taxes, storage, insurance, boxing, crating.
4. Unless prices are expressly shown to be with taxes on the Order, all taxes shall remain the responsibility of Seller and Seller shall indemnify and hold Buyer harmless from and against the assessment or imposition of any excise, use or other tax (however designated) upon the production, sale or delivery of Goods shipped hereunder or upon the performance of Services rendered hereunder, unless such assessments or impositions are forbidden by law to be borne by Seller.
5. Time is of the essence of this Agreement. Seller shall not deliver any of the Goods or perform any of the Services except at the time or dates indicated on the Order. No change in the scheduled delivery date or performance will be permitted without Buyer’s prior written consent. No acceptance of Goods or Services after the scheduled delivery date will waive Buyer’s rights with respect to such late delivery, nor shall it be deemed a waiver of future compliance with the terms hereof. In the absence of designated times for delivery or performance, Seller shall deliver or perform in accordance with any directions subsequently given by Buyer or otherwise as expeditiously as possible. Failure of Seller to deliver or perform in accordance with the times required therefore, as herein provided, shall constitute a breach of the Agreement. At the election of Buyer, Buyer may notify Seller that the delay will result in damages and deduct the damages from the sale price upon acceptance of the Goods or Services.
6. In the event that Seller shall breach any of its obligations hereunder, Buyer may purchase substitute Goods or Services, and Seller shall pay to Buyer any difference in the price of such substitute Goods or Services and the prices contracted for hereunder, together with expenses incurred by Buyer in obtaining such cover. The remedy provided in this paragraph shall be in addition to, and not In lieu of, any other remedies which Buyer may have under the Agreement or under applicable law. Acceptance by Buyer of any payment from Seller of amounts herein provided shall not waive Buyer’s right to recover against Seller any other amounts, damages, or losses. Buyer is not required to accept replacements or substitutes or permit cure of defects in any Goods or Services rightfully rejected, and Seller shall remain liable for any actual, consequential or incidental damages relating to the breach.
7. Unless otherwise agreed in writing by Buyer, deliveries of Goods must be in the exact quantities stated on Buyer’s order. If Seller ships or delivers a quantity of Goods greater than or less than the quantity prescribed for each shipment, Buyer shall have the right at its election to reject the shipment in its entirely or to accept any part thereof and reject the remainder or to accept the entire shipment. In no event shall Buyer be responsible for any additional shipping or transportation charges resulting from shipments by Seller in other than specified quantities or from partial shipments.
8. Rejected Goods may, at the election of Buyer, be returned to Seller at Seller’s expense and risk or be held at Seller’s risk for Seller’s instructions. Acceptance of a portion of the Goods shall not preclude subsequent rejection of the remainder in whole or in part. Any inspection of the Goods or Services by Buyer shall not constitute a waiver or acceptance as to any defects therein or breaches by Seller discovered by Buyer pursuant to such inspection.
9. In addition to Seller’s customary warranties and any other warranties implied in fact or by law, Seller warrants to the Buyer and to any third party ultimately using any item. whether such third party is a customer of Buyer or not, unless otherwise agreed in writing and signed by the parties, that the Goods delivered and Services performed shall conform to all descriptions and specifications and to samples furnished by the Buyer and shall be of merchantable quality, free of defects, latent or patent, in design, material and workmanship, and fit for its particular purpose or purposes. SELLER’S WARRANTY SHALL EXTEND FOR A PERIOD OF 12 MONTHS AFTER THE GOODS ARE DELIVERED AND ACCEPTED BY BUYER, AND APPLIED TO ITS INTENDED USE AND PURPOSE. If Buyer incorporates Goods into a product of Buyer to be delivered to its customer, Seller’s obligation under this provision shall be for the benefit of Buyer’s customer and shall extend for one year after application of the item to its intended use. Unless otherwise agreed in writing by Buyer, Seller may not disclaim any warranties provided to Buyer by applicable law or statute.
10. DEFECTIVE GOODS. If any of the Goods fail to meet the warranties contained in paragraph 9, Seller, upon notice from Buyer, shall promptly correct or replace the same with conforming Goods at Seller’s expense. If Seller fails to do so, Buyer may cancel the Order as to all such Goods and in addition, may cancel the then remaining balance of the Order. After notice to Seller, all such Goods will be held at Seller’s risk and all transportation charges both to and from the original destination, shall be paid by Seller. Any payment for such Goods shall be refunded by Seller unless Seller promptly corrects or replaces the same al its expense.
11. FORCE MAJEURE. Buyer may delay delivery or acceptance occasioned by causes beyond its control. Seller shall hold such goods at the direction of the Buyer and shall deliver them 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. Causes beyond Buyer’s control shall include, but are not limited to civil commotion or riot, natural disaster, lightning, fire, earthquake, storm, flood, drought, severe weather conditions, other acts of God, disease, health epidemic or pandemic, accident, explosion, power surges, industrial action, boycotts, lockouts, strikes or other labor trouble or concerted acts of workmen, delays in transportation or delivery, shortages or inability to secure raw materials, fuel, power, machinery or other equipment necessary for production, currency restriction, embargo, acts of civil or military authority, acts of the public enemy, acts of war, action or inaction by a government (including a change in law), material changes in import or export duties, terrorism or threats of terrorism
12. Seller shall defend, indemnify, save and hold Buyer harmless from and against all damages, claims or liabilities (including attorneys’ fees) arising out of or resulting in any way from any defect in the Goods or Services purchased hereunder, or from any act or omission of Seller, its agents, employees or subcontractors in breach of this Agreement. This indemnification shall be in addition to the warranty obligations of Seller.
13. RISK OF LOSS. Regardless of shipping terms, Seller agrees to bear all risk of loss, injury or destruction of the Goods and materials ordered herein that occur prior to acceptance by Buyer. No such loss, injury or destruction shall release Seller from its obligations hereunder.
14. SHIPPING COSTS. All Goods are to be shipped freight prepaid, F.O.B destination, unless otherwise stated. Where Buyer has authorized in writing, Goods may be shipped F.O.B. shipping point. Seller shall prepay all shipping charges, route the Goods by the least expensive common carrier, or the carrier specified, and list all shipping charges as a separate item or items on Seller’s invoice.
15. COMPLIANCE WITH LAW. Seller warrants that all applicable laws, rules and regulations of governmental authorities shall be complied with, including any applicable Executive Order mandating use of American materials covering the production, sale and delivery of Goods and the performance of Services under this Agreement.
16. Affirmative Action. The Parties hereby incorporate the following:  This contractor and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. This contractor and subcontractor shall also abide by 29 CFR Part 471, Appendix A to Subpart A.
17. Buyer may at any time cancel this Agreement with respect to any Goods not then delivered or Services not then performed. If such cancellation shall be for other than breach of the Agreement by Seller, Buyer shall pay to Seller cancellation charges as may be agreed between Buyer and Seller, but not to exceed the lesser of the purchase price applicable to such cancelled Goods or Services or the labor, material and manufacturing overhead costs actually incurred by Seller through the date of cancellation, in each case, however, less the reasonable resale or salvage value of materials and work in progress. Notwithstanding the foregoing, Buyer shall not be liable for cancellation charges if the Goods are standard or stock items of the Seller. Buyer may also issue additional instructions and make changes in connection with the Agreement in any one or more of the following: (i) designs or specifications; (ii) method of shipment or packing; and (iii) time and destination of deliveries. If any such change results in an increase or decrease in the cost of performance by Seller, the parties shall agree in writing upon an equitable adjustment to the purchase price. Seller shall perform in accordance with the change pending the assertion of any such claim and pending agreement upon any equitable adjustment.
18. PROPERTY FURNISHED TO SELLER BY BUYER INCLUDING DIES AND MOLDS. All dies, molds, patterns, jigs, fixtures, materials, supplies and any other property furnished to Seller by Buyer or paid for by Buyer for use in the performance of the Agreement shall (i) be and remain the property of Buyer; (ii) be subject to removal upon Buyer’s instructions; (iii) be used only in filling orders from Buyer; (iv) be held at Seller’s risk; and (v) upon recall by Buyer, be packaged at Seller’s expense for shipment to Buyer in accordance with Buyer’s instructions and kept insured by Seller at Seller’s expense to the extent of full insurable value. Evidence of insurance shall be furnished to Buyer on request. Unless Buyer and Seller otherwise agree in a writing signed by both parties, any costs expended by Seller for dies, molds, or forms made in connection with this Agreement are included in the payments hereunder by Buyer and the cost thereof may not be otherwise recovered by Seller.
19. All descriptions and specifications, as well as samples, drawings, flow charts, data reports, photos, artwork, software and the like furnished to Seller by Buyer shall be and remain the property of Buyer. Seller shall consider all such information to be confidential and shall not disclose any such information to any other party or use such information for any purpose other than performing this Agreement, UNLESS Seller obtains the written permission from Buyer to do so. Seller agrees to immediately return such items to Buyer at Seller’s expense upon the request of Buyer.
20. Seller warrants that the Goods shall not infringe on any United States or foreign letters patent of any other proprietary information or know-how. Seller shall indemnify and hold harmless Buyer and its customers and users of its products from and against all losses, liabilities, damages, costs and expenses (including attorneys’ fees) incurred or arising in connection with any such infringement or claims thereof. After notice, Seller shall appear at and defend, at its own expense by counsel acceptable to Buyer, any suits based on any infringement or claim thereof. This warranty shall not apply to designs or specifications furnished by Buyer.
21. SERVICES ON BUYER’S PREMISES. If the Services are to be Performed on Buyer’s premises, Seller shall indemnify and hold Buyer harmless from and against all losses, liabilities, damages, costs and expenses (including attorneys’ fees and costs) caused by or arising out of the performance thereof. Seller shall maintain public liability, property damage, and worker’s compensation insurance with liability limits and other terms and conditions reasonably satisfactory to Buyer, naming Buyer as an additional insured thereunder. Upon Buyer’s request, Seller shall provide Buyer with copies of policies or certificates evidencing such insurance. Buyer shall have no obligation to pay for any of the Services until waivers of all applicable mechanics and material man liens have been obtained and delivered. This provision shall apply equally to any subcontractors or other related parties of Seller.
22. SUPPLIER CODE OF CONDUCT. Seller agrees that it its familiar with, and will comply with, Federal Signal Corporation’s “Supplier Code of Conduct” located at the following URL: (https://6860826.fs1.hubspotusercontent-na1.net/hubfs/6860826/supplier_code_of_conduct_05_31_2022.pdf)
23. This Agreement shall be binding upon and inure to the benefit of Buyer and Seller and their respective successors and assigns. Seller shall not assign the Agreement or any interest herein without Buyer’s prior written consent.
24. 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 be deemed as consent to subsequent non-performance, acquiescence, or thereafter waive any other terms, conditions, or privileges, whether of the same or similar type.
25. If any term, clause or provision contained herein or in the Order is declared or held invalid by a court of competent jurisdiction, such declaration or holding shall not affect the validity of any other term, clause or provision contained herein or therein.
26. LIMITATION ON BUYER’S LIABILITY. STATUTE OF LIMITATIONS. In no event shall Buyer be liable for anticipated profits, loss of business opportunity, or for incidental or consequential damages. Buyer’s liability on any claim of any kind for any loss or damage arising out of, in connection with, or resulting from this Agreement or from the performance or breach hereof shall, in no case, exceed the price allocable to the Goods or Services or unit thereof which gives rise to the claim. Buyer shall not be liable for penalties of any kind or description. ANY ACTION RESULTING FROM ANY BREACH ON THE PART OF BUYER AS TO THE GOODS OR SERVICES DELIVERED HEREUNDER MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION HAS ACCRUED.
27. GOVERNING LAW. The laws of the State from which Buyer issued the Order shall govern this Agreement.
28. CLAIMS OR CONTROVERSIES. Any claim arising out of this Agreement shall be litigated exclusively in the State and Federal Courts of the State from which Buyer issued the Order, which Buyer and Seller agree is the most convenient forum for such purposes. Seller consents to service of process and submits to such jurisdiction. Seller hereby specifically waives any right to transfer or change the venue of any litigation brought in accordance with this paragraph.
29. D.S AND CHEMICAL LABELING INCOMING. It is Seller’s obligation under the O.S.H.A Hazard Communication Standard to: (a) insure proper labeling on all containers Buyer receives; and (b) supply Buyer with updated Safety Data Sheets. This requirement is a condition of all purchase orders Buyer issues. Buyer will consider Seller’s failure to comply with this requirement as a basis for rejection of the shipment. All chemicals must comply with the Globally Harmonized System of Classification and Labeling of Chemicals (GHS).

TERMS AND CONDITIONS OF SALE

CUSTOMER AND WESTERN TRUCK BODY MFG. (THE "SELLER"), AGREE THAT SALES OF SELLER’S PRODUCTS (THE "PRODUCTS") ARE MADE ONLY UNDER THESE TERMS AND CONDITIONS, AND THAT SELLER SHALL NOT BE BOUND BY CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS. ACCEPTANCE OF CUSTOMER'S ORDER IS CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THESE TERMS. CUSTOMER SHALL INDICATE ITS AGREEMENT TO BE BOUND BY THESE TERMS BY WRITTEN ACKNOWLEDGEMENT, BY IMPLICATION, OR BY ACCEPTANCE OF DELIVERY OF THE PRODUCTS.

NOTICE TO SELLER’S DEALERS AND DISTRIBUTORS:

EXCEPT AS SET FORTH IN SECTION 20, IF THE CUSTOMER IS A DEALER OR DISTRIBUTOR OF SELLER’S PRODUCTS AND IS A PARTY TO A DEALER OR DISTRIBUTOR AGREEMENT THAT INCLUDES TERMS AND CONDITIONS OF SALE THAT WOULD NORMALLY APPLY TO THE TRANSACTION UNDER WHICH THESE TERMS AND CONDITIONS WERE ISSUED, THEN THESE TERMS AND CONDITIONS SHALL NOT MODIFY, SUPERSEDE OR OTHERWISE AFFECT SUCH DEALER OR DISTRIBUTOR AGREEMENT AND THE TERMS AND CONDITIONS OF SALE INCLUDED WITHIN SUCH DEALER OR DISTRIBUTORSHIP AGREEMENT SHALL CONTROL.

1. Title and Risk of Loss.

A. If the Products are subject to state vehicle title laws, title and risk of loss or damage will pass to Customer on the first of the following to occur: (i) delivery of the Products to Customer; (ii) delivery of the Products to Customer' s authorized agent; or (iii) delivery of the Products to any common carrier for shipment. The manufacturer's statement of origin ("MSO") shall be delivered from Seller to Customer upon Seller's receipt of payment in full.

B. If the Products are not subject to a state vehicle title law, title and risk of loss or damage will pass to Customer on the first to occur of the following: (i) delivery of the Products to Customer; (ii) delivery of the Products to Customer's authorized agent; or (iii) delivery of the Products to any common carrier for shipment.

2. Taxes. Product prices are exclusive of, and Customer shall pay, applicable sales, use, service, value added       or like taxes, unless Customer has provided Seller with an appropriate exemption certificate for the               delivery destination acceptable to the applicable taxing authorities.

3. Prices and Payment. All quotations shall expire thirty (30) days from date of issuance, unless otherwise         set forth on the quotation or agreed in writing. Quoted prices include packing and packaging.              Customer shall make payment in full prior to or upon delivery by cashier's check, or ACH transfer, unless Seller approves Customer for credit terms. If Seller approves Customer's credit application, payment shall be due no later than 30 days from the date of Seller's invoice. All sums not paid when due shall accrue interest daily at the lesser of a monthly rate of 1.0% or the highest rate permissible by law on the unpaid balance until paid in full. Unless otherwise agreed in writing by Seller, payments shall be made in U.S. Dollars. In the event of any order for several units, each unit(s) will be invoiced when shipped.

4. Orders. All orders are subject to acceptance by Seller, which shall be indicated in writing.

5. Delivery. Seller shall deliver the Products F.O.B. Seller factory and, if the Products are sold to a Customer outside the United States, shall clear the Products for export destined outside the United States. Customer shall pay all freight charges, applicable import duties, and other necessary fees and shall bear the risks of carrying out customs formalities and clearance. Orders are entered as close as possible to the Customer's requested shipment date, if any. Shipment dates are scheduled after acceptance of orders and receipt of necessary documents. Claims for shipment shortage shall be deemed waived unless presented to Seller in writing within forty-five (45) days of shipment.

6. Non-Conforming Delivery. Customer shall notify Seller of any visible defects, quantity shortages or incorrect product shipments in writing within five (5) working days of receipt by Customer. Failure to notify Seller within such time period shall be deemed an unqualified waiver of Customer’s right to subsequently raise such objections.

7. Limited Warranty.

IF THE PRODUCTS PURCHASED ARE SOLD PURSUANT TO A WARRANTY POLICY SPECIFIC TO SUCH PRODUCTS, THEN THE POLICY SET FORTH IN SECTIONS 7-8 SHALL NOT BE EFFECTIVE AS TO SUCH PRODUCTS AND THE SPECIFIC WARRANTY POLICY SHALL CONTROL.

Subject to the foregoing paragraph, Seller’s Products are warranted against defects in materials and workmanship and shall conform to Seller’s published specifications or other specifications accepted in writing by Seller for one year from the date Seller ships the Products to Customer ("Delivery Date").

8. Customer Remedies. Seller's sole obligation (and Customer's sole remedy) with respect to the foregoing Limited Warranty shall be to, at its option, return the fees paid or repair/replace any defective Products, provided that Seller receives written notice of such defects during the applicable warranty period. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action.

9. Return/Cancellation/Change Policy. Customer may return unwanted Products within thirty (30) days of the Delivery Date, provided such Products are in new, unused and undamaged condition and are resalable as new products without modification or repackaging. Customer shall pay a fifteen percent (15%) restocking charge on any unwanted Products returned to Seller. No returns will be accepted after the thirty (30) day period has expired. Where custom Products or services are involved, Customer shall be responsible for all related work in progress; however, Seller shall take reasonable steps to mitigate damages immediately upon receipt of a written cancellation notice from Customer. A Return-Material Authorization number must be obtained from Seller for return of any Products. Seller may terminate any order if any representations made by Customer to Seller are false or misleading. Changes to orders shall not be binding upon nor be put into effect by Seller unless confirmed in writing by Seller's appropriate representative.

10. NO OTHER WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, AND NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT

OR ANY OTHER WARRANTIES THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING. SELLER DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. SELLER EXPRESSLY DISCLAIMS ANY WARRANTIES NOT STATED HEREIN.

11. No Liability for Consequential Damages. The entire liability of Seller and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) is set forth above. To the maximum extent permitted by applicable law, in no event shall Seller and its licensors, distributors, and suppliers (including its and their directors, officers, employees, and agents) be liable for any damages, including, but not limited to, any special, direct, indirect, incidental, exemplary, or consequential damages, expenses, lost profits, lost savings, business interruption, lost business information, or any other damages arising out of the use or inability to use the Products, even if Seller or its licensors, distributors, and suppliers has been advised of the possibility of such damages. Customer acknowledges that the applicable purchase price or license fee for the Products reflects this allocation of risk. Because some states/jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, the above limitation may not apply. If the foregoing limitation of liability is not enforceable because an Seller product sold or licensed to Customer is determined by a court of competent jurisdiction in a final, non-appealable judgment to be defective and to have directly caused bodily injury, death, or property damage, in no event shall Seller's liability for property damage exceed the greater of $50,000 or fees paid for the specific product that caused such damage.

12. Force Majeure. Seller shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to acts of governments, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials. Seller's estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event Seller is unable to perform in whole or in part because of any excusable failure to perform, Seller may cancel orders without liability to Customer.

13. Limited Indemnity Against Infringement. Seller shall, at its own expense, defend any litigation resulting from sales of the Products to the extent that such litigation alleges that the Products or any part thereof infringes any United States patent, copyright, or trademark, provided that such claim does not arise from the use of the Products in combination with equipment or devices not made by Seller or from modification of the Products, and further provided that Customer notifies Seller immediately upon its obtaining notice of such impending claim and cooperates fully with Seller in preparing a defense. If Customer provides to Seller the authority, assistance, and information Seller needs to defend or settle such claim, Seller shall pay any final award of damages in such suit and any expense Customer incurs at Seller's written request, but Seller shall not be liable for a settlement made without its prior written consent. If the Products are held to be infringing and the use thereof is enjoined, Seller shall, at its option, either (i) procure for the Customer the right to use the Products, (ii) replace the Products with others which do not constitute infringement, or (iii) remove the infringing Products and refund the payment(s) made therefor by Customer. The foregoing states the Customer's sole remedy for, and Seller's entire liability and responsibility for, infringement of any patent, trademark, or copyright relating to the Products provided hereunder. THIS LIMITED INDEMNITY IS IN LIEU OF ANY OTHER STATUTORY OR IMPLIED WARRANTY AGAINST INFRINGEMENT.

14. Acknowledgment/Governing Law. Customer acknowledges reading these Terms and Conditions, under-stands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all orders accepted by Seller in the United States, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the State in which Seller's factory is located without regard to principles of conflicts of laws. With respect to all orders accepted by Seller outside the United States, disputes arising in connection with these Terms and Conditions of Sale shall be governed by the laws of the country and locality in which Seller accepts the order without regard to principles of conflicts of laws.

15. Intellectual Property Rights. All drawings, data, designs, tooling, equipment, procedures, engineering changes, inventions, trade secrets, copyrights , mask works, source code, object code, patents, patent applications, know-how, computer and/or Product software and all parts thereof, trademarks and all other information , technical or otherwise which was developed, made or supplied by or for Seller in the production of any Product sold hereunder will be and remain the sole property of Seller (or its licensors, if any). Customer agrees not to reverse engineer any Products purchased hereunder.

16. Export Regulations. Customer agrees to comply fully with all laws and regulations concerning the export of Products from the United States.

17. Assignment and Subcontracting. Seller may assign its rights and obligations by giving Customer written notice thereof but without being obligated to obtain Customer's consent prior thereto. In the event if an assignment, Seller shall be discharged of any liability pursuant to those purchase orders which have been assigned or delegated. Customer may not assign its rights nor delegate its obligations under any or all of its purchase orders unless Seller’s written consent is obtained prior thereto and any such assignment or delegation without such consent shall be void.

18. Waiver. No waiver will be valid unless in writing, signed by an authorized representative of Seller and no waiver granted will release Customer from subsequent strict compliance herewith.

19. Severability; Headings. Any provision hereunder found to be legally unenforceable shall be deemed deleted and replaced with a legally enforceable provision having the closest possible intent. All other provisions shall remain in full force and effect. Headings and subheadings are for convenience only and shall not be construed to limit the applicability of individual provisions or subprovisions.

20. Notwithstanding anything to the contrary herein, Seller reserves the right to increase the quoted order price set forth in this order acknowledgement at any time before delivery to Customer to reflect any increase in Seller’s costs to manufacture or deliver the ordered product due to any factor beyond the reasonable control of Seller. Seller shall provide Customer with prompt electronic notice of any such price increase. Customer shall have five days from receipt of such notice to cancel its order, absent which customer shall be deemed to have consented to the price increase.

1. Seller reserves the right to increase the quoted order price set forth in this order acknowledgment at any time before delivery to Buyer to reflect any increase in Seller’s costs to manufacture or deliver the ordered product due to any factor beyond the reasonable control of Seller. Seller shall provide Buyer with prompt electronic notice of any such price increase. Buyer shall have five days from receipt of such notice to cancel its order, absent which Buyer shall be deemed to have consented to the price increase.