ADDITIONAL TERMS AND CONDITIONS | Amada America Inc.

In consideration of the covenants and conditions set forth herein, the parties agree as follows:
  1. ACCEPTANCE AMADA AMERICA, INC. acknowledges with thanks receipt of the Purchasers order with AMADA AMERICA, INC.'s quotation and hereby accepts such order subject to the terms and conditions set forth in AMADA AMERICA, INC.'s quotation. The resulting contract shall in all respects be governed and interpreted according to the laws of the State of California, provided, however that such choice of law shall not prejudice an action for relief under the laws governing provisional remedies in the State in which the machinery is situated. Any terms and conditions of the Purchaser's order which are in any way in conflict with, inconsistent with, or in addition to the terms and conditions set forth in AMADA AMERICA, INC.'s quotation shall not be binding on AMADA AMERICA, INC. and shall not be applicable to this contact unless expressly agreed to in writing by AMADA AMERICA, INC.

  2. PRICES Prices quoted are FOB point of shipment. Such prices are firm upon AMADA AMERICA, INC.'s acceptance of the Purchaser's purchase order for shipment within six months of the date of such order as evidenced by this acknowledgement. Items which are quoted for delivery beyond six months shall be subject to adjustment to prices applying as of the respective date or dates of shipment.

  3. DELIVERIES Delivery dates are approximate. AMADA AMERICA, INC. will have no liability for loss or damage resulting from a delay in scheduled deliveries caused by war, riot, strike labor disputes, fire, accident, delay in receipt or shortage of parts or materials, natural disaster or any other contingency whatsoever (whether of the same class of those enumerated or otherwise) beyond its reasonable control.
    The Purchaser will assume all freight and rigging costs and risk of loss or delay in transit. Purchaser shall be responsible for making all transit arrangements. In the event AMADA AMERICA, INC., as an accommodation, undertakes to make such arrangements, it shall be free of any liability in connection therewith.
    AMADA AMERICA, INC.'s responsibility ceases upon delivery to the carrier. Risk of loss, injury, or destruction of properly shall be that of the Purchaser and such loss, injury or destruction shall not release Purchaser from payment of the purchase price. Purchaser shall not accept delivery of goods that are not in accordance with the bill of lading or express receipt without proper notification to the carrier, and shall promptly make claim against such carrier for any shortage, damage, or discrepancy of the shipment.
    When partial shipments are made, each such shipment shall be invoiced and paid for separately in accordance with the terms of the original agreement.

  4. LIMITED WARRANTIES AMADA AMERICA, INC. warrants the equipment, components and systems sold pursuant to this invoice, to be free of defects in material and labor for the following periods:

    Equipment 12 months
    This warranty period shall run from the date of delivery to Purchaser or if AMADA AMERICA, INC. is responsible for installation, from the date installation is completed. If within the warranty period any equipment, components, or systems prove to be defective, then at AMADA AMERICA, INC.'s option, the defective equipment, component or system shall either be replaced or repaired. This warranty shall be conditional upon AMADA AMERICA, INC. receiving written notice of any defect within fifteen (15) calendar days after its discovery by Purchaser. Upon receipt of Purchaser's notice of a defect, AMADA AMERICA, INC. shall advise the customer whether it wishes the detective equipment, components, or systems returned to AMADA AMERICA, INC. for repair/replacement (FOB its factory) or whether AMADA AMERICA, INC. will perform such repairs at the Purchaser's location.
    Be advised any repairs, alterations, or warranty service provided by parties other than AMADA AMERICA, INC. or its authorized representative, may void this warranty. This warranty shall not apply to equipment, components and systems which are subject to normal equipment wearing and use or which are damaged by accident, negligence, or improper equipment operation by Purchaser.

    Tooling:
    AMADA AMERICA, INC. warrants any tooling supplied pursuant to this invoice to be free from defects in material and workmanship at the time of delivery. Upon notice within five (5) calendar days of delivery, AMADA AMERICA, INC. will repair or replace at its expense said defective tooling.

  5. LIMITATION OF WARRANTIES EXCEPT AS SET FORTH HEREIN, AMADA AMERICA, INC. MAKES NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, AND HEREBY EXPRESSLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS. IN NO EVENT SHALL AMADA AMERICA, INC.'S LIABILITY EXCEED THE STATED PURCHASE PRICE OF THE EQUIPMENT.

  6. TAXES Sales, use, excise, properly or other taxes or duties that may be levied on this transaction by local, state, federal, or foreign governments are not included in the quoted prices. Any such taxes or duties which AMADA AMERICA, INC. may be obligated to pay on this equipment shall be for the account of the Purchaser, and Purchaser shall promptly reimburse AMADA AMERICA, INC. therefore.

  7. LIQUIDATED DAMAGES FOR DELAYS Purchaser acknowledges that in the event of its failure to pay any amount when due hereunder, this failure shall directly or indirectly increase amounts which it is necessary to AMADA AMERICA, INC. to borrow in connection with the operation of its business. The parties acknowledge that is would be inordinately difficult to determine precisely which loan is necessitated by such default. Accordingly, the parties agree in advance that, in addition to any other damages to which AMADA AMERICA, INC.-may be entitled, customer shall pay AMADA AMERICA, INC. liquidated damages for interest expense caused approximately by its default. Such liquidated damages will be determined with respect to the maximum allowable interest charge permitted by Article 15, Section 1, Subparagraph 2 of the California State Constitution. Provided, however, that the interest charge to be imposed as aforesaid shall not exceed the maximum legal rate.

  8. TERMINATION In the event the Purchaser terminates this order prior to delivery or in the event the machinery sold is repossessed after delivery, Purchaser acknowledges that the difference between the contract price and market price at the time and place of tender as provided in California Commercial Code, Section 2708 (1) would be inadequate to place AMADA AMERICA, INC. in as good a position as performance would have done and therefore agrees that in addition to any other damages, AMADA AMERICA, INC. shall be entitled to recover its lost profit, including a pro rate share of overhead, as provided in Californil Commercial Code, Section 2708 (2).

  9. AMADA AMERICA. INC. FINANCING AMADA AMERICA, INC. may as a courtesy to Purchaser, assist Purchaser in obtaining financing for this transaction from financing institutions with which AMADA AMERICA, INC. deals. However, Purchaser shall itself bear full responsibility for obtaining financing necessary to complete this transaction.

  10. USED EQUIPMENT In the event Purchaser proposes to deliver used equipment to AMADA AMERICA, INC. as part of the purchase price for the goods subject to this invoice, Purchaser shall be deemed to warrant, covenant and represent that such equipment is free of any security interest, lien, or encumbrance in favor of any third party, and that Purchaser has revealed all material defects in said equipment known to Purchaser, its employees, or agents. Purchaser further agrees to indemnify, defend and hold AMADA AMERICA, INC. harmless from any claim or actions by person alleging any security interest, lien or encumbrance therein, and claims or actions for any injury to person or property, whether real or personal, arising in connection with operation or removal of the equipment from Purchaser's premises. At AMADA AMERICA, INC.'s option, in lieu of proving a defense, Purchaser shall be liable to pay the fees and costs for such independent legal counsel as AMADA AMERICA, INC. may in its sole discretion select.

  11. DEFAULT Should: (a) Purchaser fail to make any payment required under this Agreement or breach any condition, term or promise to AMADA AMERICA, INC.; (b) Purchaser becomes insolvent or make en assignment (for the benefit of creditors); (c) any proceeding be commenced by or against Purchaser under any bankruptcy, reorganization, arrangement, readjustment debt, moratorium, law or statue: (d) any writ of attachment, garnishment, execution, or other legal process be issued against any property of Purchaser; or (e) any assessment of taxes, other than on real property, be made against Purchaser by the federal or state government or any department of them.

    Upon such a default, all obligations secured by this Agreement shall immediately become due and payable, without demand first made or notice to Purchaser. Further, AMADA AMERICA, INC. shall have the rights and remedies of a Secured Party under the California Commercial Code, in addition to the rights and remedies provided in this Agreement. Included is the right to require Purchaser to assemble collateral and make it available to AMADA AMERICA, INC. at a place designated by it that is reasonably convenient to both parties. If a sufficient sum is not realized from any disposition of collateral to pay all obligations secured herein, Purchaser promises and agrees to pay AMADA AMERICA, INC. any deficiency.

  12. WAIVER OF RIGHTS Purchaser agrees that wavier by AMADA AMERICA, INC. of any default by Purchaser shall not waive any subsequent default. Purchaser waives all statutes of limitations and any defense based thereon in any way affecting the time for AMADA AMERICA, INC. to enforce its rights under this Agreement.

  13. RETURNED MATERIAL For credit to be allowed on goods returned, authority for the return must be approved in advance by AMADA AMERICA, INC. in writing. A restocking charge will be made by AMADA AMERICA, INC. on all parts ordered in error which are returned for credit with transportation charges prepared by the Purchaser.

  14. COURT JURISDICTION Notwithstanding the immediately preceding paragraph, each party shall be entitled to invoke the jurisdiction of the courts of the state in which any machinery or tooling sold hereunder is located, or in which the Purchaser does business, for the exclusive end limited purpose of obtaining such provisional remedies as may be authorized by law (e.g. prejudgment attachment or writ of possession). Further, in the event of any claim against AMADA AMERICA, INC. for which AMADA AMERICA, INC. may be entitled to indemnify against any third party, AMADA, AMERICA, INC. may within thirty (30) days of notification of arbitration elect to prosecute or defend such action in any court of proper jurisdiction, so as to avoid a multiplicity of proceedings with possible inconsistent results. Any such election shall be binding upon Purchaser, and shall be deemed to deprive that American Arbitration Association of jurisdiction to proceed with arbitration of said dispute. Upon notification of AMADA AMERICA, INC.'s election not to arbitrate said dispute, Purchaser's sole recourse shall be the filing of an action in the court designated by AMADA AMERICA, INC., to the jurisdiction and venue of which all parties consent.
    Judgement on any award in arbitration may be entered in any court having jurisdiction thereof.

  15. MODIFICATIONS This invoice shall constitute the complete agreement between AMADA AMERICA, INC. and the Purchaser and shall supersede all other prior oral or written statements of any kind whatsoever made by the parties or their representatives. Any purported modifications hereto shall not be binding unless specifically consented to in writing and signed by a duly authorized agent for AMADA AMERICA, INC.