BRECHBUHLER SCALES, INC.

TERMS AND CONDITIONS OF SALE

All sales by Brechbuhler Scales, Inc., Inc. (“Seller”) are made pursuant to the terms and conditions stated herein.

  1. These Terms and Conditions Govern – The terms and conditions of sale as contained herein and in any accompanying quotation or proposal of Seller shall take precedence over any additional or different terms and conditions of Buyer and constitute the entire understanding between the parties relating to the goods purchased hereunder. Acceptance by Buyer is limited to Seller’s terms and conditions and Buyer, upon placing an order for any goods quoted by Seller, agrees to be bound by the terms and conditions set forth herein.  Any additional or different terms and conditions contained in Buyer’s purchase order or Buyer’s response to Seller’s quotation shall not be effective or binding unless specifically consented to in writing by an authorized representative of Seller.  Neither Seller’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s additional or different terms and conditions.
  2. Entire Agreement – The terms and conditions contained herein and in any accompanying quotation or proposal of Seller, shall constitute the entire and complete agreement between Seller and Buyer and shall supersede all prior oral or written statements or understandings of any kind whatsoever made by the parties or their representatives. No modifications or additions to these terms and conditions shall be binding on Seller unless specifically agreed to in writing and signed by an authorized representative of Seller.  Further, no oral or written statement made subsequent to the acceptance of Buyer’s order by Seller which purports to modify in any way these terms and conditions shall be binding upon Seller unless such statement is clearly adopted and agreed to in writing by a duly authorized representative of Seller.
  3. Delivery – Any delivery date(s) agreed upon by Seller and Buyer are approximate only. Seller will make every reasonable effort to meet estimated delivery date(s).  However, Seller will not be liable for its failure to meet the quoted delivery date(s) or for any delay in performance due to unforeseen circumstances or causes beyond its control including, but not limited to, act of God, fires, floods, accidents, strikes or other work stoppages, catastrophes, war, riots, embargoes, governmental interferences, transportation delays or defaults and delays of suppliers.

    Unless otherwise expressly agreed to in writing by the parties, Seller reserves the right to determine the type of carrier or shipper on all shipments.  All goods shall be packed for shipment in accordance with standard commercial practices and, all such packing will conform to the requirements of the carrier or shipper.

    All prices for goods sold to Buyer shall be F.O.B. Manufacturer unless otherwise expressly agreed to in writing by Seller.  Buyer agrees to pay for all shipping and transportation charges.

    Title to the goods and risk of loss and damage shall pass to Buyer upon delivery to a common carrier or, if there is no common carrier, at the time the goods leave Seller’s plant.  All claims for loss or damage in transit must be filed by Buyer with the carrier or shipper.

  4. Pricing Policies – Published prices and discounts are subject to change without notice.

    All quoted prices are exclusive of transportation, insurance and any present or future sales, use, excise, personal property or other similar tax.  Buyer agrees to pay all such applicable taxes.

    Unless otherwise stated in Seller’s quotation, all prices are exclusive of installation and service.

  5. Payment Terms – Unless otherwise expressly agreed to in writing by Seller, goods will be invoiced upon shipment or, in the case of goods to be installed by Seller, upon completion of installation. Payment in full is due within thirty (30) days from the invoice date.  In the event payment is not made when due, Buyer agrees to pay Seller a service or finance charge of one and one-half percent (1.5%) per month (18% per annum) on the unpaid balance of the invoice from and after the invoice date.

    Buyer is responsible for all costs and expenses associated with any checks returned due to insufficient funds.

  6. Effect of Buyer’s Financial Condition – If, during the performance of the contract with Buyer, the financial responsibility or condition of Buyer is such that Seller, in good faith deems itself insecure, or if Buyer becomes insolvent, or if a material change in the ownership of the Buyer occurs, or if Buyer fails to make any payments in accordance with the terms of its agreement with Seller, then, in any such event, Seller is not obligated to continue performance under the contract and may stop goods in transit and defer or decline to make delivery of goods, except upon receipt of satisfactory security or cash payments in advance, or Seller may terminate the order without further obligation to Buyer whatsoever.
  7. Security Interest – Seller reserves and Buyer grants to Seller a purchase money security interest in the goods purchased by Buyer for the amount of the purchase price. This security interest will be satisfied and discharged upon payment in full of all amounts due and owing to Seller.  Should Buyer fail to make payment to Seller as agreed or otherwise be in default under these terms and conditions, Seller may remove and repossess from Buyer any and all goods sold hereunder without notice or demand.  Buyer hereby consents to Seller’s entry upon its premises for the purpose of removing and repossessing such goods.  In addition, Seller may exercise all other rights and remedies conferred upon it by law or this contract, including the rights and remedies of a secured party under the Uniform Commercial Code in effect in Ohio at the date of this agreement.

    A copy of the contract signed by Buyer may be filed with the appropriate governmental offices as a financing statement in order to evidence and perfect Seller’s security interest in the goods.  If requested by Seller, Buyer agrees to sign such UCC financing statements and/or other documents as may be necessary to evidence and perfect Seller’s security interest in the goods.  Buyer agrees not to sell or transfer any of the goods prior to payment in full of the purchase price.

  8. Warranties – Seller warrants new goods sold to be free from defects for the lesser of a period of one (1) year from the date of shipment or, if installed, from

    date of final installation, or as stated by the equipment manufacturer.  In the event of a defect, Seller will, at its option, repair or replace defective parts or refund the Buyer’s purchase price upon the return of the goods to Seller.  For defects arising after ninety (90) days from shipment, Buyer must pay for all labor charges involved in replacing or repairing any part(s) found to be defective.  Seller warrants rebuilt goods sold to be free from defects for a period of thirty (30) days from date of shipment, or, if installed, from date of final installation.  In the event of a defect, Seller will, at its option, repair or replace defective parts or refund the Buyer’s purchase price upon Buyer’s return of the goods to Seller.  Seller warrants that used goods are sold in an “as is” condition and no warranty applies.  These warranties apply to the original owner and location only.

    These warranties do not apply when installation, inspection, or servicing of such goods is performed by other than Seller’s authorized personnel, where the goods are operated above rated capacity, where the goods are improperly stored by Buyer prior to installation or where the goods are improperly housed after installation or where the goods are used in an application or in an environment different from that under which the goods were originally sold or manufactured.

    THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, GUARANTIES, AGREEMENTS, CONDITIONS OR REPRESENTATIONS MADE BY ANY PERSON WITH RESPECT TO THE GOODS COVERED BY THIS ORDER, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WHICH ARE HEREBY SPECIFICALLY DISCLAIMED.

  9. Limitation of Actions – Buyer shall be responsible for the inspection of the goods promptly after their delivery. All claims of defects capable of discovery before the goods are in use must be made in writing and received by Seller prior to the installation of the goods.  If Buyer fails to timely notify Seller of such defects, the defects shall be deemed waived.  With respect to any defects incapable of discovery until after the goods are in use, all claims for damages or losses as a result of such defect shall be deemed waived unless made in writing and received by Seller within one (1) year of installation with respect to new goods or within thirty (30) days with respect to used or rebuilt goods.

    IN NO CASE WILL SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM A BREACH OF WARRANTY OR ANY OTHER CAUSE INCLUDING, BUT NOT LIMITED TO, LOSS OF USE OF THE PRODUCT, LOSS OF TIME, INCONVENIENCE, INJURY, LOSS OR DAMAGE TO PERSON OR PROPERTY, COMMERCIAL LOSS, LOSS OF PROFITS, LIABILITIES OF BUYER TO ITS CUSTOMERS OR THIRD PERSONS OR OTHER MATTERS NOT SPECIFICALLY STATED, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER LEGAL THEORY.

    It is specifically agreed that any action for breach of warranty or other action against Seller under this contract shall be commenced within one (1) year and one (1) day after such cause of action occurred.

  10. Zoning and Related Matters – Buyer is solely responsible for obtaining any and all permits (including but not limited to zoning, building, etc.) that may be required for the installation of the goods being sold hereunder. Further, Buyer is solely responsible for insuring any installation is done in compliance with all building or zoning laws including, but not limited to, any setback requirements.
  11. Control of Pedestrian Traffic on Vehicle Scales – Buyer understands and acknowledges that Truck Scales and Railroad Track Scales are designed to carry vehicular  traffic only, and are not designed to accommodate pedestrian traffic.  Therefore, it is recommended that drivers, operators and passengers remain in the vehicle while it is on the scale platform.  Furthermore, pedestrians should not walk or stand on the scale platform or approaches.  Buyer assumes all responsibility for the control of any pedestrian traffic on the scale or scale approach areas, including but not limited to, the erection of any warning signs, barriers and/or other devices to prohibit or prevent pedestrian traffic on the scale platform or approaches.
  12. Indemnification – Buyer hereby agrees to indemnify and save Seller, its directors, officers and employees, harmless from all loss, liability, damages, costs and expenses (including attorney’s fees and other expenses of litigation) resulting from any claim or action for personal injury or death or damage to or loss of property or violation of or failure to comply with any applicable law, regulation, rule or order arising from the use by Buyer, its employees, agents, customers, invitees or by other third parties of the goods and services to be provided under this contract including compliance of goods with all state and federal safety regulations and requirements which are applicable to Buyer’s business and the specific use of the goods within Buyer’s business. Buyer, at its expense, shall defend any such claim or suit against Seller and/or its directors, officers and employees and shall pay any judgement resulting therefrom.  Seller shall have the right, but not the duty, to participate in the defense of any such claim or suit with attorneys of its own selection without relieving Buyer of any of its obligations hereunder.  Buyer expressly waives and surrenders Buyer=s statutory immunity and Buyer=s constitutional immunity from suit for injuries arising out of employment.  This indemnity shall survive delivery of the goods or performance of the services under this contract.
  13. Waiver – The failure of Seller to insist, in any one or more instances, upon performance of any of the Seller’s terms and conditions, or the failure of Seller to exercise any of its rights hereunder will not be construed as a waiver and shall not affect Seller’s rights to insist on strict future performance of these terms and conditions.
  14. Governing Law – All contracts made pursuant to these terms and conditions shall be deemed to be made in and shall be governed by the laws of the State of Ohio in effect at the time the contract is made. The Stark County, Ohio Common Pleas Court shall have sole and absolute jurisdiction and venue over any claims, liabilities and/or disputes which may arise between Buyer and Seller and/or out of these terms and conditions.
  15. Severability – If any provisions or a portion of these terms and conditions is deemed invalid by a court having jurisdiction over the parties, it is the intention of Buyer and Seller that the remaining provisions remain fully effective.
  16. Errors – Stenographic and clerical errors are subject to correction.

4/21/99