TERMS AND CONDITIONS OF SALE

ACCEPTANCE of this Order is expressly conditioned on Buyer’s agreement that, the terms and conditions set forth herein, together with any plans or specifications approved in writing by BELYEA COMPANY INC., are the sole terms and conditions of this Order and constitute a contract representing the entire agreement of the parties with respect to the subject matter hereof. No amendment, modifications, or waiver of the terms and conditions of this Order shall be binding on BELYEA COMPANY INC., unless made in writing and signed by an authorized representative of BELYEA COMPANY INC. Any additional or different terms and conditions contained in the Buyer’s Purchase Orders or responses to this Order shall be deemed objected to by BELYEA COMPANY INC., without the need of further notice of objections and shall not be effective or binding unless assented to in writing signed by an authorized representative of BELYEA COMPANY INC. Buyer will be deemed to have assented to all the terms and conditions contained herein upon performance or part performance by BELYEA COMPANY INC. under this contract. In the event any terms or conditions in any contract or purchase order used by Buyer differ, the terms and conditions herein shall prevail. 

TERMS OF PAYMENT: Fifty percent (50%) due with PO, Fifty Percent (50%) due upon notification of equipment’s ready to ship status unless otherwise specified in the body of the quote (prior to shipment), no discount allowed. A service charge of one and one-half percent (1½%) per month on unpaid balances after thirty (30) days will be levied. If Buyer’s financial condition at any time does not justify continuance of the work to be performed by BELYEA COMPANY INC. hereunder on the agreed terms of payment, BELYEA COMPANY INC. may require full payment in advance. In the event of Buyer’s bankruptcy or insolvency or in the event any proceeding is brought against the Buyer, voluntarily or involuntarily, under the Bankruptcy or any insolvency laws, BELYEA COMPANY INC. shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate of Buyer and shall receive reimbursement for its proper cancellation charge. BELYEA COMPANY INC.’S rights under this provision are in addition to any other rights available to it at law or in equity. Please Note: A 5% Service Fee will be added to all Sales and Monthly Rentals paid by credit card. 

TITLE: All scrap resulting from the work shall be the property of the BELYEA COMPANY INC. The title and the right of possession of the equipment repaired or modified hereunder shall remain with the Buyer subject to any applicable lien rights of the BELYEA COMPANY INC. and to its rights in the event of nonpayment, financial condition of Buyer, and the insolvency as provided in the preceding paragraph. 

TAXES: The price quoted in this contract does not include any taxes and in the event the unit is taxable in New Jersey and/or Pennsylvania, those taxes will be added to the price herein. It is the responsibility of the customer to pay Use Tax if applicable in all other 48 states, unless Buyer is exempt from tax and demonstrates such exemption to the satisfaction of the BELYEA COMPANY INC. 

WARRANTIES: The BELYEA COMPANY INC. warrants to Buyer that products furnished pursuant to this contract will be free from defects in material, workmanship, and title and will be of the kind and quality specified in BELYEA COMPANY INC.’S Quotation. This warranty shall only apply if the items purchased pursuant to this contract are used by the Buyer in accordance with commonly accepted industry practices, including but not limited to, protecting the items by properly coordinated voltage surge suppressive, current overload and fault current protective devices. The foregoing warranties (excluding the warranty of title) shall terminate eighteen months after the date of shipment or twelve months from energization unless otherwise specified in the body of the quote . If any products covered by this contract fail to meet the foregoing warranties, (except title), the Buyer’s exclusive remedies shall be for the BELYEA COMPANY INC. to correct any such failure by either, (at the option of the BELYEA COMPANY INC.), REPLACING DEFECTIVE PARTS OR REPAIRING ANY DEFECTIVE PARTS OF THE PRODUCT F.O.B. Seller’s plant or other point of shipment. 

EXCEPT FOR THE WARRANTY SET FORTH ABOVE, SELLER MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS, INCLUD ING (A) WARRANTY OF MERCHANTABILITY; (B) WARR ANTY OF FITNESS FOR A PARTI CULAR PURPOSE; OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE OR OTHERWISE. 

If repair or replacement is unfeasible under the circumstances, the parties shall negotiate a satisfactory adjustment. UPON EXPIRATION OF THE WARRANTY PERIOD, ALL LIABILITY OF THE BELYEA COMPANY INC. FOR ITS PRODUCT SHALL TERMINATE. 

LIMITATION OF LIABILITY: BELYEA COMPANY INC. liability under this provision shall in no way exceed the total contract price, including the supplying of any necessary replacements and SHALL IN NO EVENT INCLUDE SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, ENHANCED, OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, REVENUES OR DIMINUTION IN VALUE, REGARDLESS, IN EACH CASE, (A) WHETHER SUCH DAMAGES WERE FOREEABLE; (B) WHETHER OR NOT BELYEA COMPANY INC. WAS ADVISED OF THE POSSIBILITY SUCH DAMAGES; (C) THE LEG​AL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF THIS CONTRACT. BELYEA COMPANY INC.’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO IT PURSUANT TO THIS AGREEMENT. 

ITEMS SOLD “AS IS”: Occasionally BELYEA COMPANY INC. offers for sale certain used or repaired items on an “AS IS” basis. Items so labeled are sold ‘AS IS” with all faults and BELYEA COMPANY INC. DOES NOT WARRANT THAT ANY SUCH ITEMS ARE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE. The Buyer acknowledges that it is paying a lower price for the items than the normal market price and that the disclaimer is part of the basis of the bargain. 

DELAYS: The BELYEA COMPANY INC. will not be liable for any delays in the performance of this contract or any damages suffered by the Buyer. Reasons for said delay, when the delay is directly or indirectly caused by or in any manner, arises from fires, floods, accidents, riots, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials or supplies, transportation delays, or other causes (whether or not similar in nature to any of those herein above specified) are beyond its control. 

DELIVERIES: Unless otherwise specified by the BELYEA COMPANY INC. delivery will be made and title passed FCA Seller’s Facility to Buyer. Risks of loss or damage pass on to Buyer once equipment is loaded for shipment. If products are to be delivered by the BELYEA COMPANY INC. such products are to be received and unloaded by Buyer at Buyer’s expense and risk. 

GOVERNING LAW: The laws of the Commonwealth of Pennsylvania shall govern the validity, performance, interpretation, and the effect of this agreement. 

CHOICE OF FORUM: Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached to this Agreement, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than EASTERN DISTRICT OF PENNSYLVANIA or, the Pennsylvania Court of Common Pleas of Northampton County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in EASTERN DISTRICT OF PENNSYLVANIA or the Pennsylvania Court of Common Pleas of Northampton County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. 

AMENDMENTS: This contract may not be modified or rescinded in any manner except by the written agreement executed by both Buyer and the BELYEA COMPANY INC. 

CANCELLATION: If the purchase is cancelled by the customer after PO is issued but before equipment ships, the cancellation fee will be 35% of the purchase price plus the cost of any nonstandard customization work/materials if applicable. If the purchase is cancelled by the customer after the customer has been notified that the equipment is ready to ship the cancellation fee shall be 75% of the purchase price plus the cost of any nonstandard customization work/materials if applicable. Customer pays all shipping charges. If the purchase is cancelled by the customer once the equipment has been loaded with the carrier, the cancellation fee shall be 100% of the purchase price. Customer pays all shipping charges. These are the standard terms unless otherwise specified in the body of the quote. 

SETOFF: Buyer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup, or debit any amounts owed (or to become owing) to BELYEA COMPANY INC. against any other amounts owed (or to become due and owing) to it by BELYEA COMPANY INC, whether relating to BELYEA COMPANY INC.’s breach or non-performance of this agreement or any other agreement between Buyer and BELYEA COMPANY INC. 

CONFIDENTIAL INFORMATION: All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. 

COMPLIANCE WITH LAW: Buyer shall, at all times, comply with all laws applicable to this Agreement, Buyer's performance of its obligations hereunder, and Buyer's use of the equipment. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase or use of the equipment and (b) not engage in any activity or transaction involving the equipment, by way of shipment, use, or otherwise, that violates any law. 

INDEMNIFICATION: Buyer shall indemnify, defend and hold harmless BELYEA COMPANY INC. and its officers, directors, employees, agents, affiliates, successors and assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party, relating to/arising out of or resulting from any claim of a third party arising out of or occurring in connection with the products purchased from BELYEA COMPANY INC. or Buyer's negligence, willful misconduct or breach of this Agreement. Buyer shall not enter into any settlement without BELYEA COMPANY INC. or Indemnified Party's prior written consent. 

ENTIRE AGREEMENT: This Agreement including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. 

WAIVER: No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. 

ASSIGNMENT: Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Buyer's prior written consent. 

WAIVER OF JURY TRIAL: EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY. 

RELATIONSHIP OF THE PARTIES: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. 

NO THIRD-PARTY BENEFICIARIES: This Agreement benefits solely the parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. 

NOTICES: All notices shall be in writing and addressed to the parties at the addresses set forth on the face of the Purchase Order or to such other address for either party as that party may designate by written notice. All notices must be delivered by nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested). 

SEVERABILITY: If any term or provision of this Agreement is determined to be invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.