Sales Conditions

Sematic USA, Inc. (Tyler Elevator Product)
General Terms and Conditions

This order with Sematic USA, Inc. (hereinafter "SEMATIC"), a Delaware corporation for the purchase of goods and/or services furnished by SEMATIC to BUYER is subject to the terms and conditions below:

1. Entire Contract. THE TERMS AND CONDITIONS BELOW CONSTITUTE ALL OF THE TERMS OF THIS CONTRACT (the "Agreement") BETWEEN BUYER AND SEMATIC (the PARTIES). BUYER AGREES TO BE BOUND HEREBY. All orders are subject to approval by SEMATIC at its corporate headquarters in Cleveland, Ohio. Except in cases where they directly contradict prior express contracts between SEMATIC and the BUYER, the terms and conditions stated herein govern the Agreement between the parties. As provided in Paragraph 21 of this Agreement, no waiver or alteration of these terms shall be binding unless expressly agreed to, in writing, by both parties. Any waiver or alteration by SEMATIC shall be made only by a writing signed by an officer or director of SEMATIC at its corporate headquarters.

2. Price. All prices are EXW loaded without packing and unloading, unless agreed to in writing by BUYER and SEMATIC. Prices quoted are those in effect at the time of quotation. Until purchase price and all other sums due are paid in full, BUYER grants SEMATIC a security interest in the Goods described on the face hereof (hereinafter "Goods"). BUYER shall execute appropriate financing statements or similar documents upon specific request by SEMATIC.

3. Payment Terms. Invoices are due and payable net thirty (30) days from shipment, unless otherwise set forth on the face hereof. Any outstanding balances unpaid on the date when due to SEMATIC shall be subject to a finance charge of 1 ½% per month (or the maximum allowed by law) on such balance until paid, together with SEMATIC'S costs of collection (including court costs and reasonable attorney fees). Any discount offered will be calculated from Invoice Date to the date payment is received at SEMATIC or SEMATIC'S agent. Any discount offer is void if not taken at time of Invoice Payment. Buyer has no right of set-off.

4. Services. Services to be provided by SEMATIC shall be governed by a written and mutually agreed upon Quotation ("Quotation") or Specification and Work Statement ("Work Statement") such Work Statement shall constitute the complete and exclusive specifications (hereinafter "Specifications") for the Goods to be sold and/or Services to be performed and shall become part of this Agreement. All Specifications shall be based upon information provided by BUYER, who shall be solely responsible for its accuracy and completeness and who shall indemnify, defend and hold harmless SEMATIC, including reasonable attorney fees, court costs, and costs of investigation and defense from any harm or damages or liability caused to it by any inaccuracy or incompleteness of the Specifications. In the event BUYER requests a change to this Agreement and/or the Specifications, or if any information or the Specifications provided by the BUYER is determined by SEMATIC, in its sole discretion, to be inaccurate or incomplete, SEMATIC reserves the right to: (a) stop work until an agreement with BUYER on changes and an equitable solution and adjustment is reached; or (b) upon ten (10) days prior notice, terminate this Agreement immediately, without liability to BUYER, and assess BUYER cancellation charges.

5. Acceptance. Upon receipt of shipment, BUYER shall immediately inspect and/or test all Goods and/or Services. Goods and/or Services shall be deemed accepted unless BUYER provides written notice of the contrary to SEMATIC within thirty (30) days after receipt of shipment, describing any defect(s) in the performance of Goods or discrepancy in the quantity of Goods received. BUYER'S testing shall be governed by the Manufacturer's Product Data Sheet.

6. Transportation. If BUYER does not specify a method of shipment, SEMATIC shall use its own discretion in determining the method of shipment. Costs of premium transportation, required by BUYER through no fault of SEMATIC, will be borne by BUYER. The rate indicated on Buyer's invoice shall be based on the rate charged to SEMATIC by the motor carrier of the merchandise. At some future time, SEMATIC may receive a reduction, allowance or other adjustment of this rate based on its tendering a volume of freight over a period of time.

7. Title and Risk of Loss. Title to Goods sold and risk of loss shall pass to BUYER at the EXW point. Buyer will demonstrate by certificate of insurance, property damage coverage in amounts sufficient to insure the fair market value of the goods.

8. Limited Warranty for SEMATIC Workmanship and Assembly. SEMATIC WARRANTS THE GOODS AND/OR SERVICES TO BE FREE FROM DEFECT IN SEMATIC WORKMANSHIP OR ASSEMBLY FOR NINETY (90) DAYS FOLLOWING THE DATE OF SHIPMENT. IF ANY OF THE GOODS AND/OR SERVICES ARE FOUND BY SEMATIC TO BE DEFECTIVE BY REASON OF SEMATIC WORKMANSHIP 06-06-05 OR ASSEMBLY, SUCH GOODS AND/OR SERVICES WILL, AT SEMATIC'S OPTION BE REPLACED, REPAIRED AT SEMATIC'S COST OR THE PURCHASE PRICE REFUNDED. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE NOT EXPRESSLY SET FORTH IN THIS AGREEMENT AND THOSE SET FORTH BELOW. SEMATIC'S WARRANTY DOES NOT APPLY TO ANY GOODS AND/OR SERVICES WHICH HAVE BEEN SUBJECT TO MISUSE, MISHANDLING, MISAPPLICATION, NEGLECT (INCLUDING, BUT NOT LIMITED TO IMPROPER MAINTENANCE) ACCIDENT, MODIFICATION, IMPROPER INSTALLATION, ADJUSTMENT OR REPAIR BY BUYER OR ANY THIRD PARTY OR THE LIKE. ANY AFFIRMATION OF FACT OR PROMISE MADE BY SEMATIC SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE GOODS SHALL CONFORM TO THE AFFIRMATION OR PROMISE. ANY DESCRIPTION OF THE GOODS WHICH CONTAINS AN AFFIRMATION OF ACT OR PROMISE IS FOR THE SOLE PURPOSE OF IDENTIFYING THEM AND SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE GOODS SHALL CONFORM TO THE DESCRIPTION. ANY SAMPLE OR MODEL IS FOR ILLUSTRATIVE PURPOSES ONLY AND SHALL NOT BE DEEMED TO CREATE AN EXPRESS WARRANTY THAT THE WHOLE OR THE GOODS SHALL CONFORM TO THE SAMPLE OR MODEL, AND NO AFFIRMATION OR PROMISE, OR DESCRIPTION, OR SAMPLE OR MODEL SHALL BE DEEMED PART OF THE BASIS OF THE AGREEMENT BETWEEN THE PARTIES.

THE LIMITED WARRANTY FOR NEW CONSTRUCTION WILL BE 12 MONTHS, NOT 90 DAYS.

9. Disclaimer of Other Warranties. OTHER THAN AS SPECIFICALLY PROVIDED ABOVE, SEMATIC MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO DESIGN, COMPLIANCE WITH WRITTEN SPECIFICATIONS, OPERATION, CONDITION, INSTALLATION OR ACCEPTANCE OF THE GOODS AND/OR SERVICES SOLD. THERE ARE NO REPRESENTATIONS OR WARRANTIES OUTSIDE THIS AGREEMENT UPON WHICH BUYER HAS RELIED IN ENTERING INTO THIS AGREEMENT.

10. Limitation of Liability. SEMATIC'S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT, TORT LIABILITY, MISREPRESENTATION, FRAUD, WARRANTY, NEGLIGENCE OR STRICT LIABILITY) FOR THE GOODS AND/OR SERVICES SHALL BE LIMITED TO REPAIRING OR REPLACING THE GOODS AND/OR SERVICES FOUND BY SEMATIC TO BE DEFECTIVE, OR AT SEMATIC'S OPTION, REFUNDING THE PURCHASE PRICE OF SUCH GOODS AND/OR SERVICES. AT SEMATIC'S REQUEST, BUYER WILL SEND, AT SEMATIC'S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE GOODS TO SEMATIC.

11. Disclaimer of Consequential Damages. IN NO EVENT SHALL SEMATIC BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR OTHER SIMILAR DAMAGES ARISING FROM BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY EVEN IF SEMATIC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Consequential damages shall include, without limitation, loss of use, loss of income or profit, loss of data, costs of recreating lost data, or loss sustained as the result of injury to any person, or loss or damage to any property, or loss or damage sustained as the result of work stoppage. BUYER shall indemnify SEMATIC against all liability, costs or expense, including reasonable attorney fees, court costs, and costs of investigation and defense, which may be sustained by SEMATIC due to such loss, damage or injury. IN 06-06-05 NO EVENT SHALL SEMATIC'S LIABILITY EXCEED THE PURCHASE PRICE OF THE GOODS AND/OR SERVICES.

12. Taxes. Unless specifically provided herein, the price for Goods and/or Services purchased does not include, sales, use, excise or similar taxes whether federal, state or local. BUYER is responsible for all applicable taxes on any Goods and/or Services after title passes to BUYER at the F.O.B. point. If BUYER is exempt from paying Sales Tax, a certificate evidencing such in the form and content required by the applicable state shall be provided to SEMATIC upon request.

13. Export. BUYER agrees not to directly or indirectly export any Goods (whether or not modified by Services), including, but not limited to parts, equipment, software or technical data/documentation without first obtaining the required U.S. Government export license(s). If BUYER intends to export Goods outside the U.S., BUYER shall determine whether an export license is required and, if so, obtain that license from the U.S. Government. BUYER shall indemnify SEMATIC from any loss or liability due to BUYER'S failure to comply with export regulations, including but not limited to reasonable attorney fees, court costs, and costs of investigation and defense. BUYER further warrants that the Goods sold under this Agreement will not be resold, transferred, exported or reused in any way by BUYER in violation of any laws, regulations or export control imposed by the U.S. Government.

14. Delays. SEMATIC will not be liable for any nonperformance of the Agreement caused by mistakes or deficiencies in the Buyer documents or drawings, or unresolved technical detail material to performance. Further non-performance attributable to strikes, fires, disasters, riots, acts of God or other causes or conditions beyond SEMATIC'S reasonable control impose no liability on SEMATIC. In the event of such delay or nonperformance, SEMATIC may, at its option, and without liability, cancel any portion of this Agreement and/or reasonably extend any date upon which any performance is due.

15. Termination. In addition to the termination rights set forth in Section 4, if BUYER (a) fails to pay any amount owed when due, or (b) assigns or transfers this Agreement without SEMATIC'S consent, or (c) makes an assignment for the benefit of creditors, or (d) files or has filed against it, a petition for relief under federal or state bankruptcy laws, or (e) breaches any other term or condition of this Agreement, SEMATIC may terminate any portion of this Agreement in addition to SEMATIC'S other available remedies. If either party fails to perform any obligation when due, and if such failure is not remedied within thirty (30) days after receipt of written notice from the other party, said non-defaulting party may terminate any portion of this Agreement.

If this Agreement is terminated by BUYER for any reason other than default by SEMATIC, BUYER shall be liable for all work in process at the time of termination plus an administrative fee equal to fifteen percent (15%) of the amount of such services and expenses as determined by SEMATIC. Upon acceptance of payment in full of the amounts set forth herein, BUYER'S contract with SEMATIC shall be deemed terminated.

16. Returns and Cancellation. BUYER may not cancel any order or return any Goods which have been special or custom ordered, custom manufactured, tested or configured, or Goods, which BUYER has been notified are non-cancelable and/or non-returnable Goods. Return shipment(s) from BUYER must be authorized by SEMATIC prior to shipment.

17. Patents and Copyrights. (a) In no event shall SEMATIC be liable for damages arising from infringement of patents or copyrights. In the event that BUYER is enjoined in such suit or proceeding from using any of the Goods purchased pursuant to this Agreement, SEMATIC, at its option, shall either (a) secure termination of the injunction and procure for BUYER the right to use such Goods without obligation or liability, or (b) replace or modify said Goods with non-infringing materials to BUYER'S reasonable satisfaction, or (c) remove infringing Goods at SEMATIC’S expense and refund the purchase price of the infringing Goods to BUYER provided, however, that in no event shall SEMATIC be liable for or have any obligations under this Section if the alleged infringement is by reason of the Specifications provided by BUYER to SEMATIC under this Agreement. THIS SHALL BE BUYER'S EXCLUSIVE REMEDY AGAINST SEMATIC WITH RESPECT TO PATENT OR COPYRIGHT INFRINGEMENT.

The sale of Goods does not convey any license or copyright under any proprietary or patent rights of any manufacturer. SEMATIC shall not have any liability if the alleged infringement is based upon the use or application of the Goods in combination with other Goods, and BUYER shall indemnify SEMATIC thereof, including but not limited to reasonable attorney fees, court costs, costs of investigation and defense. SEMATIC disclaims all other liability for infringement of intellectual property rights and further disclaims any liability for incidental or consequential damages arising in connection with such infringement. SEMATIC RETAINS ALL INTELLECTUAL PROPERTY RIGHTS WITH RESPECT TO MODELS, COST ESTIMATES, DRAWINGS, DESIGNS AND OTHER PROPRIETARY INFORMATION, IN PRINT OR ELECTRONIC MEDIA, AND UNDER NO CONDITIONS SHOULD SUCH INFORMATION BE DISCLOSED TO THIRD PARTIES WITHOUT THE EXPRESS WRITTEN CONSENT OF SEMATIC...

18. Credit Terms. All orders and shipments shall, at all times, be subject to the approval of SEMATIC'S Credit Department. SEMATIC reserves the right to decline to make shipment whenever, for any reason, there is doubt in SEMATIC'S sole judgment, as to BUYER'S financial responsibility or solvency and SEMATIC shall not, in such event, be liable for breach of nonperformance of this Agreement in whole or in part.

19. Packaging. Packaging will be standard commercial package and acceptance to commercial carriers. Special customer packaging will be furnished only when specified and so stated herein and the cost thereof shall be borne by BUYER.

20. Substituted or Repaired Goods. If substituted, additional, or repaired Goods or repair parts are purchased by BUYER from SEMATIC, the terms and conditions of this Agreement shall be applicable thereto, the same as if such substituted, additional or repaired Goods or repair parts had been originally purchased hereunder.

21. Modification. This Agreement cannot be changed or modified or amended in any respect except by the written consent of a respective officer or director of SEMATIC at its corporate headquarters located at 6161 Halle Drive, Valley View, Ohio 44131.

22. Other Conditions. No agent, salesman or other party is authorized to bind SEMATIC to any agreement, warranty, statement, promise or understanding not expressed herein. Any notice which is required under the terms of this Agreement shall be in writing and delivered to the address to the party set forth in this Agreement and shall be effective when actually received. The remedies reserved by the parties shall be cumulative and in addition to other remedies provided by law. SEMATIC shall not be required to proceed with the performance of any obligation under this Agreement so long as BUYER is in default or breach of any of BUYER'S obligations or agreements herein. Any clerical errors are subject to correction.

The sale of Goods and/or Services pursuant to this Agreement shall be governed by the laws of the State of Ohio. SEMATIC and BUYER acknowledge and agree that the U.S. District Court of Ohio, or if such Court lacks jurisdiction, the Common Pleas Court for Cuyahoga County, Ohio shall be the venue and exclusive proper forum in which to adjudicate any case or controversy arising either directly or indirectly under or in connection with this Agreement and the relationship between SEMATIC and BUYER. The parties further agree, in the event of litigation arising out of or in connection with this Agreement in these Courts, they will not contest or challenge the jurisdiction or venue of these Courts. No delay or omission by SEMATIC in exercising any right or remedy shall constitute a waiver of such right or remedy. The waiver, invalidity or unenforceability of any provision in this Agreement shall not effect the validity of this Agreement as a whole or the validity of any other provision(s) herein.

This Agreement shall be binding upon and shall inure to the benefit of the successors and assignees of BUYER and SEMATIC. BUYER may not assign or transfer this Agreement, in whole or in part, without the prior written consent of SEMATIC. For the purposes of this Agreement, the BUYER and SEMATIC agree that, notwithstanding any of items sold not constituting "goods" as defined in Article 2 of the Uniform Commercial Code as adopted and amended from time to time in the State of Ohio, for the purposes of interpreting this Agreement, all items shall be deemed to be "goods" and that there are no promises, agreements, conditions, undertakings, or warranties or representations, oral or written, express or implied, between BUYER and SEMATIC or upon which any party has relied other than as set forth herein.

SEMATIC and BUYER hereby waive trial by jury in any action, proceeding or counterclaim brought by either of the Parties hereto, against the other on, or in respect of, or any matter whatsoever arising out of or in any way connected with this Agreement, the relationship between SEMATIC and BUYER hereunder, and the BUYER'S use, purchase, and resale of any Goods and/or Services purchased from SEMATIC, and/or any claim of injury or damage.

If any provision of this Agreement is held to be illegal, invalid, or unenforceable under present or future laws effected during the term of this Agreement, the legality, validity and enforceability of the remaining provisions of this Agreement shall not be effected thereby, and in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a provision as similar in terms to such illegal, invalid or unenforceable provision as may be possible and legal, valid and enforceable.