ACCEPTANCE / GOVERNING TERMS

THESE TERMS AND CONDITIONS OF SALE (“TERMS”) SHALL APPLY TO ALL SALES OF KEY INSTRUMENTS INDUSTRIES, INC.’S (hereinafter Key Instruments) PRODUCTS AND SERVICES (“PRODUCTS”). UNLESS OTHERWISE SPECIFICALLY AGREED IN WRITING BY AN AUTHORIZED REPRESENTATIVE OF KEY INSTRUMENTS, ANY DIFFERENT OR ADDITIONAL TERMS AND CONDITIONS PROPOSED BY ANY PURCHASER IN A PURCHASE ORDER, RESPONSE TO A QUOTATION OR OTHER PROPOSAL, ARE HEREBY REJECTED BY KEY INSTRUMENTS AND SHALL NOT BE INCORPORATED INTO ANY AGREEMENT FOR SALE OF PRODUCTS AND SERVICES. PURCHASER’S ASSENT TO THESE TERMS SHALL BE CONCLUSIVELY PRESUMED FROM PURCHASER’S ORDERING PRODUCTS AND SERVICES QUOTED BY KEY INSTRUMENTS, PURCHASER’S FAILURE TO OBJECT IN WRITING TO THESE TERMS, AND/OR PURCHASER’S ACCEPTANCE OF ALL OR PART OF ANY PRODUCTS AND SERVICES ORDERED.

IF KEY INSTRUMENTS IS FOUND TO HAVE ACKNOWLEDGED PURCHASER’S ORDER OR PROPOSAL, AND SUCH ACKNOWLEDGMENT CONSTITUTES AN ACCEPTANCE OF AN OFFER, SUCH ACCEPTANCE IS EXPRESSLY MADE CONDITIONAL ON PURCHASER’S ASSENT SOLELY TO THESE TERMS WHICH SHALL FORM PART OF THE ACKNOWLEDGMENT, AND ACCEPTANCE BY PURCHASER OF ANY PRODUCTS AND SERVICES SHALL BE DEEMED TO CONSTITUTE SUCH ASSENT. IF ANY QUOTATION OR OTHER DOCUMENT OF KEY INSTRUMENTS IS DEEMED TO CONSTITUTE AN OFFER TO PURCHASER, PURCHASER’S ACCEPTANCE OF SUCH OFFER IS LIMITED TO THESE TERMS.

1. GENERAL. The terms and conditions set forth below, together with the written information contained on the face of the quotation (“Quotation”) and purchase order (“Order”) and all attachments and exhibits attached thereto and all assembly drawings, bills of materials, comprehensive engineering specifications, electrical schematics, specifications, drawings, notes, instructions, and other written materials shall apply to the purchase of the products and/or services described in the Quotation and Order (collectively “Products”) and are incorporated herein and are made a part of the Quotation and Order. Seller (Key Instruments Industries, Inc.) may accept the Order either by performance or the sending of an acknowledgement. If a purchase agreement exists between Key Instruments Industries, Inc. and Purchaser with respect to the Products, the terms of such agreement shall prevail over any inconsistent Terms herein.

2. ORDERS. Key Instruments Industries, Inc. (Key Instruments) price sheets and Quotations are not offers to sell, and possession of a price sheet or Quotation does not entitle one to purchase. Key Instruments shall not be bound to sell any Products unless it shall (in its sole discretion) accept submitted purchase orders. Orders for Products may not be canceled by the Purchaser unless such cancellation is approved in writing by Key Instruments Industries, Inc., in which case Purchaser shall reimburse Key Instruments for all work already performed and for special material purchased by Key Instruments. If an Order is canceled after shipment or if delivery is refused at destination, all warehousing, delivery, disposition and return costs will be charged to the Purchaser, and Purchaser also shall be liable for, and shall promptly pay to Key Instruments, the full purchase price of the Equipment.

3. PRICES. Price does not include freight charges (except as noted on a Quotation provided by Key Instruments), handling charges or charges for installation, commissioning, or engineering services unless otherwise stated. All shipping and Key Instruments’s standard handling charges are added to the final invoice or to progress invoices if there are multiple shipments. Prices further exclude export licensing fees; taxes, duties or similar charges imposed by any taxing authority upon the Products which Key Instruments is obligated to pay or collect; and setup, tooling, or non-recurring engineering activities. Any prices quoted in writing shall be valid for thirty (30) days from issuance. Prices shall remain fixed for the term of the Agreement, subject to Key Instruments’s right to revise prices (i) to account for any variations on the market prices of components, parts and raw materials, including any such variations resulting from shortages; and (ii) in the event of a change in the Purchaser’s specifications or quantities ordered.

4. PAYMENT TERMS. Unless otherwise noted, the default payment terms are net 30 calendar days from invoice date. All accounts shall be paid in U.S. Dollars (unless specifically agreed otherwise by Key Instruments) to Key Instruments in accordance with the payment terms specified in the Quotation and/or listed on Key Instruments’s invoice. All payment amounts are net of applicable fees. Key Instruments reserves the right to not ship Products, and/or to not put an Order for Products into production, until receipt of an initial deposit, which may be specified on a Key Instruments Quotation or Order acceptance. Credit references may be requested by Key Instruments, and if, in the judgment of Key Instruments, the financial condition of Purchaser at the time the Products are ready for shipment does not justify the terms of payment specified, Key Instruments may at its sole discretion require either full or partial payment before accepting an Order. An interest charge of 1.5% per month of the unpaid balance will be added starting from invoice past due date. A warranty claim shall not affect payment terms. If Key Instruments refers a claim for payment to an attorney or agent for collection or pursues any other collection remedies, Purchaser shall pay all associated costs and attorney’s fees, including all costs associated with the filing of liens and other legal actions.

5. SHIPMENT AND DELIVERY TERMS. All orders shall be picked up by the Customer at Key Instruments’s facility or orders will be shipped F.O.B. Key Instruments’s facility of manufacture and freight collect. Title to and risk of loss of all orders shall pass upon Key Instruments’s delivery of goods to the Purchaser or to the carrier, as appropriate. The Purchaser shall pay all freight, handling, delivery (including, but not limited to, V.A.T., duty and customs), special packing and insurance charges for shipment of orders. Choice of carrier and shipping method and route shall be at the election of Key Instruments. Key Instruments shall have the right to deliver all orders covered hereby at one time or in portions. If Purchaser elects to handle its own shipping, Purchaser shall be solely responsible for making all arrangements.

6. DELIVERY and DELAY. Shipping dates are approximate and are based on conditions existing at the time of Key Instruments’s receipt of the Purchaser’s firm order and full information. Key Instruments will use commercially reasonable efforts to ship by the estimated shipping date but it shall not be responsible for any delay or any damage arising from a delay. Delivery dates in no event shall be construed as falling within the meaning “time is of the essence.” In addition, Key Instruments shall not be liable for any damages, loss or delay due to war, riots, fire, flood, strikes or other labor difficulty, acts of civil or military authority including governmental laws, orders, priorities or regulations, acts of the Purchaser, embargo, shortage of transportation facilities or delay in transportation, or inability to obtain necessary labor or materials from usual sources, other contingencies of manufacture or shipment, or other causes beyond the reasonable control of Key Instruments. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be adjusted to reflect the actual length of time lost by reason of such delay. Purchaser’s receipt of the Products shall constitute a waiver of any claims for delay. Key Instruments will use all reasonable efforts to comply with Purchaser’s request as to method of shipment, but Key Instruments reserves the right to use an alternate method of transportation or route of shipment if substantial delay might otherwise occur. In such cases Key Instruments will notify Purchaser of such changes as soon as reasonably possible. If the Purchaser declines or is unable to take delivery at the time(s) specified, Key Instruments will have the Equipment stored for Purchaser’s risk and account, and the Equipment shall be considered “shipped” and the final invoice shall be issued and due.

7. TAXES. The price does not include any present or future federal, state, national or local property, license, privilege, sales, use, VAT, GST, gross receipt, withholding or other excise, transportation, occupational, like taxes or assessments, or duties or import/export fees or charges, which may be applicable to, measured by, imposed upon or result from this transaction or any services performed in connection therewith. Any such taxes or charges itemized separately to Purchaser on Key Instruments’s Quotation, Order Acknowledgment or invoice shall be paid promptly to Key Instruments. In addition, Purchaser shall reimburse Key Instruments and hold Key Instruments harmless for all such duties, taxes and charges which Key Instruments is required to collect or remit to applicable customs and tax authorities (including any interest or penalties thereon), whether prior to or following shipment. All other duties and taxes incurred by the Purchaser as a result of the purchase of the Products or otherwise through performance of the contract shall be the Purchaser’s responsibility to pay directly to the proper customs and taxing authority. Key Instruments will accept a valid exemption certificate from Purchaser, if applicable; provided, however, that evidence of Purchaser’s tax exemption status must be provided to Key Instruments prior to shipment.

8. SPECIFICATIONS. Key Instruments reserves the right to discontinue Products, modify designs, substitute materials and change specifications and/or dimensions without notice and without incurring any liability. Unless specifically agreed by Key Instruments in writing, it does not warrant compliance of and Products with Purchaser’s individual project specifications.

9. NO RETURNS. All Products and Services provided by Key Instruments to the Purchaser are provided to the specifications requested by the Purchaser. These Products and Services cannot be returned to Key Instruments and sold to another customer as they are Purchaser specific. As such, no Products and Services can be returned to Key Instruments and no credit shall be issued to any Purchaser for Products and Services not accepted.

10. INDEMNIFICATION. Purchaser shall be solely responsible for, and shall indemnify and hold Key Instruments, and its agents, trustees, officers, directors, employees, agents, successors and assignees free and harmless from, any and all claims, damages or lawsuits (including attorneys’ fees) arising out of the acts or omissions of Purchaser, or its employees, contractors or agents and from any claims or liabilities arising out of or connected to any (a) breach by Purchaser of its obligations under these Terms, including, without limitation, any penalties, interest, attorneys’ fees and disbursements incurred by Key Instruments or any person relying upon Purchaser’s obligations under these Terms, and/or (b) any claims or liabilities, whether brought by Purchaser or a third party, including but not limited to tort or personal injury with respect to Key Instruments’s Services and Products.

11. LIMITED WARRANTY / REMEDY FOR DEFECTS IN WORKMANSHIP. Key Instruments guarantees that the Services and Products that it provides are free from defects in workmanship, and conform to the Purchaser’s specifications for a period of thirty (30) days from the date of invoice.

12. CONFIDENTIALITY. Any proposals, prints, brochures, drawings, pricing quotations, or other information furnished by Key Instruments and marked as Confidential or communicated to Purchaser as Confidential are intended for confidential use by Purchaser, shall remain the property of Key Instruments, shall not be disclosed or used other than for the purposes specified under these Terms, and are protected against unlawful use or disclosure by common law and federal and state statutes that cover copyright, patents, trademarks, and trade secrets. Any unauthorized use, printing, copying, disclosure or dissemination of such information may be subject to legal restriction or sanction.

13. PROMOTIONAL MATERIAL. All of Key Instruments’s drawings, descriptive matter, weights, dimensions, the descriptions and illustrations contained in Key Instruments’s catalogs, price lists, website or advertisements, are approximate only and intended merely to give a general idea of the goods described therein and shall not form part of this contract. Because Key Instruments is continually researching and improving its products, it reserves the right to modify its designs and specifications without notification.(a) This limited warranty shall exist for any particular defect only if: (i) the Customer gives written notice of the defect to Key Instruments within five (5) days after the Customer first can determine that the Products are defective and in no event later than fifteen (15) days after delivery; (ii) Key Instruments has the right to inspect the Products at any reasonable time; and (iii) Key Instruments determines to its reasonable satisfaction on inspection that the Products are, and have been, subjected only to ordinary use and service. (b) This limited warranty is strictly limited to correction of defects in Key Instruments workmanship. This limited warranty does not include products that have defects or failures resulting from the Purchaser’s design of the Products, accident, disaster, neglect, abuse, misuse, improper handling, alterations, modifications or repairs by the Purchaser or third parties, or defective Purchaser-provided test equipment or test software. The Purchaser bears all design responsibility for the Products. (c) The Purchaser’s sole and exclusive remedy against Key Instruments regarding defective Products shall be limited to Key Instruments’s repair of the Products having a defect in workmanship or not conforming to the specifications. KEY INSTRUMENTS MAKES NO REPRESENTATION, COVENANT OR WARRANTY WITH RESPECT TO THE EXTENT OR ENFORCEABILITY OF THE MANUFACTURER’S OR LICENSOR’S WARRANTY. (d) THIS LIMITED WARRANTY IS IN LIEU OF ANY OTHER WARRANTIES EITHER EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. KEY INSTRUMENTS MAKES NO WARRANTY WHATSOEVER CONCERNING COMPONENT DEFECTS. The Purchaser acknowledges that Key Instruments is acting solely as a purchaser of the components sold by the component distributor and that the manufacturer, licensor or distributor of the components is solely responsible to the Purchaser, Key Instruments, and to third parties for all liability, claims, damages, obligations and cost and expenses related to the components. The Purchaser agrees to look solely to the manufacturer, licensor or distributor of the components for breaches of the manufacturer’s or licensor’s warranty and/or for any maintenance, support, repair or replacement of the components.

14. PATENTS; TRADEMARKS; COPYRIGHT; and LICENSE NOTICE. Key Instruments retains all proprietary rights in and to all intellectual property, including designs, engineering details and other data and information pertaining to all products sold hereunder, except to the extent rights are expressly granted under a separate written license agreement signed by an authorized legal or business representative of Key Instruments. Whether or not covered by a registration or application, all Key Instruments patents, trademarks, trade secrets, know-how, domain names, copyrights, trade names and/or logos associated with Key Instruments Products and Services or with Key Instruments business are the sole property of Key Instruments. Unless otherwise specified, all materials containing logos, graphics, marks, icons and images associated with or of Key Instruments, as well as the selection, assembly, and arrangement thereof, are the sole property of Key Instruments or the companies it represents. No materials may be copied, reproduced, modified, republished, uploaded, posted, transmitted, or distributed in any form or by any means without prior written permission from Key Instruments. All rights not expressly granted herein are reserved. Any unauthorized use of the materials may violate copyright, trademark and other applicable laws and could result in criminal or civil penalties.

15. ENGINEERING SERVICES. Key Instruments may provide commissioning or engineering services in connection with the Products pursuant to an Order accepted by Key Instruments. All services will be provided at Key Instruments’s then current rates and will be invoiced and paid on a monthly basis unless mutually agreed otherwise in writing. Any control programs developed by Key Instruments pursuant to programming services constitute Key Instruments’s proprietary property and will be owned by Key Instruments and licensed to Purchaser in perpetuity for Purchaser’s use solely in conjunction with the Products. Key Instruments warrants that the services will be performed in a professional workmanlike manner. Purchaser’s sole and exclusive remedy, and Key Instruments’s sole and exclusive liability for any breach of this service warranty is re-performance of such Key Instruments services, as necessary. Purchaser must notify Key Instruments of the breach within 30 calendar days of the service. The service warranty does not include any travel expenses incurred by Key Instruments which will be invoiced monthly. In no event shall Key Instruments be liable for indirect, special, incidental, punitive or consequential loss or damages of any kind, however caused, or any punitive, exemplary or other damages whatsoever based in contract, warranty, tort or otherwise. No action arising out of or in anyway connected with the services furnished by Key Instruments may be brought by Purchaser.

16. DISCLAIMER AND LIMITATION OF LIABILITY. IN NO EVENT SHALL KEY INSTRUMENTS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER BASED IN CONTRACT, WARRANTY, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUE, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF CAPITAL COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, LABOR OR OTHER CONSTRUCTION COSTS, CLAIMS OF THIRD PARTIES AGAINST PURCHASER, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THIS PRODUCT OR RELATING DIRECTLY OR INDIRECTLY TO SERVICES RENDERED BY KEY INSTRUMENTS, EVEN IF KEY INSTRUMENTS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO CASE SHALL KEY INSTRUMENTS’S LIABILITY, WHETHER BASED IN CONTRACT, WARRANTY, TORT OR OTHERWISE, EXCEED THE AMOUNT OF THE APPLICABLE PURCHASE PRICE ALLOCABLE TO THE SPECIFIC EQUIPMENT WHICH GIVE RISE TO CLAIM FOR DAMAGES, LESS ANY DEDUCTION FOR USE BY THE END USER.

17. FORCE MAJEURE. Key Instruments shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Key Instruments, which causes shall include, without limitation, acts of God, acts or omission of the Purchaser, acts of civil or military authorities, fire, strikes, power surges or outages, epidemics, quarantine restrictions, flood, earthquakes, riot, war, delays in transportation or inability to obtain necessary labor, materials or supplies. In the event of any delay, the set date of delivery, if any, shall be extended for a reasonable period, or at Key Instruments’s sole option, the Agreement may be terminated.

18. GOVERNING LAW. The Agreement and performance by the parties hereunder shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania. Any dispute hereunder shall be determined in accordance with the laws of the Commonwealth of Pennsylvania, and any claim or lawsuit resulting from the Agreement shall be filed in the Court of Common Pleas of Bucks County, Pennsylvania.

19. AMENDMENT TO TERMS AND CONDITIONS. Key Instruments may amend these Terms at any time by posting a revised version of same on its website at www.Key Instruments.com. The revised version will be effective at the time Key Instruments posts it and provides notice thereof to the Purchaser. In the event that the revised version includes what is reasonably determined to be a material change, Key Instruments must provide the Purchaser with written notice of at least ten (10) days and such material change will not become effective until the expiration of the ten (10) day period unless accepted earlier by the Purchaser.