TERMS AND CONDITIONS
FOR THE PURCHASE OF GOODS

These Terms and Conditions are part of and incorporated by reference in, and are the exclusive terms and conditions governing, any and all Purchase Orders (the “Order”) issued by Phoenix Electric Mfg. Co. (the “Buyer”) to its vendors (the “Vendor”). Any differing or additional terms and conditions are expressly rejected:

1. Acknowledgement
This Order must be acknowledged promptly on our form and without variations as to terms, giving definite date of shipment.

2. Invoices-Order Number
Invoices in triplicate with prices set out and giving the correct Purchase Order Number, together with original Bill of Lading or express receipt must be sent at time of each shipment, otherwise payment of Vendor’s account may be delayed.  The Purchase Order Number shall appear on all Invoices, Boxes, Packages.  Shipping documents, and correspondence, and a list of contents shall be enclosed in each box or package.

3. Time of Delivery
The time of delivery is of the essence of this Order.  Buyer reserves the right to refuse any goods and to cancel all or any part of this Order, if Vendor fails to deliver all or any part of the goods by the date required as specified on the face of this Order.  In such event Buyer shall have the right to purchase elsewhere and charge the Vendor for all costs and expenses incurred by Buyer in obtaining the goods elsewhere and/or hold Vendor liable for all damages, both direct and indirect, resulting from Vendor’s failure to timely deliver.  Early deliveries are subject to Buyer’s prior written approval.

Buyer shall not be liable in damages for failure to accept delivery caused by acts of God, labor disputes, accidents, weather conditions, request of any person or agency exercising governmental authority, war, civil disturbance, interruption of its facilities, or other events beyond its control, during the continuance of such conditions and for a reasonable time thereafter.  During such period Buyer may suspend, reduce or cancel deliveries until normal conditions are restored, or if such conditions continue an unreasonable length of time, Buyer may cancel this Order.

4. Freight Charges
Unless specifically stated to the contrary on the face of this Order, Vendor shall pay all freight charges to the plant of Buyer.  All goods shall be shipped by the method specified on the face of this Order, or if no method isspecified, by the most expeditious method available.

5.  Risk of Loss
Delivery shall not be deemed complete until goods have been actually received and accepted by Buyer, notwithstanding any agreement to pay freight, express or other transportation charges, and the risk of loss or damage in transit shall be upon the Vendor until delivery has been completed.

6. Packing and Cartage
No charge  will be allowed for packing, boxing, or cartage unless agreed upon in writing herein, but damage to any goods not packed to insure their proper protection and all extra expense including transportation and handling occasioned by improper packing shall be charged to and paid by the Vendor.

7. Price of Goods
If the price is omitted from this Order it is agreed that the material shall be billed at the price last quoted or paid, or the prevailing market price, whichever is lower.

8.  Inspection, Acceptance and Warranty
Buyer’s standard for acceptance of product from our Vendors is “Zero” defects.  The cost of defective material and all economic consequences and damages as a result of such defective material shall be the responsibility of the Vendor.  Failure of the Vendor to meet all Buyer specifications will not be tolerated without written deviation from Buyer concerning the specific specification violated.  Vendor warrants that all materials and services furnished hereunder are free from defects in materials and workmanship, conform strictly to the specifications, drawings and samples specified or furnished to Vendor and are suitable for the intended purposed.  These warranties will survive, and are in no manner waived by, any inspection, delivery acceptance, payment and/or use by Buyer or its customers of the materials services and will run to the Buyer, its successors, assigns, customers and users of its products.  Vendor  will protect, indemnify, defend and hold harmless each of Buyer, its successors assigns, customers and users of its products from and against any and all loss, claim, injury and damage suffered by any of them and from and against any and all suits, proceedings in law or in equity and any and  all liability for losses, injuries and damages, including all attorneys’ fees, consultants’ fees, experts fees and court costs arising out of or in connection with any claim by any person, firm or entity (including, without limitation, Buyer) that the materials or services furnished by Vendor are or were defective, infringing or injurious in any manner.

9. Patents, Trademarks, and Copyrights
Vendor agrees to indemnify Buyer and its officers, agents, owners, customers and users of its products and to hold them harmless from  and against all  causes of action, claims, liability, loss, damage and expense, including counsel fees and court costs arising from or by reason of any actual or claimed trademark, patent or copyright infringement, or any litigation based thereon, with respect to all or any part of the goods covered by this Order, and Vendor agrees to defend at its own expense any suits against the Buyer and to absorb the entire cost thereof including any judgment rendered therein, and such obligations shall survive, and not be waived in any manner by, the acceptance of the goods and payment therefore by the Buyer.

10. Compliance with Laws
Vendor represents and warrants that the goods covered by this Order have been manufactured and are being sold in accord with all applicable federal, state, and municipal laws, rules, and regulations.

11. Order Confidential
This Order is confidential between Buyer and Vendor and it is agreed by the Vendor that none of the details connected herewith shall be published or disclosed to any third party without Buyer’s written permission.

12. Subcontracting
Vendor agrees that no part of this Order will be subcontracted without Buyer’s prior written approval.

13. Taxes
The Vendor shall pay any taxes imposed by law upon or on account of the sale of the goods covered by this Order unless otherwise agreed in writing.

14. Tooling
All molds, dies, tools, special fixtures, jigs, patterns, gauges, plates and models, (collectively referred to herein as the “Tooling”), paid for by Buyer are the property of Buyer and are to be delivered to Buyer on demand, are to be maintained in first class operative condition by Vendor at Vendor’s expense, are to be marked in the manner required by Buyer, and are to be disposed of only on Buyer’s written instructions.  No production use of the Tooling shall be permitted except that authorized by Buyer.  Where such Tooling is not made to a design supplied by Buyer, Vendor must furnish drawings and samples prior to production or equivalent reproducibles containing complete specifications.  Buyer shall not be obligated to pay for any Tooling until acceptance by Buyer of the first run of parts fabricated by the same.  Unless there is a written understanding as to the specific number of parts which can be produced from the Tooling, it is agreed that whenever necessary, the Tooling shall be repaired and replaced at Vendor’s expense (notifying Buyer when such replacement is contemplated).  Such property while in Vendor’s custody or control shall be held at Vendor’s risk and Vendor shall be responsible for all loss or damage thereto and shall be responsible for all loss or damage thereto, and shall be kept insured by Vendor at Vendor’s expense in an amount equal to the full replacement cost.  Vendor acknowledges that Buyer is the owner of the Tooling and Vendor has no ownership interest in the Tooling.  Vendor agrees to keep the Tooling free and clear of any and all liens, claims, encumbrances, restrictions and security interests.  Vendor further agrees not to subject the Tooling to any UCC filings and to specifically exclude the Tooling from any UCC filings which encumber other assets or Tooling of Vendor.  Vendor shall, at its own expense, keep the Tooling in a good and safe condition and in good repair.  The Tooling (and any portion thereof) shall be marked and identified as the property of Buyer and shall be made available from time to time for inspection and evaluation by Buyer and its representatives.  The Tooling and the products produced therefrom are confidential and proprietary to Buyer.  Vendor shall not use the Tooling to produce parts for any entity other than Buyer and shall keep all blueprints, specifications and other documentation and information relating to the Tooling and the products produced therefrom confidential and shall not disclose such to any entity other than Buyer.  Upon  the written request of Buyer, Vendor shall within ten (10) days, return the Tooling and all files, blueprints, specifications and other documents and information relating to the Tooling to Buyer in a usable, legible, good and safe condition .

15. Changes
This Order cannot be modified or terminated orally, and no modification or termination of any claimed waiver of any of the provisions hereof shall be binding unless in writing and signed by an officer of the party against who such modification, termination or waiver is sought to be enforced.

16. Cancellation For Nonconformance
Buyer shall have the right to cancel all or any part of this Order without liability to Vendor if the materials or services furnished hereunder do not completely conform to all of Buyer’s specifications.  Upon receipt of such a notice, Vendor will, to the extent directed by Buyer, terminate work under this Order (and any subcontracts expressly authorized by Buyer under Paragraph 12 hereunder) and take all necessary action to protect property in Vendor’s possession in which Buyer has or may acquire an interest.  Buyer shall have the right to charge Vendor for all expenses and costs incurred by Buyer in obtaining the goods elsewhere.

17. Blanket Purchase Orders
If the goods purchased hereunder are to be delivered pursuant to a blanket purchase order, Vendor will not make any shipment or issue any invoices until Buyer issues a specific release.  Unauthorized shipments will be held at Vendor’s risk and expense.  A Blanket purchase order authorizes Vendor to procure raw materials sufficient to meet delivery of the entire quantity of the blanket purchase order, but only to manufacture and deliver such respective quantities at such respective times as is indicated from time to time by Buyer through specifically authorized releases.  Buyer will not be liable for any manufacturing costs before the time or in excess of the quantities specified from time to time on such specifically authorized releases.

18. Limit of Buyer’s Liability
Buyer’s liability for any breach of this order by Buyer shall not exceed the difference between (i) the resale price of any materials or work in progress sold in good faith and in a commercially reasonably manner and (ii) the contract price for such materials or work in progress, less all expenses and costs saved by Vendor as a consequence of Buyer’s breach.  Buyer will not be liable for any incidental, consequential, punitive or liquidated damages or any similar type of punitive or speculative damages.  In no event shall Buyer have any liability for any breach of this Order by Buyer if Vendor is at such time also in breach of this Order.

19. Waiver
No delay or failure by Buyer in exercising any rights under this Order and no partial exercise thereof will constitute a waiver of Buyer’s rights hereunder.  Invoices will be paid pursuant to Buyer’s payment policy.  Discount terms shall begin at the date of receipt of the invoice or the receipt of the material whichever is later.  Stenographic and clerical errors are subject to correction.

20. Conflict
In the event of a conflict or inconsistency between the terms and conditions of this Buyer’s Order form and the terms and conditions contained in any of Vendor’s documents including, without limitation, Vendor’s acknowledgment, the terms and conditions of this Order shall control in all events and circumstances.  Vendor hereby expressly accepts all the terms and conditions contained in this Order and expressly waives all terms and conditions other than those contained in this Order.

21. Damages
Vendor shall be liable for all damages to Buyer if Vendor breaches this Order, either by failure to timely deliver goods, failure to deliver 100% conforming goods or any other breach of this Order.  Such damages shall include, without limitation, damages for lost profits, special, consequential, incidental, punitive and liquidated damages.  Vendor hereby indemnifies, defends and holds Buyer harmless from and against any and all loss, cost, damage, expense and liability including, without limitation, all attorneys’ fees, consultants’ fees, experts fees and court costs incurred by Buyer arising out of, relating to or in connection with Vendor’s actual or claimed breach of this Order.

22. Legal Fees
In any action brought to enforce the terms and conditions of this Order or to remedy any breach hereof, the non-prevailing party shall pay all the court costs, attorneys’ fees and consultants’ fees of the prevailing party.

23. Law Governing/Jurisdiction
This Order shall be governed by and construed according to the laws of the State of Illinois and jurisdiction for any and all claims arising out of or relating to this Order shall reside in Illinois and Vendor consents to jurisdiction in the courts of Illinois and expressly waives any objection thereto.