Standard Terms and Conditions of Sale and Limited Warranty

1. AGREEMENT
   Acceptance of Buyer's purchase order is conditional upon Buyeir's assent to the terms and conditions printed herein. Buyer's acceptance of any ESL system or other Product shall be conclusively deemed assent to the terms and conditions herein. ESL's failure to object to any terms or conditions stated in Buyer's purchase orders, forms or other communications from Buyer will not be a waiver of the provisions hereof and no other document, including Buyer's terms and conditions of purchase, will be part of this transaction, unless specifically agreed to in writing by ESL.
2. PAYMENT TERMS
   Unless otherwise agreed by ESL, payment terms are:
   For U.S. domestic sales, at ESL's option, either:
   • 100%, net 30 days from shipment; or
   • 90%, net 30 days from shipment; 10% upon acceptance or net 90 days from shipment, whichever comes first.
   For international sales, at ESL's option, either:
   • 100% wire transfer prior to shipment; or,
   • 90% letter of credit due at sight; 10% letter of credit due upon acceptance or 90 days from shipment, whichever comes first.
   ESL reserves the right to impose a late penalty fee of 1.5% per month for all past due balances. ESL also reserves the right to require C.O.D. payment, a letter of credit, or other security for payment if ESL determines that such terms are required to assure payment to ESL.
3. PRICES
   Unless otherwise provided, all prices are FOB ESL's place of business for domestic sales, and for international sales, Ex Works, INCOTERMS 2000 and prices are exclusive of shipping costs, insurance, and any applicable Taxes (defined below). All price quotations are valid for 30 days unless noted otherwise. Published list prices are subject to change without notice.
4. SHIPMENTS AND TITLE TRANSFER
   All purchase orders are subject to acceptance by ESL. Unless otherwise provided on the attached acknowledgement, all shipments are FOB ESL's place of business for domestic sales; for international sales, shipments are Ex Works, INCOTERMS 2000. Title to all Products shall be deemed to pass to the Buyer upon delivery to the carrier in case of FOB and availability of the Products to the carrier in case of Ex Works at point of shipment. ESL reserves the right to select the method and routing of transportation and the right to make delivery in installments unless otherwise specified at the time of order. ESL will provide estimated shipment dates upon acknowledgement of Buyer's purchase order. Shipment dates on ESL quotations are approximate only.
   
   Buyer shall arrange air ride and temperature-controlled transportation where applicable. Buyer shall assume all risks of loss and responsibility for the cost of shipping and insurance, regardless of the fact that shipping or insurance may have been arranged by ESL on Buyer's behalf. Any freight or delivery charges paid by ESL on shipments to Buyer will be passed on to Buyer, and shall be in addition to the price of goods. ESL has the right to cancel any order or to refuse or suspend shipment for Buyer's failure to meet payment terms on any outstanding invoice.
5. ORDER CANCELLATION FOR CONVENIENCE, SHIPMENT HOLDS AND DAMAGES
   
   • Holds
     Buyer may request a shipment hold with prior written consent from ESL. Buyer may request a shipment hold prior to thirty days from the shipment date listed on the ESL Order Confirmation (or otherwise mutually agreed upon shipment date) at no charge. Because hold Requests within thirty (30) days of shipment would damage ESL in an amount that is difficult to ascertain, Buyer agrees to pay ESL the following percentage of the purchase price as liquidated damages:
     Days before estimated shipping dates
     0-14
     15-30
     

     Percentage of Product Face Value
     5.0%
     2.5%
     
     If a hold lasts for more than 120 days, ESL may cancel the order as of the date of the original hold request and Buyer shall pay the cancellation charge listed below as liquidated damages. Hold and cancellation charges will not exceed 100% of product face value. Buyer acknowledges that such liquidated damages are a reasonable forecast of the loss ESL will suffer upon a prolonged hold, that the damage due to a hold experienced by ESL would be difficult to ascertain, and that no other remedy would be adequate, convenient, or feasible.
   • Cancellations
     Buyer may cancel a purchase order or reschedule a shipment without penalty if the cancellation or reschedule is made more than 90 days from the Estimated Shipping Date (as specified in ES L's Order Verification or other communication). Within such 90 days, purchase orders canceled will be subject to one of the following cancellation charges:
     Days before estimated shipping dates
     30-0
     60-31
     90-61
     

     Percentage of Purchase Order Face Value Cancellation
     100%
     75%
     50%
     
6. GOVERNMENT CONTRACTS
   If any order by Buyer indicates that the purchase is being made for use under a U.S. government contract, those and only those terms and conditions that federal statute, regulation, or rule required in fixed price supply subcontracts covering standard commercial proprietary items and sold to the public shall be deemed incorporated herein by reference. Terms and conditions of the prime government contract that are not so required are not incorporated herein and shall be binding on ESL only if set forth in a separate written document signed by a duly authorized representative of ESL.
7. INSPECTION
   Buyer shall examine each shipment of ESL Product immediately upon receipt and inform ESL of any shortage, visible defect or incorrect product shipments in writing within 7 days of receipt. If no discrepancies are reported by Buyer in writing within 7 days of receipt, the shipment shall be deemed delivered complete and defect free and Buyer may not dispute such shipment.
8. INSTALLATION
   If ESL installs, the Buyer is responsible for providing facilities and utilities per the ESL site requirement guide prior to the arrival of the ESL installation team. In addition, the Buyer is responsible for moving the ESL system components to the installation site and providing the necessary facilities equipment to position it for assembly. All monitoring and controls of utilities are the responsibility of the Buyer. If installation is not performed within 30 days of delivery due to reasons within Buyer's responsibility or control, the system will be deemed accepted.
9. ACCEPTANCE
   The acceptance of systems which do not include custom solutions (applications, engineering, etc.) will be based upon a demonstration of successful running of system using its specific ESL System Acceptance Test ("SAT"). ESL Field Service Engineers ("ESL FSE") will demonstrate the SAT, and Buyer shall cooperate with ESL FSE to facilitate the performance of the SAT. The system will be deemed accepted upon ESL's successful demonstration of SAT. In case of an applicable custom acceptance requirement agreed by ESL (as noted in the final ESL quotation), in addition to SAT, Buyer shall perform the custom acceptance requirement without delay.
   
   After successful demonstration of SAT and (if applicable) custom acceptance requirement, Buyer's representative shall sign ESL's Final Acceptance Record ("FAR"), indicating the start of the warranty period. Failure to sign the FAR shall not delay the commencement of the warranty period.
   
   Notwithstanding the foregoing, unless Buyer has notified ESL of its rejection in writing within 60 days after shipment, Buyer will be deemed to have accepted the Product at the end of such 60-day period.
10. LIMITED WARRANTY
    
    1. Warranty Period. For a new or remanufactured system to be iinstalled by ESL FSE, the warranty period shall be one year from acceptance. For upgrades, the warranty period is 90 days from acceptance.
    2. During the Warranty Period, ESL warrants that:
       1. All Products meet specifications published by ESL appropriate to the model and options purchased as of the shipping date or agreed in writing between Buyer and ESL;
       2. All Products will be free from defects in materials and workmanship or defects due to design (other than any design specified by Buyer); and
       3. The Product complies with all safety and environmental regulations and standards of the United States federal government in effect on the shipping date.
    3. For any failure covered by this limited warranty, ESL shall repair or replace, at ESL's option, the defective system or component. ESL will provide services during normal business hours (Monday through Friday, 8AM - 5PM local time). Additional charges apply for services scheduled during times other than normal business hours. Buyer shall promptly notify ESL of any failure that occurs during the Warranty Period and allow ESL FSE access to the ESL system in its usual working condition and environment for warranty repair or replacements. Failure to provide such notice or access shall relieve ESL of its warranty obligations.
    4. Repair or replacement of a defective system or its component is the sole and only remedy under this warranty. The replacement part may be a new or remanufactured part which is equivalent to new in performance. In case of replacing a defective component, ESL will warrant the replacement part for the remaining Warranty Period or hours carried by the original system.
    5. During the Warranty Period, replacement parts will be shipped on a no-charge basis on condition that all defectives parts must be returned immediately upon receipt of replacement parts. Failure to return the defective parts promptly will result in an invoice for the full price of the replacement part.
    6. Notwithstanding the above, ESL provides no warranties (a) on consumable items as identified by ESL; (b) on any system or portion thereof which is based on the Buyer's design; (c) respecting any larger system of which the ESL Product is only a component; and (d) non-ESL supplied replacement parts.
    7. This limited warranty is void if failure has resulted from:
       1. Misuse, mishandling, accident or neglect, noncompliance with ESL specified system operating environment or operation specifications, abuse and misapplication;
       2. Improper packing or handling of the system during relocation by Buyer;
       3. Unauthorized modification to the system or part, attempts to install or de-install or perform unauthorized maintenance or repair by any person that is not an ESL FSE; or
       4. An act or event beyond ESL's reasonable control and without ESL's fault or negligence, including but not limited to fires, explosions, floods, earthquakes, power outage or inappropriate transportation, acts of God, war or terrorism.
       5. Failure to complete installation of the system within 60 days from date of shipment.
    8. Temperature-controlled and air ride transportation is required for all ESL Products where applicable. Buyer is responsible for any damages caused by inappropriate transportation.
    9. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE. BUYER'S EXCLUSIVE REMEDY FOR BREACH OF WARRANTY IS REPAIR OR REPLACEMENT, AT ESL'S OPTION. ANY LAWSUIT BY BUYER AGAINST ESL, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AFFILIATES, ARISING OUT OF OR RELATING TO WARRANTY CLAIMS REGARDING THE SUBJECT PRODUCT, SHALL BE FILED WITHIN TWO YEARS FROM SHIPMENT OF THE SUBJECT PRODUCT BY ESL.
11. LIMITATION OF LIABILITY
    IN NO EVENT WILL ESL BE LIABLE FOR LOSS OF REVENUE, PROFIT, OR LOSS OF DATA, SUBSTITUTE GOODS, BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES, HOWEVER CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER ARISING OUT OF THE USE OF OR INABILITY TO USE PRODUCTS OR OTHERWISE AND EVEN IF ESL OR ITS SUPPLIERS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL ESL'S OR ITS SUPPLIERS' OR LICENSORS' LIABILITY TO BUYER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF WARRANTY, OR OTHERWISE, EXCEED THE PRICE PAID BY BUYER FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
12. PATENT INFRINGEMENT
    ESL shall defend any lawsuit brought against Buyer to the extent such lawsuit is based on a claim that any Product furnished by ESL to Buyer infringes any patent of the United States, provided that ESL is notified promptly in writing and given full and complete authority, information, and assistance for the defense of the lawsuit. ESL shall not be responsible for any compromise made without its consent or for damages arising out of any suit which Buyer has not given ESL timely opportunity to defend. If an infringement claim is made or if ESL believes a claim is likely to be made, ESL may at its option: (a) modify the Product so that it becomes non-infringing, or (b) remove the Product and refund to Buyer the purchase price less a reasonable allowance for use. ESL shall not have any liability to Buyer under any provision of this clause if: (a) the claim is based upon the interconnection or use of the Product in combination with Product or other devices not made by ESL; (b) the claim was based upon use of the Product in any manner for which it was not desi gned or recommended by ESL; or (c) the infringement arises from a design or specifications provided to ESL by Buyer.
    
    THIS SECTION 12 SETS FORTH ESL'S ENTIRE LIABILITY AND BUYER'S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS RELATING TO ESL PRODUCT OR COMPONENTS.
13. SOFTWARE LICENSE
    Any ESL and third party software or firmware (collectively "Software") delivered by ESL to Buyer hereunder is licensed, not sold. ESL grants to Buyer a non-exclusive, nontransferable license to use the Software only in executable object code and only for the purpose of operating the Product. Buyer may not modify, adapt, translate, reverse engineer, decompile, disassemble or create a derivative work based upon the Software or allow others to do so except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Buyer shall not make or distribute unauthorized copies of the Software, and shall acquire no rights of ownership in the So1ftware. Title to and ownership of the Software and all extensions, enhancements and modifications thereof shall remain at all times with ESL and/or its licensors.
14. INTELLECTUAL PROPERTY OWNERSHIP
    Subject to any license rights expressly granted herein, ESL retains all right, title and interest in all of its patents, trade secrets, trademarks, copyrights, software, inventions, technology, ideas, concepts, know-how, tooling, techniques and other proprietary materials, intellectual property and confidential information.
15. CONFIDENTIALITY
    Buyer understands and agrees that ESL Products embody, utilize or otherwise contain ESL confidential and proprietary information and trade secrets ("Confidential Information"). Certain of the Confidential Information are apparent upon visual inspection of the Products. Other Confidential Information can only be discerned upon observation of the operation or the disassembly of the Products, or by reverse engineering. Except to the extent and in the circumstances expressly provided by law, Buyer agrees, represents and warrants that it shall not (or permit others to) reverse engineer, manufacture, decompile, or create derivative works of, any Products without ESL's prior express written consent. Buyer shall not allow any third party to take possession of or to inspect, obseNe any operation of, or disassemble any Product or any portion of thereof, or take any photograph or recording of the Product or the operation thereof. If as a result of applicable law, Buyer is entitled to decompile the Product in order to obtain information necessary to render the Product inoperable or compatible with other products or software ("Permitted Objective"), Buyer shall first notify ESL of such requirements and give ESL the opportunity to provide the information necessary to achieve such Permitted Objective without undertaking such action. If such information is provided, Buyer must use it to achieve the Permitted Objective only.
    
    Buyer shall use reasonable care, and not less than the same care it exercises with respect to its own confidential and proprietary information, to protect the Confidential Information against unauthorized use, loss, theft or disclosure. Buyer shall not disclose or describe to any third party, directly or indirectly, under any circumstances or by any means, any Confidential Information without ES L's prior written consent. Buyer will not be in breach of this section if disclosure of Confidential Information is made pursuant to subpoena or other compulsory judicial or administrative process, provided that Buyer promptly notifies ESL of such subpoena or other compulsory process, and provides reasonable assistance, so that ESL may seek a protective order or take such other action it deems necessary to protect its interest.
    
    "Confidential Information" does not include any information concerning ESL that Buyer can demonstrate by written evidence (a) is now or becomes generally known to the public by lawful means and without breach of any confidentiality obligation; (b) is disclosed by Buyer with ESL's prior written consent to unrestricted disclosure; (c) was known to and reduced to writing by Buyer without use of any Confidential Information prior to the date of this Agreement; (d) is independently developed by Buyer without use of any Confidential Information; or (e) is lawfully obtained by Buyer from a third party.
16. FORCE MAJEURE
    ESL's performance of any obligation hereunder shall be excused by any event beyond its reasonable control, including without limitation inclement weather, strikes, governmental laws, regulations or interruptions thereof, war, equipment breakdown, interruption of transportation, and delayed deliveries to ESL from ESL's suppliers which delays or prevents ESL's performance or makes performance commercially impractical due to unreasonable difficulty, expense, or risk of injury or loss.
17. EXPORT CONTROL
    Buyer shall at all times comply with the United States laws and regulations governing export control. Buyer shall not use, lease, or sell any ESL Product in any country, or to any purchaser or lessee in any country, other than the country of destination specified in Buyer's order, except in a manner expressly permitted by such laws and regulations.
18. TAXES AND DUTIES
    Unless provided otherwise, prices do not include federal, state, l local, or foreign taxes, charges, fees, imposts, levies, duties, or other assessments of any kind or nature imposed by any government ("Taxes"). Buyer shall be responsible for payment of all Taxes on the sale of the Products.
19. INDEMNIFICATION
    Buyer shall indemnify and hold ESL harmless, including costs and attorney's fees, from any claims by employees, distributors, or customers of Buyer arising from the sale, lease or use of the Product sold by ESL or of other systems of Buyer which incorporates this Product, unless the claim arises from the sole negligence of ESL.
20. GOVERNING LAW
    The validity, interpretation and performance of these terms and conditions and any purchase made hereunder shall be governed by the laws of the Nebraska, USA, without regard to Nebraska conflict of law principles. Except to the extent that invoking the jurisdiction of another court is necessary to enforce (a) any security interest in Products or (b) any judgment or order entered in Nebraska, any legal action arising out of this purchase and sale shall be prosecuted exclusively in Omaha, Nebraska, USA. Both parties hereby submit to the jurisdiction of the courts located in Omaha and, Nebraska over each of them personally in connection with such litigation, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum.
21. GENERAL
    These terms and conditions constitute the entire agreement between ESL and Buyer. No modifications, changes, additions or amendment to the terms and conditions or promises, representation, or warranties that differ in any way from these terms and conditions herein shall be binding on ESL unless such modifications, changes, waivers, additions or amendments are in writing and signed by a duly authorized representative of ESL.
    
    The waiver of any breach or default hereunder shall not constitute the waiver of any subsequent breach or default. In the event of any default by Buyer, ESL may decline to make further shipments. If ESL elects to continue to make shipments, such action shall not constitute a waiver of any default by Buyer or in any way affect ESL's legal remedies for such default.
    
    If any term or condition hereof shall to any extent be invalid or unenforceable, the remainder of these terms and conditions shall not be affected thereby and each term and condition shall be valid and enforced to the fullest extent permitted by law.
    
    Buyer shall not assign the performance obligations or any rights hereunder without the prior written consent of ESL. Subject to the foregoing, the terms and conditions shall bind and inure to the benefit of the respective parties hereto and their successors and assigns.

ESL Terms and Conditions as of: January 2018