Terms & Conditions of Sale

GENERAL:
The following terms and conditions, including those on any Orders or Order Acknowledgments from Progressive Power and Control, Inc. (the “Company”), shall constitute the entire agreement for the purchase and sale of the Company’s products. Any acceptance contained herein is made expressly conditional upon the Purchaser’s assent to the terms which are different from, in addition to, or varythe terms contained in the Purchaser’s purchase order or request for quotations. Such assent shall be deemed to occur upon the failure of the Purchaser to object in writing specifically to such terms or terms within 14 days from the receipt hereof. Any terms and conditions contained in the Purchaser’s purchase order or request for quotation which are different from, in addition to, or varythe Company’s terms and conditions shall not be binding upon the Company, and the Company hereby objects thereto.

CHANGE ORDERS:
(a) Prior to the date of delivery of any product or products hereunder, the Purchaser shall have the right to make changes in its order provided that the Company receives written notice of the desired changes and accepts the same and, provided further, that the Purchaser accepts the additional charges thereof as determined by the Company.
(b) Changes which interfere with or alter the Company’s production schedules will not be acceptable unless the time of performance is extended for such period as deemed necessary by the Company.
(c) Failure of the Company to accept a Purchaser’s request to change its purchase order shall not be cause for Purchaser’s cancellation of its order except upon payment of a cancellation charge of up to 100% of the Invoice amount to be determined by the Company.

CANCELLATION:
(a)The Company shall have the absolute right to cancel this Agreement upon breach thereof by the Purchaser, failure by the Purchaser to make any payment required by this Agreement, or the insolvency or bankruptcy of the Purchaser.
(b) A purchase order or any part thereof which is accepted by the Company may not be cancelled unless and until the Company receives written notice of the cancellation, has determined the additional charge to be made and the same has been accepted and paid by the Purchaser. Upon receipt of cancellation, the Company shall be entitled to take whatever action it deems necessary and advisable to minimize cancellation charges.
(c)  Under any circumstances, re-stocking charges will be determined by the Company as follows: no less than 60 day will result in a 50% restocking fee; no less than 30 day will result in a 75% restocking fee.  Any time under 30 days’ notice may result in a cancellation charge of up to 100% of the Invoice amount as determined by the Company.

WARRANTY:

1. The Company warrants, except as hereinafter provided, each product sold hereunder, which is assembled by it, to be free from defects in assembly under normal use and service for a period of one year after shipment thereof to the original purchaser.
2. THE COMPANY’S WARRANTY EXTENDS ONLY TO PRODUCTS ASSEMBLED BY IT AND IS, TO THE EXTENT PERMITTED BY LAW, IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY PRIOR WRITTEN OR ORAL REPRESENTATIONS REGARDING SUCH PRODUCTS MADE BY THE COMPANY, ITS EMPLOYEES, AGENTS OR REPRESENTATIVES.

(c) PRODUCTS, OR COMPONENTS THEREOF SUPPLIED, BY ANY OTHER PARTY TO THE COMPANY WHICH ARE NOT ASSEMBLED BY THE COMPANY ARE COVERED ONLY BY THE INDIVIDUAL WARRANTY OF SUCH OTHER PARTY AND COPIES OF SUCH WARRANTIES WILL BE FURNISHED UPON REQUEST.
(d) The Company reserves the right to inspect products claimed defective under warranty either at the Purchaser’s location or at the Company’s headquarters. A defective product is not to be returned to the Company’s plant unless authorized by the Company. Products so returned to the Company’s plant, shall be freight prepaid by the Purchaser. Any product proving defective due to faulty assembly within one year from date of shipment will be replaced or repaired free of charge, FOB the Company’s plant, Indianapolis, Indiana. The Company assumes no liability for labor charges incidental to the adjustment service, repairing, removal or replacement of the product or other costs, or for the expense of repairs made outside of its factory except when made pursuant to the Company’s prior written consent. The Company, at its option, may ship a replacement or replacements immediately under standard billing and make warranty adjustments after inspection of the defective product by means of credit memorandum.

DELAYS:
The Company shall not be liable for damages or for delays in performance due to circumstances beyond its reasonable control, including, without limiting the generality of the foregoing, any priority system established by any agency of the United States Government, fires, floods, storms, and other acts of God, accidents, strikes, insurrections, war, shortage ofmaterials, Lack of transportation and failure of performance of subcontractors and/or suppliers for similar reasons. Failure of the Company to perform for these reasons aforesaid shall not be grounds for Purchaser’s cancellation of its order, but the delivery date shall be extended accordingly.

LIMITATION OF LIABILITY:
No claim made hereunder by the Purchaser, whether as to goods delivered or for non-delivery shall be greater than the purchase price of the goods in respect of which such claims is made, and the Company shall under no circumstances be liable for incidental damages, consequential damages, third party claims or personal injury actions.

MISCELLANEOUS:

1. This agreement may not be assigned or otherwise transferred by Purchaser without the prior written consent of the Company, and any such assignment or transfer without prior written consent shall be null and void and of no force or effect whatsoever.
2. The Company’s failure to insist, in one or more instances, upon the performance of any terms of this Agreement shall not be construed as a waiver or relinquishment of its right to such performance or the future performance of such term or terms and Purchaser’s obligation with respect thereto shall continue in full force and effect.
3. Any notice or other communication required or permitted hereunder shall be sufficiently given if sent in writing by registered or certified mail, postage prepaid, to the other party thereto at its respective address first above written. Any such notice, if so mailed shall be deemed to have been received on the third business day following mailing. Either party hereto may change its address by written notice to the other party.
4. The paragraph headings in this Agreement are used for convenience only. They form no part of this Agreement and are in no way intended to alter or affect the meaning of this Agreement.
5. This Agreement may be amended by mutual agreement of the parties hereto by an endorsement to this Agreement signed by each of them.
6. The invalidity, in whole or in part, of any provision of this Agreement shall not affect the validity or enforceability of any other provisions.

(g) This agreement shall be made in, governed by and construed in accordance with the laws of the State of Indiana and any legal action shall be brought in the Superior Courts of Marion County, Indianapolis, Indiana.
(h) All reasonable legal and collection costs will be charged to the customer.
(i)  All remedies applicable under the Uniform Commercial Code will be available to the Company.
(j)  The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereof.
(k)  We hereby certify that these goods were produced in compliance with all applicable requirements of section 6, 7, and 12 of the Fair Labor Standards Act, as amended and of regulations and orders of the United States Department of Labor issued under section 12 thereof.

TAXES:
All applicable federal, state or local sales, use, or excise taxes are the responsibility of the Purchaser and shall be in addition to the price or prices stated on the front side of this document or on any Quotations, Orders or Order Acknowledgments from the Company unless otherwise specifically stated. The Company shall have the right to invoice separately any such tax as may be imposed at a later time. Applicable tax exemption certificates must accompany any order to which the same applies.

PAYMENT TERMS:

1. CASH PAYMENT: Net 30 days. A service charge of five percent (5%) of the invoice amount will be charged on balances which are over 30 days.
2. F.O.B.: Shipping Point unless otherwise stated.
3. Interest:  Interest on balances owed will accrue at the maximum allowable interest on balances on individual invoices which are over 30 days past due.