TERMS AND CONDITIONS OF PURCHASE

Applicability. This purchase order is an offer by Atkins & Pearce, Inc. (“Buyer”) for the purchase of the goods specified on the face of this purchase order (“Goods”) from the party to whom the purchase order is addressed (“Seller”) in accordance with and subject to these terms and conditions (“Terms”; together with the terms on the face of the order, “Order”). This Order, and any documents incorporated herein, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order. These Terms apply to any repaired or replacement Goods provided by Seller hereunder.

Acceptance. This Order is not binding on Buyer until Seller accepts the Order in writing or starts to perform in accordance with the Order. If Seller does not accept the Order in writing or if it has not commenced performance within 5 business days of Seller’s receipt of the Order, it will lapse. Buyer may withdraw the Order at any time before it is accepted by Seller.

Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (“Delivery Date”). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Seller shall expedite the Goods at Seller’s sole cost and expense.

Quantity. If Seller delivers more or less than the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and accepts the delivery of Goods at the increased or reduced quantity, the Price shall be adjusted on a pro-rata basis.

Title/Risk of Loss. All Goods shall be delivered to the address specified in this Order (“Delivery Location”) during Buyer’s business hours or as instructed. Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.

Shipping Terms. Delivery shall be made FCA Buyer’s facility, set forth on the Order. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide Buyer all shipping documents, including a commercial invoice, packing list, bill of lading, and other documents necessary to release the Goods to Buyer after Seller delivers the Goods to the transportation carrier. The Order number must appear on all documents pertaining to the Order.

Packaging. All goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller shall provide clear instructions on the Goods’ storage requirements.

Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by Buyer.

Inspection and Rejection of Goods. The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer may, with written notice: (a) rescind the Order in its entirety; (b) accept the any portion of the Goods at a proportionally reduced price; or (c) reject the Goods and require replacement. The parties will cooperate in good faith to make Buyer whole. If Buyer requires replacement of the Goods, Seller at its expense, shall replace the nonconforming Goods and pay for all related expenses, including shipping. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 16. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

Price. The price of the Goods is the price stated in the Order (“Price”). If no price is included in the Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price includes all packaging and insurance. Seller must notify Buyer in writing at least 30 days prior to price increases for any Goods covered by an Order or items on Seller’s published price list. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.

Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery in accordance with the Terms. Buyer shall pay all properly invoiced amounts due to Seller within 45 days after Buyer’s receipt of such invoice, except as otherwise set forth in the Order and except for any amounts disputed by Buyer in good faith. All payments must be in USD. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than 3 days prior to the payment due date on the disputed invoice listing all disputed items and providing a detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth herein. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.

Warranties. Seller warrants to Buyer that for 12 months from the Delivery Date, all Goods will: (a) be free from any defects; (b) conform to applicable specifications and requirements specified by Buyer; (c) be fit for their intended purpose; (d) be merchantable; (e) be free and clear of all liens or encumbrances; and (f) not infringe any third party’s intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment for the Goods by Buyer. Any statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, promptly replace or repair such Goods and pay for all related expenses, including return shipping.

Liability/Indemnification. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller. Seller shall defend, indemnify and hold harmless Buyer and its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, damage, liability, claim, judgment, penalty, or expense, including reasonable attorney and professional fees, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the (i) Goods purchased from Seller; (ii) Seller’s gross negligence, willful misconduct or breach of the Terms; or (iii) Buyer’s or Indemnitee’s use or possession of the Goods which infringes or misappropriates an intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

Intellectual Property. Any intellectual property rights of whatever kind created by or relating to the production of the Goods covered by this Order shall belong to and remain the sole property of Buyer. Buyer retains title and all associated rights to any of its intellectual property supplied to Seller, including trademarks, trade names, copyrights, patents, trade secrets, product packaging, materials, manuals, specifications and designs, and all intellectual property contained therein, all of which may not be disclosed to third parties or copied by Seller without Buyer’s prior written consent. All such intellectual property, including copies thereof, shall be returned upon Buyer’s request.

Compliance with Law. Seller shall comply with all applicable laws and regulations. Seller has and shall maintain all the licenses, consents and permits required to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods. Seller assumes all responsibility for shipments of Goods requiring any government import clearance.

Termination. In addition to any remedies provided herein, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or has proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors commenced against it, then the Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.

Last Buy Clause. If Seller intends to change or discontinue any Goods purchased by Buyer, Seller must give Buyer at least 60 days written notice. Buyer shall have the right to submit a “last time buy” order to within 30 days of receipt. The quantities in such order may be up to 6 months’ worth of Goods, based on Buyer’s most recent 12 month average of monthly purchases. All Goods produced pursuant to a “last time buy” order shall conform to the specifications and pricing previously agreed between the parties. Shipments will be delivered in accordance with these Terms and as agreed by the parties.

Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to or delay in exercising any rights or remedy arising from the Order shall be a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise thereof or the exercise of any other right or remedy.

Confidential Information. All non-public, confidential or proprietary information, including specifications, samples, designs, drawings, documents, data, business operations, customer lists, or pricing disclosed by either party, however disclosed, and whether or not marked as “confidential,” is confidential. A party shall be entitled to injunctive relief for any violation of this Section.

Relationship of the Parties. The relationship between the parties is of independent contractors. Nothing shall be construed to create an agency, partnership, or joint venture, and neither party shall have authority to contract for or bind the other party in any manner. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

Governing Law/Jurisdiction. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the Commonwealth of Kentucky without giving effect to any choice or conflict of law provision and excluding the provisions of the CISG. Any proceeding relating to this Order shall be instituted in the federal courts of the United States or the state courts located in Kenton County, Kentucky, and each party irrevocably submits to the exclusive jurisdiction of such courts.

Notices. All communications (“Notice”) shall be in writing and sent to the addresses on the face of this Order or as designated by a party in writing. All Notices shall be delivered by nationally recognized overnight courier, or certified mail (return receipt requested, postage prepaid).

Miscellaneous. If any term or provision of this Order is illegal or unenforceable in any jurisdiction, such illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate such term or provision in any other jurisdiction. Seller shall not assign, transfer or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. The following provisions will remain in force after any termination or expiration of this Order: Warranties, Indemnification, Intellectual Property, Compliance with Law, Confidential Information, Governing Law/Jurisdiction, and Miscellaneous.