TERMS AND CONDITIONS OF SALE

The following Terms and Conditions of Sale (the “Terms”) are applicable to the provision of all products supplied and/or services rendered (“products”) by WEG Commercial Motors, a Georgia limited liability company (“WEG Commercial Motors”), to any purchaser, or in the case of sample products or material, recipient, thereof (“Purchaser”).

A. CONTROLLING TERMS AND CONDITIONS

1. WEG Commercial Motors’ offer for sale of products and Purchaser’s acceptance of any such offer is governed exclusively by these Terms and, if applicable, WEG Commercial Motors’ standard or custom product specifications, unless otherwise agreed in writing signed by WEG Commercial Motors. If an order is deemed to be an offer by Purchaser, WEG Commercial Motors’ acceptance of such offer is expressly conditioned on Purchaser’s assent to these Terms. Any additional, different, or conflicting terms proposed by Purchaser in any offer, acceptance, confirmation (including any Purchaser purchase order or specifications) or otherwise, (a) are requests for material alterations to these Terms, (b) are hereby rejected and objected to by WEG Commercial Motors, and (c) will not be binding in any way on WEG Commercial Motors.  There are no agreements, promises or understandings, either verbal or written that are not fully expressed in the Terms.  No statements, recommend-ations or assistance by either party have been relied upon by either party or shall constitute a waiver by either party of any of the provisions hereof.
2. The Terms may be amended or altered only if agreed to in writing, signed by the party against which any such amendment or alteration is asserted.

B. PRICE & PAYMENT TERMS

1. All prices and discounts are subject to change by WEG Commercial Motors, without prior notice, effective with WEG Commercial Motors’ publication of its revised price list or discount schedule applicable thereto, or, in lieu thereof, written notification by WEG Commercial Motors to Purchaser.  Prices and discounts applicable to unshipped quantities of existing orders, as well as to new orders, shall be those in effect at the time of shipment.
2. A representation by Purchaser of facts, upon which WEG Commercial Motors relies in basing an applicable discount or term of sale, shall be taken as a represent- ation that such facts are true; and WEG Commercial Motors shall have the right to revise any price or discount, including products already shipped, invoiced, or paid, should such representations be untrue
3. All prices are Ex-Works WEG Commercial Motors’ facility and do not include, any federal, state, or local income, property, sales, use, excise, value added, or other taxes, all of which shall be the responsibility of Purchaser.
4. All orders are subject to the approval of WEG Commercial Motors.
5. Purchaser will pay for all products on a net thirty (30) day basis. from date of shipment, without discount.

 C. DELIVERY

1. Shipments shall be made by common carrier, unless otherwise agreed to in writing by Purchaser and WEG Commercial Motors.  Special arrange-ments, such as air freight, UPS, or overnight delivery and special packaging requirements, should be specifically requested by Purchaser and if agreed to in writing WEG Commercial Motors, will be at Purchaser’s expense.
2. WEG Commercial Motors will use commercially reasonable efforts to meet the delivery dates, specifications, and quantities as set forth in Purchaser’s purchase order.  WEG Commercial Motors will not, however, be liable for any loss, cost, expense, delay, damage, inconvenience, or consequential damages for failure (however caused) to meet a specific shipping date, or for any delay, loss, or damage in transit, or due to the unavailability of sufficient products to fill the order.  WEG Commercial Motors reserves the right to, at its sole and absolute discretion, allocate available inventories among its customers, including Purchaser, in the event that such inventories are inadequate to meet demand.
3. Title to the product shipped shall pass to Purchaser when WEG Commercial Motors delivers such products to the carrier for delivery to Purchaser, and all risks of damage, loss, or delay shall thereupon pass to Purchaser.

D. RETURN OF PRODUCT

Upon Purchaser’s receipt of shipment, Purchaser shall immediately inspect the products. Unless Purchaser provides WEG Commercial Motors with written notice of any claim for shortage, defect or nonconformity in the products within ten (10) business days after receipt of shipment, such products shall be deemed finally inspected, checked and accepted by Purchaser.  No product shall be returned without written authorization and shipping instructions first having been obtained from WEG Commercial Motors.  In the event such authorization is granted in writing by WEG Commercial Motors, Purchaser shall assume all risk of loss of such returned products until actual receipt by WEG Commercial Motors and shall prepay all transportation charges.

E. WARRANTIES AND LIMITATIONS

1. WEG Commercial Motors warrants that its products will be free from defects in materials and workmanship at the time of shipment, will perform consistently with samples previously supplied and will conform to the specifications published or agreed to between Purchaser and WEG Commercial Motors.
2. Warranty Period:
3. a)  New Electric Motors – The existence of a defect in a product sold by WEG Commercial Motors as a new electric motor must appear within the earlier of twelve (12) months from the date of installation, but in no event beyond Twenty Four (24) months from the date of manufacture.
4. b)  New Partial Motors – The existence of a defect in a product sold by WEG Commercial Motors as a new electric motor less a main frame or end frame must appear within the earlier of the date Purchaser has completed assembly of such partial motor in Purchaser’s unit or twelve (12) months from the date of manufacture of the partial motor by the company.
5. Any WEG Commercial Motors’ product which WEG Commercial Motors determines to be defective within the warranty period shall be repaired or replaced F.O.B. WEG Commercial Motors’ facility, or the purchase price theretofore paid refunded, at WEG Commercial Motors sole election.  No allegedly defective product shall be returned to WEG Commercial Motors, however, without WEG Commercial Motors’ prior written authorization and shipping instructions.
6. THE WARRANTY STATED IN THIS SECTION E IS IN LIEU OF ALL OTHER WARRANTIES WRITTEN, ORAL, STATUTORY, EXPRESS, OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. Without limiting the generality of the foregoing exclusion, if the products are made according to Purchaser’s specifications, WEG Commercial Motors does not warrant the adequacy of such specifications or that the product will perform in accordance with such specifications.
8. The warranty stated in this Section E does not apply to products that have been subject to misuse (including use in a manner inconsistent with the design of the product), abuse, neglect, accident or improper installation or maintenance, incorrect electrical connection, unsuitable power supply or environmental conditions, or to products that have been altered or repaired by anyone other than WEG Commercial Motors or its authorized representative.  This warranty does not cover shipping expenses to and from WEG Commercial Motors’ factory or other destination designated by WEG Commercial Motors for repair or replace- ment of defective product or any tax, duty, custom, inspection or testing fee, or any other change of any nature related thereto, nor does it cover the costs of disassembling, or removing defective equipment or reassembling, reinstalling, or testing repaired or replaced equipment or finishing the reinstallation thereof.

F.  LIMITATIONS OF LIABILITY; CONSEQUENTIAL DAMAGES DISCLAIMER

1. Nuclear Use Disclaimer – Products sold by WEG Commercial Motors are not intended for use in connection with any nuclear facility or activity.  If so used, WEG Commercial Motors disclaims all liability for any nuclear damage, injury or contamination, and Purchaser shall indemnify and hold WEG Commercial Motors, it officers, agents, employees, successors, assigns and customers harmless from and against any and all losses, damages or expenses of whatever form or nature (including attorneys’ fees and other costs of defending and action) which they or any of them may sustain or incur, whether as a result of breach of contract, warranty, tort (including negligence) or otherwise, by reason of such use.
2. Consequential Damage Disclaimer – WEG Commercial Motors’ liability with respect to products proved to its satisfaction to be defective within the warranty period shall be limited to repair, replacement or refund as provided in Section E hereof, and in no event shall WEG Commercial Motors’ liability exceed the purchase price of the equipment involved.  WEG Commercial Motors shall not be subject to any obligations or liabilities, whether arising out of breach of contract, warranty, tort (including negligence) or other theories of law, with respect to products sold or services rendered by WEG Commercial Motors, or any undertakings, act or omissions relating thereto.  Without limiting the generality of the foregoing, WEG Commercial Motors specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of equipment or any associated equipment, cost of capital, cost of substitute products, facilities or services, downtime, shutdown, or slowdown costs, or for any other types of economic loss, and for claims of Purchaser’s customers for any such damages.

WEG COMMERCIAL MOTORS SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER EVEN IF THE REPAIR OR REPLACEMENT REMEDY SHALL BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE UNDER SECTION 2-719 OF THE UNIFORM COMMERCIAL CODE, WEG COMMERCIAL MOTORS SHALL HAVE NO LIABILITY TO PURCHASER FOR CONSEQUENTIAL DAMAGES, SUCH AS LOSS PROFITS, LOST REVENUE, DAMAGE TO OTHER EQUIPMENT OR LIABILITY OR INJURY TO A THIRD PARTY.

 G. INDEMNIFICATION BY PURCHASER

Purchaser shall indemnify, defend and hold WEG Commercial Motors and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from and against any and all fines, penalties, suits, actions, claims, liabilities, judgments, losses, damages, costs and expenses (including attorneys’ fees) resulting or arising from (a) Purchaser’s negligence or willful misconduct, (b) Purchaser’s use, sale, handling, storage, or disposal of the products or any product or waste derived therefrom, (c) the infringement (whether actual or alleged) of any intellectual property of any third-party with respect to any products for which Purchaser has supplied manufacturing specifications, or (d) Purchaser’s breach of its obligations under the Terms or the related purchase order. The foregoing shall apply, without limitation, to injury to person (including death) or damage or harm to property or the environment. This indemnity shall not apply to any fine, penalty, suit, action, claim, liability, judgment, cost or expense caused solely by WEG Commercial Motors’ gross negligence or willful misconduct, but shall apply where there is concurrent negligence or willful misconduct on the part of WEG Commercial Motors and Purchaser in proportion to Purchaser’s negligence or willful misconduct.

2. In addition to and not withstanding any other remedy to which WEG Commercial Motors may be entitled by law in the event of Purchaser’s breach of its obligations hereunder, or if Purchaser should cancel its order, whole or in part, or refuse to accept the products shipped in accordance therewith, or wrongfully rejects or revokes its acceptance of products shipped, WEG Commercial Motors, shall be entitled to recover all special engineering, design, tooling, manufacturing, storage, or transportation  costs incurred in connection with WEG Commercial Motors’ performance of the applicable purchase order.

 H. INFRINGEMENT

With respect to WEG Commercial Motors’ own standard designs and specifications, or specialty products which it has engineered and designed, WEG Commercial Motors shall defend, indemnify and hold Purchaser harmless from and against any loss, damage, costs or expenses arising out of any third party claims of patent or trademark infringement relating to such products, so long as Purchaser promptly notifies WEG Commercial Motors in writing of any such claim and gives WEG Commercial Motors such authority, information and assistance as it may request in connection with the defense thereof.

 I. QUOTATIONS

Quotations by WEG Commercial Motors shall be deemed to be offers by WEG Commercial Motors to sell products described therein subject to the Terms, and acceptance of such offers is expressly limited to acceptance by Purchaser of the Terms within 30 days from the date of the quotation or as specified.  Purchase orders submitted by Purchaser for the Products quoted by WEG Commercial Motors shall be subject to and will be deemed to constitute acceptance of these Terms.

 J. SPECIAL TOOLING

Any special tools, dies, jigs, molds, or other equipment manufactured or purchased by WEG Commercial Motors in order to fulfill any purchaser order issued by Purchaser, regardless of whether included as part of WEG Commercial Motors’ pricing, shall remain WEG Commercial Motors’ exclusive property, unless otherwise provided herein.

 K. FORCE MAJEURE

WEG Commercial Motors shall not be liable for failure to deliver or to perform its contractual responsibilities if due to causes beyond its reasonable control or the reasonable control of its suppliers, or due to acts of God, acts of civil or military authority, judicial action, fires, strikes, floods, wars, transportation delays, or inability due to causes beyond its reasonable control to obtain necessary labor, materials or manufacturing facilities.

 L. APPLICABLE LAW

The sale of products hereunder shall be governed, interpreted and construed by and in accordance with the internal substantive laws of the State of Ohio, United States of America, without regard to the conflict of laws provisions thereof, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising hereunder shall be resolved in the United States federal courts serving Cleveland, Ohio, U.S.A. or in the courts of the State of Ohio, as may be applicable. Such courts shall have exclusive jurisdiction and venue for resolution of all such disputes and the parties hereto do hereby irrevocably submit to such jurisdiction and venue, and waive any objection to the contrary hereafter.

 M. TRADE COMPLIANCE

1. EXPORT CONTROL REGULATIONS.  The products that are the subject of this document and related technology are subject to export and re-export restrictions under U.S. and other countries’ export control regulations, including without limitation the U.S. Export Administration Regulations, regulations of the U.S. Office of Foreign Asset Control and comparable laws and regulations of other countries, which may require U.S. or other government approval for any re-export or retransfer (“Export Control Regulations”). Buyer warrants that it (a) will adhere to and comply with (i) all applicable Export Control Regulations and (ii) any applicable terms, conditions, procedures and documentation requirements made known to Buyer that may be promulgated by WEG Commercial Motors from time-to-time to comply with the Export Control Regulations; (b) will not, directly or indirectly through a third party, ship WEG Commercial Motors materials to Cuba, Iran, Libya, North Korea, Syria, Sudan or any other country subject to trade embargoes in violation of Export Control Laws. Buyer acknowledges that WEG Commercial Motors will not proceed with a shipment when WEG Commercial Motors knows that the WEG Commercial Motors products in that shipment are destined for a sanctioned country. Buyer represents that neither Buyer nor any of its principals, officers, or directors, or any person or entity known to Buyer to be directly involved in this transaction as freight forwarder, customer, end-user, consultant, agent or otherwise is designated on any of the U.S. government restricted parties lists, including without limitation the U.S. Commerce Department Bureau of Industry and Security Denied Persons List, Entity List or Unverified List, the U.S. Treasury Department Office of Foreign Asset Controls Specially Designated National and Blocked Persons List or the U.S. State Department Directorate of Defense Trade Controls Debarred Parties List or restricted parties lists of any country having jurisdiction over Buyer or the transaction involving the products that are the subject of this document or related technology.

2. ANTIBOYCOTT PROVISIONS – Buyer will not request of WEG Commercial Motors information or documentation where the purpose of such request is to support, give effect to or comply with a boycott of any country in contravention of the laws or policies of the United States, including but not limited to the Arab League boycott of Israel. WEG Commercial Motors hereby rejects any such request by Buyer and will report receipt of any such request to the relevant U.S. government office, as required by law.

3. ANTICORRUPTION AND ANTIBRIBERY – In relation to any transaction involving the products that are the subject of this document or related technology, Buyer shall not seek to obtain or retain business or gain any other advantage by making or offering to make any payment of money or by providing or offering to provide anything of value, directly or indirectly, to: (i) any government official; or (ii) any non-governmental person, in either case with the intent that such official or person will perform their responsibilities improperly. Buyer warrants that it will comply with the anticorruption laws and anti-bribery laws of any country having jurisdiction over Buyer or the transaction involving the products that are the subject of this document or related technology, and will in all cases comply with the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act.

4. NONCOMPLIANCE.  In the event that WEG Commercial Motors reasonably believes that any provision of this Clause 7 has or may have been breached, Buyer shall cooperate fully with WEG Commercial Motors’ investigation to clear the matter and WEG Commercial Motors shall not be obligated to sell or provide products or technology or take any other act in furtherance of any transaction or agreement while such investigation is pending and such suspension or forbearance by WEG Commercial Motors shall not constitute breach of any obligation in respect of the transaction to which this document applies or otherwise.