Terms & Conditions of Sale

These terms and conditions of sale (“Agreement”) are applicable to any order placed with and accepted by Brook and Whittle Limited (referred to herein as “Seller”):

1. AGREEMENT: Supplier, upon acceptance of an order placed by Buyer, will supply the products and services specified in the order to Buyer, pursuant to the terms and conditions of this Agreement and its exhibits. Supplier’s acceptance of such order submitted by Buyer is expressly limited to the terms and conditions of this Agreement. Terms additional to or different from these terms and conditions, including but not limited to terms contained in buyer’s purchase order or buyer’s standard terms and conditions of purchase, are deemed material and hereby rejected unless otherwise accepted by Seller in writing. Orders regularly placed, verbal or written, cannot be canceled except upon terms that will compensate Seller against all costs, expenses and losses incurred by Seller in reliance of the order. Order cancellations must be in writing.

2. QUOTATION: A quotation not accepted within thirty (30) days is subject to review. Estimates are based upon the anticipated hours of work and cost of materials and supplies necessary to produce work in accordance with preliminary copy, style and specifications. The quoted price is exclusive of the following: 1. freight charges unless specifications state otherwise and; 2. any sales, excise or other taxes of any nature whatsoever imposed by any government authority.

3. SHIPPING TERMS: All products will be shipped FOB Seller’s Plant. Risk of loss and/or damage and title to the products will transfer to the Buyer on delivery to the carrier.

4. FREIGHT: Unless a carrier has been specified on the Buyer’s purchase order, Seller will select a carrier for the Buyer, with the express understanding that the carrier is not an agent of Seller. Orders may be shipped in one (1) or more installment(s), which the Buyer agrees to accept and be invoiced for, unless the Buyer has provided Seller with prior, written notification that partial shipments will not be accepted. All products will be packed by Seller in accordance with standard commercial practices. Unless otherwise specified, the price quoted is for a single shipment, without storage, F.O.B. Seller’s plant. Proposals are based on continuous and uninterrupted delivery of complete order, unless specifications distinctly state otherwise. Charges related to delivery from Buyer to Seller, or from Buyer’s supplier to Seller, are not included in any quotations unless specified. Special priority pickup (including air freight) or delivery service will be provided at current rates upon Buyer’s request.

5. PAYMENT TERMS: If credit worthiness has been approved in advance, Seller will grant payment terms of net thirty (30) days. It is then required that the full invoice be paid no later than thirty (30) days from the date of the invoice. All Seller invoices are issued upon shipment of the product or completion of the service.

6. OVER-RUNS AND UNDER-RUNS: Over-runs and under-runs not to exceed 10% on quantities ordered, or any other percentage that Seller agrees to in writing, shall constitute acceptable delivery. Seller will bill for actual quantity delivered within this tolerance. If Buyer requires guaranteed minimum quantities, the percentage of overrun tolerance must be doubled, or additional costs may be charged.

7. WARRANTY: Seller warrants that the goods and services sold hereunder will conform to the description on the face hereof, will be free of defects in material and workmanship, and will be of Seller’s standard quality. This warranty is expressly in lieu of any other warranties, express or implied, including any warranty of merchant ability or fitness for a particular purpose. Seller’s liability under this warranty shall be limited to its option either: 1. to repair or replace the goods or services ordered; or 2. to return the purchase price paid by the Buyer. In no event shall Seller be liable for incidental, special or consequential damages, including profits (or profits lost). Buyer assumes all risk and liability for all loss, damage or injury to person or property resulting from the use of said goods in manufacturing processes or in combination with other substances or otherwise. Claims for defects, damages, or shortages must be made by the Buyer in writing within a period of thirty (30) days after delivery of all or any part of the order. Failure to make such claim within the stated period shall constitute irrevocable acceptance and an admission that they fully comply with terms, conditions, and specifications.

8. RETURNS AND CANCELLATIONS: Seller’s products are made to order. Accordingly, Seller does not permit non-warranty sales returns. In addition, should the Buyer cancel or suspend an order, or reduce a quantity related to any order, then any work already in progress will be delivered and invoiced in accordance with the earlier instruction of the Buyer. Buyer shall make the payment required by such invoice in accordance with these terms and conditions.

9. BUYER MATERIALS: Buyer represents and warrants that any matter it furnishes for performance of services by Supplier 1. does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; 2. is not libelous or obscene; 3. does not invade any persons right to privacy; and 4. does not otherwise violate any laws or infringe the rights of any third party. Buyer warrants that it has the right to use and to have Supplier use on behalf of Buyer any data provided to Supplier or its Affiliates by Buyer including specifically Buyer names, identifying information, addresses and other contact information and related personal information (“Data”).

10. BUYER’S PROPERTY: Seller will maintain fire, extended coverage, vandalism, malicious and sprinkler leakage insurance on all property belonging to the Buyer while such property is in Seller’s possession. Seller’s liability for such property shall not exceed the amount recoverable from such insurance.

11. CONFIDENTIAL INFORMATION: Any information that parties receive or otherwise have access to incidental to or in connection with this order, shall be and remain the property of the disclosing party. Confidential Information shall not include information which: 1. was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; 2. was in the public domain at the time it was disclosed to the Receiving Party; 3. enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; 4. is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; 5. was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or 6. was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used to the extent necessary to perform this Agreement and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the Work hereunder. In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Supplier and Buyer, and in no event shall Supplier acquire and right, title, or interest in and to any materials or information provided to it by Buyer.

12. ASSIGNMENT: Except as otherwise provided, the order and this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.

13. STATUS: Buyer and Supplier are separate entities. Nothing in the order or this Agreement shall be construed as creating an employer-employee or joint venture relationship.

14. COMPLIANCE WITH LAW: Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.

15. RESOLUTION OF DISPUTES: These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of Connecticut.

16. FORCE MAJEURE: Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, pandemics, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.

17. LIMITATION OF LIABILITY: IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND VENDOR’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND THE ORDER SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.