Terms & Conditions

Entire Agreement

As used herein, the term “Seller” shall refer to Akona Process Solutions, Inc., a North Carolina corporation (“Akona”) or the Akona entity identified in the applicable sales quotation submitted to the Buyer (“Proposal”). As used herein, “Buyer” shall refer to the buyer named in the Proposal. No order for Seller’s products (“Products”) or services (“Services”) shall be binding upon Seller until acknowledged in writing by Seller through a written order acknowledgment (“Order Acknowledgment”). The Order Acknowledgment and these Terms and Conditions of Sale (“Terms”) constitute the entire agreement (“Agreement”) between Seller and Buyer. Seller and Buyer are each a “Party” and, collectively, the “Parties.”

Except to the extent that the Order Acknowledgment expressly identifies technical assistance or field services included in pricing set forth in the Order Acknowledgment, the pricing in the Order Acknowledgment does not include Services, including (without limitation) installation or commissioning.

Any purchase order, offer, or counteroffer made by Buyer before or after Seller’s Order Acknowledgment is rejected and all documents exchanged prior to Seller’s Order Acknowledgment are merely preliminary negotiations and not part of any agreement between the Parties. In no event will Seller be deemed to have in any way changed, enlarged, or modified its liabilities or obligations as fixed by these Terms, including (without limitation) situations in which Seller satisfies an order submitted on Buyer’s own purchase order form.

Buyer shall have been deemed to agree to these Terms upon the earlier of: Buyer’s acceptance of Seller’s Proposal, Buyer’s issuance of a purchase order to Seller, Buyer’s receipt of an Order Acknowledgment, or Buyer’s acceptance of delivery of the Products or Services.

2. Payment Terms

Unless otherwise expressly set forth in these Terms or in the Order Acknowledgement, Buyer shall pay all invoiced amounts due to Seller as set forth in Seller’s invoices and the table below. Buyer shall make all payments by wire transfer or check in U.S. Dollars. Check payments shall include an additional 2% processing fee.

Payment Terms	Machines & Controls	Aftermarket & Parts	Field Service & Automation
Down Payment	50%, Net 7	50%, Net 7	50%, Net 7
Progress Payment	25%, Net 7	NA	NA
Balance	25%, Net 30	50%, Net 30	50%, Net 30
Balance Terms	Net 30	Net 30	Net 30
Commissioning	NA	NA	NA
Convenience Fee	5%	5%	5%
Freight Terms	Ex Works	Ex Works	Ex Works

Buyer shall compensate Seller for all late payments with interest payments calculated at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including (without limitation) attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products or performance of any Services if Buyer fails to pay any amounts when due.

All payment terms are subject to credit approval. Price does not include any state or local taxes. Seller reserves the right to collect taxes from Buyer under existing or future law. Title and risk of loss pass to Buyer upon delivery of the Products at the Delivery Point (as defined below); however, Seller shall retain a security interest in the Products until the full amount owed by Buyer is paid. Please note that for credit card payments, a 5% surcharge will be added to cover Seller’s processing costs.

Unless otherwise specified in the Proposal, Field Service and Automation work performed on a time and materials (T&M) basis shall be invoiced monthly based on actual Services rendered to date. Payment terms shall be Net 30 from the invoice date. Typically, no down payment or progress payment is required for T&M work; however, Seller may issue partial progress invoices at its discretion and will do so upon cancellation pursuant to Section 4 below.

For fixed-price Field Service and Automation projects, invoicing may be structured according to project milestones as defined in the Proposal. Milestones may include, but are not limited to, panel shipment, FAT completion, startup, and site acceptance. Alternative invoicing structures must be defined in the Order Acknowledgement.

Buyer shall not withhold payment of any amounts due as a set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.

3. Price

Buyer shall purchase the Products and, if applicable, Services from Seller at the price (“Price”) set forth in the Order Acknowledgment. Notwithstanding the foregoing, the Price shall be subject to adjustment on account of specifications, quantities, shipping arrangements or other changes in the order on the part of the Buyer or any factor beyond the control of Seller that are not part of the Price in the Order Acknowledgment.

If the Proposal includes a predetermined amount of start-up time, it includes only the predetermined amount of startup time specifically described in the Proposal. Seller will furnish, at Buyer’s request, additional time by a competent person for the purpose of startup or field service for the system covered by the Proposal, whose services shall be paid for by Buyer to Seller at the rates listed in the Proposal, together with all overtime, living and traveling expenses, and including all time said person is absent from Seller’s factory on Buyer’s business, which shall be payable monthly upon Seller’s invoice.

All Prices are exclusive of all shipping and handling charges, sales, use, and excise taxes, and any other similar taxes, duties, process controls, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, taxes, costs, and expenses; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets. Where applicable, the amount of any such tax or taxes which Seller may be required to pay or collect may be added to the invoice as a separate charge to be paid by Buyer unless Buyer has furnished Seller with valid evidence of tax exemption that is acceptable to Seller.

All T&M labor rates quoted are valid for 180 days from the date of Order Acknowledgement or up to 90 days from the originally scheduled startup date, whichever is later. Thereafter, rates are subject to adjustment with prior written notice to Buyer

4. Cancellation

Buyer may terminate the Agreement at any time, for any reason or for its convenience, effective upon Seller’s receipt of written notice. In the event of any termination pursuant to this Section, Buyer shall pay, within 30 days from the date of Seller’s invoice: (a) a cancellation charge of 100% of the unit price for all Products ready for shipment per the applicable order; and (b) the material, labor, travel, and administrative costs incurred to- date plus a reasonable margin for all Products and Services where work is in process but not complete or ready for shipment.

5. Limited Warranty

Seller warrants to Buyer that, subject to the remainder of this Section, the Products shall be free from defects in workmanship and material for 12 months from the date of start-up or 18 months from the date of shipment, whichever comes first (“Warranty Period”). Seller further warrants that replacement parts supplied by Seller, at its discretion, shall be free from defects in material and workmanship for a period of 6 months from the date of shipment (“Aftermarket Parts Warranty”). The Aftermarket Parts Warranty applies only to the repair or replacement of a defective part that has been properly installed, maintained, and operated under normal services conditions and liability under this warranty shall not exceed the original purchase price of the part.

Exclusions:

Select Products require seller installation and/or commissioning support Services for limited warranty coverage to apply. These Products include equipment that
requires on-site assembly and/or interconnection of multiple mechanical devices, including (without limitation) drag conveyors and other material handling systems. If Buyer does not engage these recommended Services, Seller reserves the right to determine, at its sole discretion, whether warranty coverage applies.
Normal wear or deterioration due to use, abrasion, corrosion or environmental condition.
Consumable parts and parts subject to wear including (without limitation) gaskets, seals, screens, liners, drive belts, conveyor spirals, conveyor tubes, conveyor cables, chains, discs, and sprockets.
Provision of Services by Seller, including (without limitation) commissioning, maintenance, field troubleshooting, or operator training, shall not constitute an extension of any warranty nor imply a performance guarantee. All Services are provided as-is, on a commercially reasonable efforts basis, and are excluded from warranty coverage unless explicitly stated in the Proposal or Order Acknowledgement.
Any labor, travel, or incidental costs associated with removal, reinstallation, or diagnosis.

EXCEPT FOR THE LIMITED WARRANTY SET FORTH HEREIN, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING NO (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY AS TO MEETING ANY PERFORMANCE STANDARDS OR SPECIFICATIONS NOT EXPLICITLY IDENTIFIED IN THE PROPOSAL OR ORDER ACKNOWLEDGEMENT; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SELLER HEREBY DISCLAIMS ALL SUCH WARRANTIES.

In addition, Buyer acknowledges and agrees that neither Seller nor any of its personnel are licensed (nor will they become licensed) or otherwise authorized by any governmental authority to provide the Services in the applicable jurisdiction where Services may be performed, whether as an engineer or otherwise. Further, if the Services provided include a performance test with respect to any of the Products, the Parties acknowledge and agree that the results of any performance test are based on how the Products performed in Seller’s own testing laboratory and not in Buyer’s facility; accordingly, Seller makes no warranty or assurances of any kind whatsoever that the Products will perform in Buyer’s facility or systems in a manner that is consistent with the results achieved in Seller’s performance test.

Further, the limited warranty set forth is contingent upon Buyer: (a) correctly installing the Products and parts, (b) using the Products and parts only in the manner they were designed to be used and in accordance with all instructions furnished by Seller; and (c) observing good maintenance practices with respect to the Products and parts. Good maintenance practices include (without limitation) Buyer adhering to the preventative maintenance schedules and practices if explicitly described in the relevant instruction manuals provided by Seller, and where no such documentation is furnished, Buyer shall perform and document commercially reasonable preventative maintenance practices in accordance with industry standards. Buyer’s failure to observe any of the foregoing shall render the aforementioned limited warranty null and void.

Seller shall not be liable for a breach of the limited warranty unless: (i) Buyer gives written notice of the defective Products, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty to examine such Products, and Buyer (if requested to do so by Seller) returns such Products to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies that the Products are defective.

The Seller shall not be liable for a breach of the warranty if: (i) Buyer makes any further use of such Products after giving notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products, or use the Products in accordance with applicable instruction manuals; or (iii) Buyer alters or repairs Products without the prior written consent of Seller.

Subject to sections above, with respect to any defective Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate; provided that, if Seller so requests, Buyer shall return defective Products to Seller and Seller shall reimburse Buyer for the reasonable and documented out-of- pocket expenses incurred by Buyer for such return. These remedies are Buyer’s sole and exclusive remedy for any breach of the limited warranty. No parts, components or service time will be provided without a purchase order from the Buyer and Order Acknowledgment from Seller. No charge will be made to Buyer for warranty items; however, Buyer will be billed for goods and/or services not covered by this limited
warranty.

Seller will endeavor to ensure that any supplied Products and components are shipped from its premises clean and free of any broken or loose ferrous and non-ferrous particles. However, Seller advises that it is the Buyer’s responsibility to ensure that the cleanliness of the Products meets requirements prior to start-up and to provide an adequate and reliable method of monitoring their Products.

6. Limitation of Liability

In no event shall Seller be liable to Buyer or any third party for any loss of use, revenue or profit or diminution in value, or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not Seller has been advised of the possibility of such damages.

Seller shall not be liable for costs, damages, or service disruptions resulting from any third-party work performed on or related to Seller’s Products or Services, unless such work is pre-authorized in writing by Seller. Buyer agrees not to pass through charges incurred from unapproved work.

In no event shall Seller’s aggregate liability arising out of or related to the Agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the lesser of (x) the total of the amounts paid to Seller for the Products and Services sold hereunder or (y) $250,000.

The limitation of liability set forth in this Section shall not apply to liability for personal injury, property damage, intellectual property infringement, or breach of any confidentiality agreement between the Parties.

7. Delivery of Products and Performance of Services

a) The Products will be delivered within a reasonable time after Seller’s delivery of an Order Acknowledgement, subject to availability of finished Products, and any stated delivery schedule or date set forth in a Proposal, Order Acknowledgement, or otherwiseis an estimate only and not a commitment to delivery on specific dates. Seller shall not be liable for any delays, loss, or damage in transit, and delay in delivery shall not relieve Buyer of its obligations to accept Products.

b) Unless otherwise stated in the Proposal or Order Acknowledgement, Seller shall deliver the Products Ex Works (EXW Incoterms 2020) to the pickup location set forth in the Order Acknowledgement (the “Delivery Point”) using Seller’s standard methods for packaging such Products. Buyer shall take delivery of the Products within 5 days of Seller’s written notice that the Products have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point and will unload and release all transportation equipment promptly, so Seller incurs no demurrage or other expense.

c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order.

d) If for any reason Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Products have been delivered at the Delivery Point, or if Seller is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall compensate Seller $1,000 per day for storage plus related out-of-pocket costs and expenses.

e) Seller shall use reasonable efforts to meet any performance dates to render the Services (if any) specified in the Order Acknowledgment, and any such dates shall be estimates only.

f) With respect to any Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of the Agreement; (iii) provide such Buyer materials or information as Seller may request to carry out the Services in a timely manner and ensure that such Buyer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

g) Seller shall use commercially reasonable efforts to accommodate reasonable requests by Buyer in advance and in writing to have mutually agreed representatives of Buyer witness, at Buyer’s sole cost and expense and during regular business hours, Seller’s mutually agreed factory tests of Products, subject to appropriate access restrictions as determined in Seller’s sole discretion, if such witnessing can be arranged without delaying the work or otherwise interfering with Seller’s business or operations.

h) Shipments, deliveries, and/or performance of Services shall at all times be subject to the approval of Seller’s credit department and in case Seller shall have any doubt as to Buyer’s responsibility, Seller may decline to make any further shipments and provide further Services hereunder, except upon receipt of satisfactory security or payment in advance.

8. Non-Delivery

a) Seller shall not be liable for any non-delivery of Products unless Buyer gives written notice to Seller of the non-delivery within 5 days of the date when the Products would in
the ordinary course of events have been received.

b) Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.

c) Buyer acknowledges and agrees that the remedies set forth above are Buyer’s
exclusive remedies for any non-delivery of Products.

9. Title and Risk of Loss

Title and risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code.

10. Inspection and Rejection of Nonconforming Products

a) Buyer shall inspect the Products within 30 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Products” means only the following: (i) Product shipped is different than identified in the Order Acknowledgement; or (ii) product’s label or packaging incorrectly identifies its contents.

b) If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.

c) Buyer acknowledges and agrees that the remedies set forth are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided, all sales of Products to Buyer are made on a one-way basis, and Buyer has no right to return Products purchased under the Agreement to Seller.

d) A per diem charge of .05% of the purchase order value of the involved Products or a per diem charge of $50.00 per day, whichever is greater, will be charged for delays created by Buyer to schedule Buyer inspection or acceptance testing. The charge will be computed commencing two weeks after Buyer has been notified of a specific date for inspection or test. Notwithstanding the foregoing, if final inspection of Products is required that includes testing with material, a $250 per diem charge will apply.

11. Indemnification

a) Buyer and Seller (each, an “Indemnifying Party” as applicable) shall each indemnify, defend and hold the other Party, including the other Party’s directors, officers, employees, agents and representatives (the “Indemnified Parties”), harmless from and against any and all demands, claims, actions, causes of action, liabilities, suits, proceedings, investigations or inquiries, or any settlement thereto, and all related expenses, including (without limitation) all litigation expenses (including reasonable attorneys’ fees and court costs) and settlement amounts, that arise from or in connection with, directly or indirectly, the Indemnifying Party’s negligence or breach of this Contract, provided, however, that the limitations of liability in Section 6 above apply to any indemnification under this Subsection..

b) In the event Buyer modifies Products or incorporates Products into another product or component part, Buyer agrees to hold harmless, fully defend and indemnify Seller and Seller Indemnitees from any and all claims, liabilities, losses, penalties, interest, costs, damages and expenses (including attorneys’ fees and litigation costs) involving personal injury or property damage.

c) Buyer assumes all risk and liability for loss, damage or injury to third person or property arising from the use of Products supplied by Seller to Buyer. Buyer agrees to defend, indemnify and hold harmless Seller, including its directors, officers, employees, agents and representatives (collectively “Seller Indemnitees”), against liability or obligations that arise from contract or tort with respect to any indirect or consequential damages, lost profits, overtime, replacement equipment or services, penalties, loss, or damage to Buyer or any third person arising from the use of Products supplied by Seller to Buyer.

d) Buyer agrees to hold harmless, fully defend and indemnify Seller and Seller Indemnitees from and against any and all patent or other intellectual property claims related to (i) any Products made in accordance with Buyer’s designs or specifications; (ii) the use of any drawings provided to Seller by Buyer for use in the manufacture, production or assembly of Products; or (iii) Buyer’s modification of Products or Buyer’s combination of Products with another product, which in either case was not previously authorized by Seller.

12. Confidentiality

All non-public, confidential, or proprietary information of Seller—including, without limitation, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, and rebates—disclosed to Buyer in any form (oral, written, electronic, or otherwise), and whether or not marked or identified as “confidential,” shall be treated as confidential and used solely for purposes related to the Agreement. Such information may not be disclosed or duplicated without Seller’s prior written consent. Upon request, Buyer shall promptly return or securely dispose of all documents and materials provided by Seller. Seller may seek equitable relief, including injunctive remedies, for any unauthorized use or disclosure of such information.

This obligation does not apply to information that: (a) is or becomes publicly available through no breach of the Agreement; (b) was already known to Buyer at the time of disclosure without restriction; or (c) is lawfully received from a third party without a duty of confidentiality.

13. Intellectual Property

Seller and Buyer will each retain ownership of their respective intellectual property. All Seller’s intellectual property, designs, drawings, PLC logic, engineering work, and proprietary know-how remain the sole property of Seller. If any Seller intellectual property is incorporated into the Products or Services provided under this Agreement, Seller grants Buyer a non-exclusive, perpetual, royalty-free license to use Seller’s intellectual property solely for operation and maintenance of those Products or Services. This license is limited to the scope of use required for Buyer’s internal business purposes and does not transfer any broader rights or ownership. Buyer shall not reverse-engineer or replicate any Product.

14. Termination

In addition to any remedies that may be provided under these Terms, Seller may terminate the Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under the Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Seller shall not be required to proceed or continue with performance of the Agreement while Buyer is in default under the Agreement or any other contract or agreement with Seller.

15. Buyer’s Acts or Omissions

If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer, or of Buyer’s agents, subcontractors, consultants, or employees (including any failure by Buyer to timely perform its obligations), Seller shall not be deemed in breach of this Agreement or otherwise liable for any costs, losses, or damages incurred by Buyer to the extent such prevention or delay is caused, directly or indirectly, by such act or omission. In such cases, all delivery and performance timelines for the products and/or services shall be automatically extended to account for the duration and impact of the delay.

If Buyer’s site is not prepared or accessible at the time scheduled for service, Buyer shall remain liable for all labor, travel, and associated expenses, including standby or delay charges, and any additional mobilization charges as reasonably incurred by Seller. Readiness includes site access, utilities, proper permits, and any preconditions identified in quote documentation.

16. Insurance

Akona carries standard general and product liability insurance coverage. Seller will, onrequest by Buyer, provide proof of coverage, including certificates of insurance, andundertake to keep such insurance coverage in full force and effect during the Agreement’s term.

17. Compliance with Law

Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shallmaintain in effect all the licenses, permissions, authorizations, consents, and permitsthat it needs to carry out its obligations under the Agreement.

18. Waiver

No waiver by Seller of any provisions of the Agreement is effective unless explicitly setforth in writing and signed by Seller. No failure to exercise, or delay in exercising, anyright, remedy, power or privilege arising from the Agreement operates, or may be
construed, as a waiver. No single or partial exercise of any right, remedy, power orprivilege precludes any other or further exercise of any other right, remedy, power, orprivilege.

19. Relationship of the Parties

The relationship between the Parties is that of independent contractors. Nothingcontained in the Agreement shall be construed as creating any agency, partnership,joint venture or other form of joint enterprise, employment or fiduciary relationshipbetween the Parties, and neither Party shall have authority to contract for or bind theother Party in any manner whatsoever.

20. No Third-Party Beneficiaries

21. Force Majeure

No Party shall be liable or responsible to the other Party, nor be deemed to havedefaulted under or breached the Agreement, for any failure or delay in fulfilling orperforming any term of the Agreement (except for any obligations of Buyer to makepayments to Seller hereunder), when and to the extent such failure or delay is causedby or results from acts beyond the impacted Party (the “Impacted Party”)’s reasonablecontrol, including (without limitation) the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic or explosion; (c) war,invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or othercivil unrest; (d) government order, law, or actions; (e) national or regional emergency; (f)strikes, labor stoppages or slowdowns, or other industrial disturbances; and (g) othersimilar events beyond the reasonable control of the Impacted Party. The Impacted Partyshall give notice within 30 days of the Force Majeure Event to the other party, statingthe period of time the occurrence is expected to continue. The Impacted Party shall usediligent efforts to end the failure or delay and ensure the effects of such Force MajeureEvent are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In theevent that the Impacted Party’s failure or delay remains uncured for a period of 180consecutive days following written notice, either party may thereafter terminate theAgreement upon 30 days’ written notice.

22. Assignment

Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller. Any purported assignment ordelegation in violation of this Section is null and void. No assignment or delegationrelieves Buyer of any of its obligations under the Agreement.

23. Severability

If any provision of these Terms is found to be, for any reason, unenforceable, such afinding will have no effect on other provisions.

24. Governing Law

All matters arising out of or relating to the Agreement are governed by and construed inaccordance with the internal laws of the State of Delaware without giving effect to anychoice or conflict of law provision or rule that would cause the application of the laws ofany jurisdiction other than those of the State of Delaware.

25. Dispute Resolution

Any dispute arising out of or relating to the Agreement, or breach thereof, shall beexclusively and finally resolved by binding arbitration with the American Arbitration Association (“AAA”) and in accordance with the then current Commercial Arbitration Rules of the AAA., and judgment on the award rendered by the arbitrator may beentered in any court having jurisdiction. There shall be a single arbitrator mutuallyagreed upon by the Parties having no less than 10 years of experience in complexcommercial transactions. In the absence of such agreement, an arbitrator shall beselected according to the then current Commercial Arbitration Rules of the AAA. Arbitration hearings shall take place in Charlotte, North Carolina, USA.

The costs andfees of the arbitrator(s) and the administrative fees of the arbitration shall be borneequally by the Parties. Each Party shall bear its own costs and expenses, includingattorneys’ fees, expert fees, and other costs incurred in connection with any arbitrationproceeding arising under the Agreement, except that, in the event the Seller initiatesarbitration to collect payment due under the Agreement and prevails, the Buyer shallreimburse Seller for all reasonable costs and expenses incurred by the Seller inconnection with the arbitration, including attorneys’ fees, expert fees, and arbitrationcosts.

26. Notices

All notices, requests, consents, claims, demands, waivers, and other communicationshereunder (each, a “Notice”) shall be in writing and addressed to the Parties at theaddresses set forth on the face of the Order Acknowledgment or to such other addressthat may be designated by the receiving Party in writing. All Notices shall be deliveredby personal delivery, nationally recognized overnight courier (with all fees pre-paid),email (with confirmation of transmission), or certified or registered mail (in each case,return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) ifthe Party giving the Notice has complied with the requirements of this Section.

27. Survival

Provisions of these Terms which by their nature should apply beyond their terms willremain in force after any termination or expiration of the Agreement including, but notlimited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Intellectual Property, Limitation of Liability, Indemnification, paymentobligations, Governing Law, Dispute Resolution, and Survival.

28. Drawing Revisions

Buyer is entitled to up to 2 revisions of approval drawings at no additional charge. Anyrevisions requested beyond the second will be billed at a rate of $500 per hour, with aminimum charge of 4 hours per additional revision cycle.

29. Amendment and Modification

These Terms or the Agreement may only be amended or modified in a writing signed byan authorized representative of each Party. Neither the Agreement nor any of itsprovisions may be modified, amended or waived, whether orally, through the Parties’course of performance, course of dealing or course of conduct, or manifested in anyother way, unless in writing and signed by a representative of each Party.

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