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 TERMS AND CONDITIONS OF SALE #IE090723STR (INTERNATIONAL)All terms of trade used in this Contract for Sale, or in communications between the parties and related to this Contract for Sale, such as "ex works," shall have the meanings assigned to them in ICC Incoterms, ICC Publication No. 460 (July 1990) or the then-current version thereof. SECTION 1. DEFINITIONS (a) "Buyer" shall mean the purchaser of the Equipment or Services identified in the Contract for Sale of which this is a part of, and its successors and permitted assigns. (b) "Contract for Sale" shall mean these Terms and Conditions of Sale and only those other documents attached hereto that are approved and accepted in writing by a duly authorized representative of Seller. ANY OTHER DOCUMENTS (WHETHER NOW EXISTING OR DELIVERED IN THE FUTURE), AND ANY TERMS AND CONDITIONS IN THOSE DOCUMENTS, THAT ARE NOT SO APPROVED AND ACCEPTED BY SELLER ARE HEREBY OBJECTED TO AND REJECTED BY SELLER. (c) "Effective Date" shall mean the date on which this Contract for Sale shall become effective, which shall be the date on which this Contract for Sale is accepted by Seller. (d) "Equipment" shall mean the equipment that is being sold to Buyer by Seller under this Contract for Sale, as more particularly described in the technical specifications attached hereto in accordance with Section 1(e) hereof. The parties hereto understand and agree that the Equipment will be manufactured for Buyer's specific use to design specifications unique to Buyer, and that, if the Buyer does not perform its obligations hereunder, the Equipment will not be salable by Seller to a third party. (e) "Notice" shall mean notice given in the manner described in Section 19 hereof. (f) "Seller" shall mean STRATCO, Inc., organized and existing under the laws of the State of Missouri. (g) "Services" shall mean the services to be performed by Seller for Buyer under this Contract for Sale. (h) "Subject Plant" shall mean the plant in which the Equipment is to be installed or for which the Services are to be provided. SECTION 2. SPECIFICATIONS; VARIANCES; CHANGES: (a) The Equipment, including that produced to meet an exact specification, shall be subject to tolerances and variations consistent with Seller’s standards and usages of trade and regular practices concerning: dimension, weight, size, composition and mechanical properties, and consistent with normal variations in surface, internal conditions and quality. Seller shall have the right to substitute materials, components and other inputs with materials, components and other inputs of like quality and function in Seller’s discretion. Seller shall not be liable for customary or reasonable variations from specifications. Further, the description of the Equipment (including without limitation any estimates regarding the production volume or other functionality of the Equipment) contained in this Contract for Sale and Seller’s other materials represents an estimate only, and actual results may fluctuate or vary within customary tolerances and variations. Seller also reserves the right to alter the features and design of the Equipment from the features and design described in this Contract for Sale and in Seller’s other marketing materials, and to make other changes to the design, materials or components of the Equipment as is necessary or appropriate to conform the Equipment to applicable requirements of law and to conform the Equipment with considerations of safety, engineering requirements, functionality and other matters. (b) At any time, Buyer may give Seller written notice of its desire to make changes in the technical specifications of the Equipment. Promptly after its receipt of such notice from Buyer, Seller shall give Buyer written notice of the additional charges to Buyer, if any, to make any such changes and any changes to the delivery schedule that may be required. No change request by Buyer shall be effective unless Buyer and Seller agree in writing to Seller's proposed changes in price and delivery schedule. If no written agreement is reached by the parties within fourteen (14) calendar days after Seller's notice of its proposed changes, this Contract for Sale shall continue unmodified as if Buyer had never submitted a change request. SECTION 3. INSPECTION: The parties understand and acknowledge that Seller sub-contracts the manufacture of the Equipment. At Buyer's sole cost and expense, Buyer shall have the right to inspect the principal components of the Equipment and to witness Seller's tests of the principal components of the Equipment prior to delivery of the Equipment (as delivery is defined in Section 4 hereof). Buyer shall exercise such inspection right, if at all, at reasonable times and upon reasonable notice to Seller and in a manner that does not unreasonably interfere with the operations of Seller and its subcontractors. SECTION 4. TITLE TO THE EQUIPMENT, DELIVERY AND INSTALLATION: Seller shall deliver the Equipment to Buyer, and title to the Equipment and all risks of acceptance and loss of the Equipment shall pass to Buyer, F.O.B. at the manufacturer's facilities. Buyer shall be solely responsible for procuring and paying for any insurance Buyer may desire against risk of loss or damage to the Equipment from and after the time at which the Equipment is delivered at its places of manufacture. As a convenience to Buyer, Seller may, on behalf of and at the written request of Buyer, arrange for the inland U.S. transportation of the Equipment, if Buyer furnishes to Seller timely and complete written instructions with respect to the transportation carrier or carriers to be utilized. In the event Seller makes such shipping arrangements for Buyer, any shipping costs incurred by Seller shall be paid by Buyer within thirty (30) calendar days after the date of Seller's invoice therefor. In all cases, Buyer shall assume all risk of loss attendant to that shipment and be responsible for making all claims with carriers, insurers, warehousers and others for misdelivery, non-delivery, loss, damage, delay or otherwise, and Seller shall have no liability in connection with shipment and shall not be considered either the agent of the carrier or Buyer for this purpose. Seller shall have no responsibility for installation of the Equipment. SECTION 5. FORCE MAJEURE: Notwithstanding any other provision of this Contract for Sale or applicable law to the contrary, Seller shall not be liable or responsible to Buyer for any failure or delay in performance or nondelivery, in whole or in part, due to events of force majeure, including, but not limited to, acts of God or of the public enemy; acts of Buyer not within its rights under this Contract for Sale; fire; flood; storm; explosion; earthquake; riots; wars; hostilities; civil commotion; accidents; strikes or other labor shortages or disputes; interruption of supply; shortages of or inability to obtain fuel, power, raw materials or freight or transportation services; any law or regulation; any decision by any judicial or arbitral tribunal or any other acts of any government agency or persons purporting to act with governmental authority; or any other cause beyond the reasonable control of Seller or which Seller is not able to overcome by the use of reasonable measures or which Seller is able to overcome only at substantial expense. SECTION 6. PRICE; PAYMENTS; TAXES: Buyer shall pay Seller the price for the Equipment and Services specified in this Contract for Sale as and when due. Acceptance and endorsement by Seller of any instrument for less than the full amount that Seller claims to be due and payable hereunder shall not be deemed to be an admission of payment in full, and any conditions to the contrary that are noted on any such instrument shall not be binding on Seller. Buyer shall be responsible for and shall pay any and all taxes and all other government charges and other impositions arising from the sale of the Equipment or Services by Seller to Buyer, including, but not limited to, customs tariffs and duties, excise taxes, surtaxes, income, sales, withholding, use and value-added taxes, and all other taxes or levies imposed by any government agency in connection with the transactions contemplated by this Contract for Sale, whether imposed upon Seller, Buyer, or both of them, except for U.S. federal and state taxes imposed on the net income of Seller. The intent of this Section 6 is to ensure that Seller receives the full amount of the purchase price for the Equipment and Services specified in this Contract for Sale by the dates specified in the Contract for Sale, irrespective of any taxes or other levies that may be imposed by any government. SECTION 7. EXPRESS WARRANTY: (a) Seller warrants that it will convey to Buyer good title to the Equipment and that the Equipment, when delivered as provided in Section 4 hereof, (i) will, at the time of delivery hereunder, be new and unused, of good quality and workmanship within generally recognized U.S. industry standards, and be free and clear of any lien, encumbrance or security interest, and (ii) will be free from material defects in material and workmanship under use and service typical for equipment of this type, normal wear and tear and corrosion excepted, for a period of twelve (12) months after the date of initial operation of the Equipment or eighteen (18) months after the date of delivery of the relevant Equipment (as delivery is defined in Section 4 hereof), whichever period expires first (hereinafter, the "Warranty Period"). Buyer's sole and exclusive remedy for breach of this express warranty shall be repair or replacement (with parts selected by Seller in its reasonable discretion as appropriate), at Seller's option, of any part or parts of the Equipment subject to a valid express warranty claim hereunder. The parties hereto contemplate that Seller, in exercising its repair option, will, in virtually all cases, elect to repair any part or parts of the Equipment subject to a valid express warranty claim hereunder at the site of the Subject Plant and not return same to Seller's facilities. Accordingly, the parties agree that Buyer may only ship any part or parts of the Equipment subject to a valid express warranty claim by Buyer back to Seller if Buyer obtains Seller's prior written approval thereof, and, in that case, Seller shall pay shipping charges incurred by Buyer in connection with that shipment. As a condition precedent to any claim for breach of express warranty hereunder, Buyer give Seller Notice of that claim not later than thirty (30) calendar days after Buyer's discovery thereof or the claim shall be deemed waived. (b) THE EXPRESS WARRANTY GIVEN IN SECTION 7(a) HEREOF SHALL BE VOID IF (i) the Equipment has been subject to neglect, accident, incorrect or improper installation, incorrect or improper use, incorrect or improper maintenance, or incorrect or improper repair or storage; (ii) the Equipment is defective due to defective specifications provided by or required by Buyer; (iii) the Equipment has been altered without Seller's prior written consent; (iv) spare or replacement parts have been used in or on the Equipment but were not furnished or approved in writing by Seller; or (v) additional attachments or equipment furnished by someone other than Seller have caused or materially contributed to the defect. (c) Seller warrants that the Services shall be performed in a good and professional manner, and where applicable, in accordance with engineering practices generally accepted in the United States of America. Such warranty shall be in effect for a period of sixty (60) calendar days after the date the relevant Services are performed and any claims by Buyer shall be made only during that period. In the event of a breach by Seller of the foregoing warranty, Buyer's sole and exclusive remedy for that breach is the reperformance of the relevant Services by Seller at Seller's expense, upon Buyer's written request. (d) Seller makes no warranties whatsoever with respect to the useful life of expendable and normal wear parts. Buyer shall be solely responsible for ensuring that the Equipment and Services conform to its particular requirements and to all applicable state and federal laws and regulations, including, but not limited to, environmental and product safety laws and regulations. Notwithstanding any other provision of this Contract for Sale and the documents attached hereto and applicable law to the contrary, the parties acknowledge and agree that (i) Seller has no knowledge concerning laws, regulations and other codes and conditions at the site of the Subject Plant; (ii) any comments that Seller makes to Buyer or any of its affiliated or related companies or any of the contractors or agents of any of the foregoing concerning the engineering, construction, procurement, installation, inspection, operation and all other work to be performed by Buyer or any of its affiliated or related companies or any of the contractors or agents of any of the foregoing (other than Seller) in connection with the Subject Plant shall be merely advisory and non-binding in nature and shall be based entirely upon Seller's experience; and (iii) Buyer and its affiliated or related companies shall be solely responsible for all of the work to be performed by it or its affiliated or related companies or any of their contractors or agents (other than Seller) in connection with the Subject Plant. (e) In the event that the remedy provided herein for breach of express warranty hereunder shall be deemed to have failed of its essential purpose by a court or arbitral tribunal of competent jurisdiction (after exhaustion of all rights of appeal), then Buyer shall, in any such event, be limited to a refund of amounts actually received by Seller from Buyer for the defective Equipment or Services subject to a valid express warranty claim hereunder, less a deduction for the use or depreciation in value of the Equipment. In that event, title to the Equipment shall immediately revest in Seller, Buyer shall hold the Equipment in trust for Seller, and Buyer shall deliver that Equipment to Seller as requested. Risk of loss shall revert to the Seller when Buyer redelivers the Equipment to Seller. SECTION 8. DISCLAIMER OF ALL OTHER WARRANTIES: THE EXPRESS WARRANTIES SET FORTH IN SECTION 7 HEREOF ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, AND SELLER EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES ON THE EQUIPMENT OR SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT ANY IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THOSE WARRANTIES ARE EXPRESSLY LIMITED TO THE DURATION OF THE RELEVANT WARRANTY PERIODS, AND TO THE LIMITATION OF REMEDIES, STATED IN SECTIONS 7 AND 8 HEREOF. SECTION 9. LIMITATION OF LIABILITY: (a) Notwithstanding any provision of this Contract for Sale or applicable law to the contrary, Seller's liability to any and all with respect to any and all losses, damage or liabilities shall be limited, in the aggregate, to the purchase price for the Equipment (less deductions for its use and depreciation in value) and Services actually received by Seller under this Contract for Sale whichever is lesser, and Seller shall have no liability or obligation with respect to any bodily injury to or death of any person or any damage to property attributable to the compliance of Seller or any of its subcontractors with the specifications or instructions of Buyer. (b) SELLER'S SOLE LIABILITY TO BUYER WITH RESPECT TO DAMAGE TO PROPERTY OR INJURY TO OR DEATH OF ANY PERSONS SHALL BE AS SET FORTH IN SECTION 9(A) HEREOF. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT FOR SALE TO THE CONTRARY, BUYER SHALL NOT BE ENTITLED TO RECOVER FROM SELLER ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OR EXPENSES ARISING OUT OF (i) ANY DAMAGE TO PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE EQUIPMENT) OR ANY INJURY TO OR DEATH OF ANY PERSON (ii) THE USE OR POSSESSION OF THE EQUIPMENT BY BUYER OR ANY OTHER PARTY (iii) ANY BREACH OF THE EXPRESS WARRANTIES GRANTED BY SELLER IN SECTION 7 HEREOF OR (iv) ANY OTHER BREACH BY SELLER OF ANY OF ITS OBLIGATIONS UNDER THIS CONTRACT FOR SALE OR APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF ACTUAL OR PROSPECTIVE PROFITS BY BUYER OR ANY EXPENSES INCURRED BY BUYER FOR "DOWN TIME." (c) Seller shall maintain, at its sole cost, at all times during its performance of Services under this Service Agreement, general liability and worker’s compensation insurance in commercially reasonable coverage limits. A certificate evidencing the foregoing insurance shall be delivered to Buyer upon Buyer's request. SECTION 10. DEFAULT: (a) In the event that, due to no fault of Buyer, Seller fails to perform any obligation hereunder as and when due after the expiration of any excuse (including, but not limited to, an event of force majeure) or extension provided for in this Contract for Sale or under the governing law specified in Section 15 hereof, and if Seller shall continue to fail to perform that obligation or commence reasonable action to cause that obligation to be performed for a period of sixty (60) calendar days after Notice thereof is delivered to Seller by Buyer [after the expiration of any excuse (including, but not limited to, an event of force majeure) or extension provided for in this Contract for Sale or under the governing law specified in Section 15 hereof], Buyer shall be entitled to terminate any further performance by it hereunder, and recover any actual payments received by Seller from Buyer (subject to the deductions noted above) hereunder for Equipment not delivered or Services not provided to Buyer. The foregoing remedy is Buyer's sole and exclusive remedy for breach of this Contract for Sale by Seller or for any claim of any kind Buyer may assert against Seller as a result of the relationship established pursuant to this Contract for Sale, and precludes all other remedies, including, but not limited to, recovery of incidental, special, indirect, consequential and/or punitive damages, or actual damages in excess of the limit contained herein; provided, however, that certain events or certain breaches of this Contract for Sale are dealt with specifically in Sections 7, 8 and 9 hereof, and the provisions of those Sections shall control with respect to any events or any breaches described therein, regardless of whether or not any of those events or breach might also constitute a breach under this Section 10(a). (b) In the event that, for any reason (including, but not limited to, an alleged event of force majeure), Buyer fails to make any payment or perform any other obligation hereunder as and when due, and that failure continues for a period of fifteen (15) calendar days after Seller gives Notice of that failure to Buyer, then, in that event, Seller shall thereupon be entitled to terminate any further performance by it under this Contract for Sale, retain the payments previously made to it hereunder, recover all remaining unpaid payments hereunder and/or seek any other remedy available to it at law or in equity. All of those remedies shall be cumulative and shall not preclude the resort to any other remedies. In no event shall an event of force majeure relieve Buyer from its obligations to pay as and when due all payments required to be made by it under this Contract for Sale and applicable law. SECTION 11. CONFIDENTIALITY: (a) Buyer shall NOT (i) without the prior written permission of Seller, disclose to any third party, directly or indirectly, any confidential information, data, documents or drawings provided, directly or indirectly, by Seller to Buyer in connection with this Contract for Sale ("Seller's Information"), or disclose the price or terms hereof; (ii) use Seller's Information other than as strictly necessary for the installation and operation of the Equipment or the operation, repair, maintenance or revamp of the Subject Plant, and (iii) directly or indirectly, copy or reverse engineer the Equipment. (b) Seller shall NOT (i) without the prior written permission of Buyer, disclose to any third party, directly or indirectly, any confidential information, data, documents or drawings provided, directly or indirectly, by Buyer to Seller in connection with this Contract for Sale ("Buyer's Information") (except that Seller may make disclosures of Buyer's Information as necessary to its subcontractors); and (ii) use Buyer's Information except as necessary for the provision of the Equipment or Services under this Contract for Sale. SECTION 12. INTELLECTUAL PROPERTY: In the event that a third party institutes litigation against Buyer asserting a claim that the Equipment, infringes upon such third party's U.S. patent rights in existence on the Effective Date of this Contract for Sale, then Buyer shall give Seller immediate Notice thereof and Seller shall have the right, at its expense, to assume the complete defense of that claim and Buyer shall cooperate fully with Seller in preparing for and making its defense. If Seller believes that modifications can be made in the Equipment so that it would not infringe that third party's U.S. patent rights in existence on the Effective Date of this Contract for Sale, Seller may, at its expense, make those modifications, so long as the modifications do not materially adversely affect the operation of the Subject Plant, as determined by Buyer in the good-faith exercise of reasonable judgment. Seller shall be responsible for and shall defend, indemnify and hold harmless Buyer from and against any loss, liability or damage (i) that is actually sustained by Buyer and (ii) that arises out of either a final determination of any claim by a court of competent jurisdiction (after exhaustion of all rights of appeal) that the Equipment infringes upon a third party's U.S. patent rights in existence on the Effective Date of this Contract for Sale or a final and binding settlement of that claim; provided, however, that Seller shall have no obligations under this Section 12 with respect to any Equipment, or any part thereof, manufactured to any designs furnished or required by Buyer or with respect to any claims that the sale or use of a process, or use of a combination of the Equipment supplied by Seller hereunder with other equipment, infringes the intellectual property rights of a third party, if such process or other equipment was not supplied by Seller, and provided further that, notwithstanding any provision of this Contract for Sale or applicable law to the contrary, Seller's total maximum aggregate liability to Buyer for any and all claims of any kind whatsoever, whether arising in contract or tort law or otherwise, that Buyer could assert against Seller with respect to this Contract for Sale or applicable law shall be limited to an amount equal to the purchase price of the Equipment and Services actually received by Seller under this Contract for Sale (less the deductions noted above). Seller shall retain ownership of all specifications, designs, know how and other information used or developed for the performance of this Contract for Sale, even if supplied. SECTION 13. ASSIGNMENT: Neither party hereto shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party hereto; provided, however, that Seller shall be free to subcontract the construction and/or manufacture of all or any part of the Equipment, at Seller's option. SECTION 14. SEVERABILITY: The invalidity or unenforceability of any provision of this Contract for Sale shall not affect the validity or enforceability of any other provision of this Contract for Sale, and the remaining provisions of this Contract for Sale shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable provision had not been included herein; provided, however, that any provision determined by an arbitral or judicial tribunal of competent jurisdiction to be invalid or unenforceable shall be modified only so much as shall be necessary to permit it to be enforced to the maximum extent permissible. SECTION 15. CHOICE OF LAW; DISPUTE RESOLUTION: The substantive laws of the State of Arizona shall control the interpretation and the performance of this Contract for Sale and any other agreements arising out of or relating to it, regardless of where this Contract for Sale is entered into or performed and regardless of any choice-of-law principles that might otherwise require the application of the laws of another jurisdiction. The parties agree to attempt to resolve any dispute arising out of or related to this Contract for Sale through good faith negotiation. If the dispute can not be resolved within thirty (30) days of the initial attempts to so resolve the dispute, either party may submit it to non-binding mediation before a mutually acceptable mediator sitting in Maricopa County, Arizona, unless the parties otherwise agree. If the matter is not resolved following at least one mediation session, either party may submit the matter to binding arbitration before a single arbitrator sitting in Maricopa County, Arizona, in accordance with the then current Rules of Commercial Arbitration of the American Arbitration Association or any successor organization (the “AAA”). The party desiring to initiate the arbitration process shall give written notice to that effect to the other party and shall, in the written notice, include a brief statement of its claims. Within ten (10) days of the notice of intent to arbitrate, the parties shall meet for the purpose of attempting to jointly select a single arbitrator to serve in the matter. If they are unable to agree on the designation of the arbitrator, either party may apply to the AAA for the appointment of a single arbitrator in accordance with the rules of the AAA then in effect. The arbitration proceeding shall be held within sixty (60) days of the appointment of the arbitrator and the arbitrator shall render his or her decision within thirty (30) days after the conclusion of the arbitration proceeding. The decision of the arbitrator shall be final and binding upon, and non-appealable by, the parties (except as otherwise required by the Federal Arbitration Act) and any judgment may be had on the decision and award so rendered in any court of competent jurisdiction. The prevailing party shall be entitled to all costs incurred in connection with the arbitration proceeding, including the fees of the arbitrator, its reasonable attorneys’ and expert fees and disbursements, witness fees and other costs as determined by the arbitrator. If, for any reason, neither party elects arbitration pursuant to the foregoing provisions, Buyer and Seller each hereby irrevocably submits to the personal jurisdiction of the federal and state courts sitting in Maricopa County, Arizona, which shall be the exclusive jurisdiction for all disputes, with respect to any and all claims that either party hereto may assert against the other arising out of or relating to this Contract for Sale and each party hereto waives any defense to the exercise of that jurisdiction based on venue or forum non convenient defenses. SECTION 16. ENTIRE AGREEMENT: This Contract for Sale constitutes the entire agreement of the parties with respect to the sale of the Equipment and Services and supersedes all prior oral or written representations, warranties or agreements relating thereto, including any terms or conditions that may be contained in any request for quotation, bid, proposal or purchase order submitted by Buyer. This Contract for Sale may not be amended except by a writing executed by duly authorized representatives of the parties hereto. SECTION 17. SUCCESSORS BOUND: This Contract for Sale shall be binding upon and inure to the benefit of the parties hereto and their respective successors in interest and permitted assigns. SECTION 18. WAIVER: The failure or delay of either party hereto to require performance by the other party hereto or to enforce its rights under any provision hereof shall not affect the rights of that party to require performance and to enforce its rights with respect to that provision unless and until the performance has been waived in writing by that party. Any such waiver shall be effective only in accordance with its terms and may be restricted or conditioned in any way. No waiver hereunder shall constitute waiver of a continuance or reoccurrence of any failure or delay in performance hereunder, except as provided in the waiver. The rights granted to each party hereunder and any rights available at law or equity shall be cumulative and may be exercised in whole or in part from time to time. SECTION 19. NOTICES: All Notices between the parties hereunder shall be in the English language and in writing (by registered or certified mail or by facsimile, confirmed by registered or certified mail, with registered or certified mail being sent by return-receipt-requested and postage-prepaid, or by express courier delivery) and shall be addressed to the parties hereto at their respective addresses set forth in this Contract for Sale. All Notices shall be deemed effective on the date that is ten (10) calendar days after the date on which sent by registered or certified mail or by facsimile, confirmed by registered or certified mail, or by express courier delivery. Each party hereto may change its address for purposes hereof by Notice given to the other party in the manner prescribed herein. SECTION 20. INDEPENDENT CONTRACTORS: Each party hereto is acting as an independent contractor and neither party hereto shall be deemed to be an agent, joint venturer, partner or legal representative of the other party. This Contract for Sale does not grant, and neither party hereto shall have, any authority, express or implied, to create or assume any obligation, enter into any agreement, make any representation or warranty, file any document with any government agency or serve or accept legal process on behalf of the other party, to settle any claim by or against the other party, or to bind or otherwise render the other party liable in any way. SECTION 21. EXPORT CONTROLS: The export of the Equipment to Buyer is subject to the laws of the United States of America, which may require, among other things, prior approval by the United States Government. Buyer shall use its best efforts to assist Seller in obtaining, retaining and complying with any export license that may be granted to Seller with respect to the export of the Equipment hereunder. Buyer shall comply with any restrictions or prohibitions on re-exportation that the United States Government may impose as a condition for granting permission to export the Equipment hereunder. Seller's inability to obtain any export license required in connection with the export of the Equipment to Buyer shall be an event of force majeure under this Contract for Sale. SECTION 22. GOVERNING LANGUAGE; NO FOREIGN PRESENCE: This Contract for Sale shall be executed in the English language only and the English language shall be the governing language of this Contract for Sale and any and all documents related hereto, and all transactions between the parties hereto. Seller has no office, branch, subsidiary or other "permanent establishment" in the country of Buyer and nothing in this Contract for Sale shall be construed as creating a "permanent establishment" of Seller in the country of Buyer. SECTION 23. FOREIGN PRACTICES: Each party agrees that in the performance of their respective obligations under this Agreement, it will not conduct any corrupt practices, which shall include but are not limited to the offering, giving or promising to offer or give directly or indirectly, money or anything of value to any official of a government, political party or instrumentality thereof in order to assist in obtaining or retaining business relating to or arising from this Service Agreement. SECTION 24. HEADINGS: The headings and titles used in these Terms and Conditions of Sale are to facilitate reference only and do not form a part of this Contract for Sale and shall not in any way affect the interpretation hereof. SECTION 25. TERM AND SURVIVAL: The term of this Contract for Sale shall commence on the Effective Date and shall expire on the third (3rd) annual anniversary of the Effective Date of this Contract for Sale. Notwithstanding any expiration, cancellation or termination of this Contract for Sale for any reason, Buyer's obligations under, and the disclaimers, restrictions and limitations of Seller's liability set forth in, Sections 6, 7, 8, 9, 10, 11, 12, 15 and 20 hereof shall survive the expiration, cancellation or termination. Notwithstanding any expiration, cancellation or termination of this Contract for Sale for any reason, Seller's obligations under Sections 11, 12, 15 and 20 hereof shall survive the expiration, cancellation or termination. SECTION 26. REPRESENTATIONS AND WARRANTIES: By their signatures below, each party represents and warrants that it, and the person or entity signing on its behalf, is duly authorized to enter into this Agreement without the consent of any other person or entity, and that the foregoing terms and conditions are the sole terms and conditions applicable to this Agreement, notwithstanding any other provisions in forms of any purchase order or acceptance supplied by Buyer, all of which provisions are expressly disclaimed and rejected. SELLER: STRATCO , Inc. a Missouri Corporation By _______________________________ Its Duly Authorized Agent Name:_______________________________ Title: ________________________________ Date: ________________________________ BUYER: _______________________________________ By ______________________________ Its Duly Authorized Agent Name: _______________________________ Title: ________________________________ Date: ________________________________  TERMS AND CONDITIONS OF SALE #DE090723STR (DOMESTIC)SECTION 1. DEFINITIONS (a) "Buyer" shall mean the purchaser of the Equipment or Services identified in the Contract for Sale of which this is a part of, and its successors and permitted assigns. (b) "Contract for Sale" shall mean these Terms and Conditions of Sale and only those other documents attached hereto that are approved and accepted in writing by a duly authorized representative of Seller. ANY OTHER DOCUMENTS (WHETHER NOW EXISTING OR DELIVERED IN THE FUTURE), AND ANY TERMS AND CONDITIONS IN THOSE DOCUMENTS, THAT ARE NOT SO APPROVED AND ACCEPTED BY SELLER ARE HEREBY OBJECTED TO AND REJECTED BY SELLER. (c) "Effective Date" shall mean the date on which this Contract for Sale shall become effective, which shall be the date on which this Contract for Sale is accepted by Seller. (d) "Equipment" shall mean the equipment that is being sold to Buyer by Seller under this Contract for Sale, as more particularly described in the technical specifications attached hereto in accordance with Section 1(e) hereof. The parties hereto understand and agree that the Equipment will be manufactured for Buyer's specific use to design specifications unique to Buyer, and that, if the Buyer does not perform its obligations hereunder, the Equipment will not be salable by Seller to a third party. (e) "Notice" shall mean notice given in the manner described in Section 19 hereof. (f) "Seller" shall mean ECOPATH Industries, LLC, organized and existing under the laws of the State of Arizona. (g) "Services" shall mean the services to be performed by Seller for Buyer under this Contract for Sale. (h) "Subject Plant" shall mean the plant in which the Equipment is to be installed or for which the Services are to be provided. SECTION 2. SPECIFICATIONS; VARIANCES; CHANGES: (a) The Equipment, including that produced to meet an exact specification, shall be subject to tolerances and variations consistent with Seller’s standards and usages of trade and regular practices concerning: dimension, weight, size, composition and mechanical properties, and consistent with normal variations in surface, internal conditions and quality. Seller shall have the right to substitute materials, components and other inputs with materials, components and other inputs of like quality and function in Seller’s discretion. Seller shall not be liable for customary or reasonable variations from specifications. Further, the description of the Equipment (including without limitation any estimates regarding the production volume or other functionality of the Equipment) contained in this Contract for Sale and Seller’s other materials represents an estimate only, and actual results may fluctuate or vary within customary tolerances and variations. Seller also reserves the right to alter the features and design of the Equipment from the features and design described in this Contract for Sale and in Seller’s other marketing materials, and to make other changes to the design, materials or components of the Equipment as is necessary or appropriate to conform the Equipment to applicable requirements of law and to conform the Equipment with considerations of safety, engineering requirements, functionality and other matters. (b) At any time, Buyer may give Seller written notice of its desire to make changes in the technical specifications of the Equipment. Promptly after its receipt of such notice from Buyer, Seller shall give Buyer written notice of the additional charges to Buyer, if any, to make any such changes and any changes to the delivery schedule that may be required. No change request by Buyer shall be effective unless Buyer and Seller agree in writing to Seller's proposed changes in price and delivery schedule. If no written agreement is reached by the parties within fourteen (14) calendar days after Seller's notice of its proposed changes, this Contract for Sale shall continue unmodified as if Buyer had never submitted a change request. SECTION 3. INSPECTION: The parties understand and acknowledge that Seller sub-contracts the manufacture of the Equipment. At Buyer's sole cost and expense, Buyer shall have the right to inspect the principal components of the Equipment and to witness Seller's tests of the principal components of the Equipment prior to delivery of the Equipment (as delivery is defined in Section 4 hereof). Buyer shall exercise such inspection right, if at all, at reasonable times and upon reasonable notice to Seller and in a manner that does not unreasonably interfere with the operations of Seller and its subcontractors. SECTION 4. TITLE TO THE EQUIPMENT, DELIVERY AND INSTALLATION: Seller shall deliver the Equipment to Buyer, and title to the Equipment and all risks of acceptance and loss of the Equipment shall pass to Buyer, F.O.B. at the manufacturer's facilities. Buyer shall be solely responsible for procuring and paying for any insurance Buyer may desire against risk of loss or damage to the Equipment from and after the time at which the Equipment is delivered at its places of manufacture. As a convenience to Buyer, Seller may, on behalf of and at the written request of Buyer, arrange for the inland U.S. transportation of the Equipment, if Buyer furnishes to Seller timely and complete written instructions with respect to the transportation carrier or carriers to be utilized. In the event Seller makes such shipping arrangements for Buyer, any shipping costs incurred by Seller shall be paid by Buyer within thirty (30) calendar days after the date of Seller's invoice therefor. In all cases, Buyer shall assume all risk of loss attendant to that shipment and be responsible for making all claims with carriers, insurers, warehousers and others for misdelivery, non-delivery, loss, damage, delay or otherwise, and Seller shall have no liability in connection with shipment and shall not be considered either the agent of the carrier or Buyer for this purpose. Seller shall have no responsibility for installation of the Equipment. SECTION 5. FORCE MAJEURE: Notwithstanding any other provision of this Contract for Sale or applicable law to the contrary, Seller shall not be liable or responsible to Buyer for any failure or delay in performance or nondelivery, in whole or in part, due to events of force majeure, including, but not limited to, acts of God or of the public enemy; acts of Buyer not within its rights under this Contract for Sale; fire; flood; storm; explosion; earthquake; riots; wars; hostilities; civil commotion; accidents; strikes or other labor shortages or disputes; interruption of supply; shortages of or inability to obtain fuel, power, raw materials or freight or transportation services; any law or regulation; any decision by any judicial or arbitral tribunal or any other acts of any government agency or persons purporting to act with governmental authority; or any other cause beyond the reasonable control of Seller or which Seller is not able to overcome by the use of reasonable measures or which Seller is able to overcome only at substantial expense. SECTION 6. PRICE; PAYMENTS; TAXES: Buyer shall pay Seller the price for the Equipment and Services specified in this Contract for Sale as and when due. Acceptance and endorsement by Seller of any instrument for less than the full amount that Seller claims to be due and payable hereunder shall not be deemed to be an admission of payment in full, and any conditions to the contrary that are noted on any such instrument shall not be binding on Seller. Buyer shall be responsible for and shall pay any and all taxes and all other government charges and other impositions arising from the sale of the Equipment or Services by Seller to Buyer, including, but not limited to, customs tariffs and duties, excise taxes, surtaxes, income, sales, withholding, use and value-added taxes, and all other taxes or levies imposed by any government agency in connection with the transactions contemplated by this Contract for Sale, whether imposed upon Seller, Buyer, or both of them, except for U.S. federal and state taxes imposed on the net income of Seller. The intent of this Section 6 is to ensure that Seller receives the full amount of the purchase price for the Equipment and Services specified in this Contract for Sale by the dates specified in the Contract for Sale, irrespective of any taxes or other levies that may be imposed by any government. SECTION 7. EXPRESS WARRANTY: (a) Seller warrants that it will convey to Buyer good title to the Equipment and that the Equipment, when delivered as provided in Section 4 hereof, (i) will, at the time of delivery hereunder, be new and unused, of good quality and workmanship within generally recognized U.S. industry standards, and be free and clear of any lien, encumbrance or security interest, and (ii) will be free from material defects in material and workmanship under use and service typical for equipment of this type, normal wear and tear and corrosion excepted, for a period of twelve (12) months after the date of initial operation of the Equipment or eighteen (18) months after the date of delivery of the relevant Equipment (as delivery is defined in Section 4 hereof), whichever period expires first (hereinafter, the "Warranty Period"). Buyer's sole and exclusive remedy for breach of this express warranty shall be repair or replacement (with parts selected by Seller in its reasonable discretion as appropriate), at Seller's option, of any part or parts of the Equipment subject to a valid express warranty claim hereunder. The parties hereto contemplate that Seller, in exercising its repair option, will, in virtually all cases, elect to repair any part or parts of the Equipment subject to a valid express warranty claim hereunder at the site of the Subject Plant and not return same to Seller's facilities. Accordingly, the parties agree that Buyer may only ship any part or parts of the Equipment subject to a valid express warranty claim by Buyer back to Seller if Buyer obtains Seller's prior written approval thereof, and, in that case, Seller shall pay shipping charges incurred by Buyer in connection with that shipment. As a condition precedent to any claim for breach of express warranty hereunder, Buyer give Seller Notice of that claim not later than thirty (30) calendar days after Buyer's discovery thereof or the claim shall be deemed waived. (b) THE EXPRESS WARRANTY GIVEN IN SECTION 7(a) HEREOF SHALL BE VOID IF (i) the Equipment has been subject to neglect, accident, incorrect or improper installation, incorrect or improper use, incorrect or improper maintenance, or incorrect or improper repair or storage; (ii) the Equipment is defective due to defective specifications provided by or required by Buyer; (iii) the Equipment has been altered without Seller's prior written consent; (iv) spare or replacement parts have been used in or on the Equipment but were not furnished or approved in writing by Seller; or (v) additional attachments or equipment furnished by someone other than Seller have caused or materially contributed to the defect. (c) Seller warrants that the Services shall be performed in a good and professional manner, and where applicable, in accordance with engineering practices generally accepted in the United States of America. Such warranty shall be in effect for a period of sixty (60) calendar days after the date the relevant Services are performed and any claims by Buyer shall be made only during that period. In the event of a breach by Seller of the foregoing warranty, Buyer's sole and exclusive remedy for that breach is the reperformance of the relevant Services by Seller at Seller's expense, upon Buyer's written request. (d) Seller makes no warranties whatsoever with respect to the useful life of expendable and normal wear parts. Buyer shall be solely responsible for ensuring that the Equipment and Services conform to its particular requirements and to all applicable state and federal laws and regulations, including, but not limited to, environmental and product safety laws and regulations. Notwithstanding any other provision of this Contract for Sale and the documents attached hereto and applicable law to the contrary, the parties acknowledge and agree that (i) Seller has no knowledge concerning laws, regulations and other codes and conditions at the site of the Subject Plant; (ii) any comments that Seller makes to Buyer or any of its affiliated or related companies or any of the contractors or agents of any of the foregoing concerning the engineering, construction, procurement, installation, inspection, operation and all other work to be performed by Buyer or any of its affiliated or related companies or any of the contractors or agents of any of the foregoing (other than Seller) in connection with the Subject Plant shall be merely advisory and non-binding in nature and shall be based entirely upon Seller's experience; and (iii) Buyer and its affiliated or related companies shall be solely responsible for all of the work to be performed by it or its affiliated or related companies or any of their contractors or agents (other than Seller) in connection with the Subject Plant. (e) In the event that the remedy provided herein for breach of express warranty hereunder shall be deemed to have failed of its essential purpose by a court or arbitral tribunal of competent jurisdiction (after exhaustion of all rights of appeal), then Buyer shall, in any such event, be limited to a refund of amounts actually received by Seller from Buyer for the defective Equipment or Services subject to a valid express warranty claim hereunder, less a deduction for the use or depreciation in value of the Equipment. In that event, title to the Equipment shall immediately revest in Seller, Buyer shall hold the Equipment in trust for Seller, and Buyer shall deliver that Equipment to Seller as requested. Risk of loss shall revert to the Seller when Buyer redelivers the Equipment to Seller. SECTION 8. DISCLAIMER OF ALL OTHER WARRANTIES: THE EXPRESS WARRANTIES SET FORTH IN SECTION 7 HEREOF ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, AND SELLER EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES ON THE EQUIPMENT OR SERVICES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. TO THE EXTENT THAT ANY IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THOSE WARRANTIES ARE EXPRESSLY LIMITED TO THE DURATION OF THE RELEVANT WARRANTY PERIODS, AND TO THE LIMITATION OF REMEDIES, STATED IN SECTIONS 7 AND 8 HEREOF. SECTION 9. LIMITATION OF LIABILITY: (a) Notwithstanding any provision of this Contract for Sale or applicable law to the contrary, Seller's liability to any and all with respect to any and all losses, damage or liabilities shall be limited, in the aggregate, to the purchase price for the Equipment (less deductions for its use and depreciation in value) and Services actually received by Seller under this Contract for Sale whichever is lesser, and Seller shall have no liability or obligation with respect to any bodily injury to or death of any person or any damage to property attributable to the compliance of Seller or any of its subcontractors with the specifications or instructions of Buyer. (b) SELLER'S SOLE LIABILITY TO BUYER WITH RESPECT TO DAMAGE TO PROPERTY OR INJURY TO OR DEATH OF ANY PERSONS SHALL BE AS SET FORTH IN SECTION 9(A) HEREOF. NOTWITHSTANDING ANY OTHER PROVISION OF THIS CONTRACT FOR SALE TO THE CONTRARY, BUYER SHALL NOT BE ENTITLED TO RECOVER FROM SELLER ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OR EXPENSES ARISING OUT OF (i) ANY DAMAGE TO PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE EQUIPMENT) OR ANY INJURY TO OR DEATH OF ANY PERSON (ii) THE USE OR POSSESSION OF THE EQUIPMENT BY BUYER OR ANY OTHER PARTY (iii) ANY BREACH OF THE EXPRESS WARRANTIES GRANTED BY SELLER IN SECTION 7 HEREOF OR (iv) ANY OTHER BREACH BY SELLER OF ANY OF ITS OBLIGATIONS UNDER THIS CONTRACT FOR SALE OR APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF ACTUAL OR PROSPECTIVE PROFITS BY BUYER OR ANY EXPENSES INCURRED BY BUYER FOR "DOWN TIME." (c) Seller shall maintain, at its sole cost, at all times during its performance of Services under this Service Agreement, general liability and worker’s compensation insurance in commercially reasonable coverage limits. A certificate evidencing the foregoing insurance shall be delivered to Buyer upon Buyer's request. SECTION 10. DEFAULT: (a) In the event that, due to no fault of Buyer, Seller fails to perform any obligation hereunder as and when due after the expiration of any excuse (including, but not limited to, an event of force majeure) or extension provided for in this Contract for Sale or under the governing law specified in Section 15 hereof, and if Seller shall continue to fail to perform that obligation or commence reasonable action to cause that obligation to be performed for a period of sixty (60) calendar days after Notice thereof is delivered to Seller by Buyer [after the expiration of any excuse (including, but not limited to, an event of force majeure) or extension provided for in this Contract for Sale or under the governing law specified in Section 15 hereof], Buyer shall be entitled to terminate any further performance by it hereunder, and recover any actual payments received by Seller from Buyer (subject to the deductions noted above) hereunder for Equipment not delivered or Services not provided to Buyer. The foregoing remedy is Buyer's sole and exclusive remedy for breach of this Contract for Sale by Seller or for any claim of any kind Buyer may assert against Seller as a result of the relationship established pursuant to this Contract for Sale, and precludes all other remedies, including, but not limited to, recovery of incidental, special, indirect, consequential and/or punitive damages, or actual damages in excess of the limit contained herein; provided, however, that certain events or certain breaches of this Contract for Sale are dealt with specifically in Sections 7, 8 and 9 hereof, and the provisions of those Sections shall control with respect to any events or any breaches described therein, regardless of whether or not any of those events or breach might also constitute a breach under this Section 10(a). (b) In the event that, for any reason (including, but not limited to, an alleged event of force majeure), Buyer fails to make any payment or perform any other obligation hereunder as and when due, and that failure continues for a period of fifteen (15) calendar days after Seller gives Notice of that failure to Buyer, then, in that event, Seller shall thereupon be entitled to terminate any further performance by it under this Contract for Sale, retain the payments previously made to it hereunder, recover all remaining unpaid payments hereunder and/or seek any other remedy available to it at law or in equity. All of those remedies shall be cumulative and shall not preclude the resort to any other remedies. In no event shall an event of force majeure relieve Buyer from its obligations to pay as and when due all payments required to be made by it under this Contract for Sale and applicable law. SECTION 11. CONFIDENTIALITY: (a) Buyer shall NOT (i) without the prior written permission of Seller, disclose to any third party, directly or indirectly, any confidential information, data, documents or drawings provided, directly or indirectly, by Seller to Buyer in connection with this Contract for Sale ("Seller's Information"), or disclose the price or terms hereof; (ii) use Seller's Information other than as strictly necessary for the installation and operation of the Equipment or the operation, repair, maintenance or revamp of the Subject Plant, and (iii) directly or indirectly, copy or reverse engineer the Equipment. (b) Seller shall NOT (i) without the prior written permission of Buyer, disclose to any third party, directly or indirectly, any confidential information, data, documents or drawings provided, directly or indirectly, by Buyer to Seller in connection with this Contract for Sale ("Buyer's Information") (except that Seller may make disclosures of Buyer's Information as necessary to its subcontractors); and (ii) use Buyer's Information except as necessary for the provision of the Equipment or Services under this Contract for Sale. SECTION 12. INTELLECTUAL PROPERTY: In the event that a third party institutes litigation against Buyer asserting a claim that the Equipment, infringes upon such third party's U.S. patent rights in existence on the Effective Date of this Contract for Sale, then Buyer shall give Seller immediate Notice thereof and Seller shall have the right, at its expense, to assume the complete defense of that claim and Buyer shall cooperate fully with Seller in preparing for and making its defense. If Seller believes that modifications can be made in the Equipment so that it would not infringe that third party's U.S. patent rights in existence on the Effective Date of this Contract for Sale, Seller may, at its expense, make those modifications, so long as the modifications do not materially adversely affect the operation of the Subject Plant, as determined by Buyer in the good-faith exercise of reasonable judgment. Seller shall be responsible for and shall defend, indemnify and hold harmless Buyer from and against any loss, liability or damage (i) that is actually sustained by Buyer and (ii) that arises out of either a final determination of any claim by a court of competent jurisdiction (after exhaustion of all rights of appeal) that the Equipment infringes upon a third party's U.S. patent rights in existence on the Effective Date of this Contract for Sale or a final and binding settlement of that claim; provided, however, that Seller shall have no obligations under this Section 12 with respect to any Equipment, or any part thereof, manufactured to any designs furnished or required by Buyer or with respect to any claims that the sale or use of a process, or use of a combination of the Equipment supplied by Seller hereunder with other equipment, infringes the intellectual property rights of a third party, if such process or other equipment was not supplied by Seller, and provided further that, notwithstanding any provision of this Contract for Sale or applicable law to the contrary, Seller's total maximum aggregate liability to Buyer for any and all claims of any kind whatsoever, whether arising in contract or tort law or otherwise, that Buyer could assert against Seller with respect to this Contract for Sale or applicable law shall be limited to an amount equal to the purchase price of the Equipment and Services actually received by Seller under this Contract for Sale (less the deductions noted above). Seller shall retain ownership of all specifications, designs, know how and other information used or developed for the performance of this Contract for Sale, even if supplied. SECTION 13. ASSIGNMENT: Neither party hereto shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party hereto; provided, however, that Seller shall be free to subcontract the construction and/or manufacture of all or any part of the Equipment, at Seller's option. SECTION 14. SEVERABILITY: The invalidity or unenforceability of any provision of this Contract for Sale shall not affect the validity or enforceability of any other provision of this Contract for Sale, and the remaining provisions of this Contract for Sale shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable provision had not been included herein; provided, however, that any provision determined by an arbitral or judicial tribunal of competent jurisdiction to be invalid or unenforceable shall be modified only so much as shall be necessary to permit it to be enforced to the maximum extent permissible. SECTION 15. CHOICE OF LAW; DISPUTE RESOLUTION: The substantive laws of the State of Arizona shall control the interpretation and the performance of this Contract for Sale and any other agreements arising out of or relating to it, regardless of where this Contract for Sale is entered into or performed and regardless of any choice-of-law principles that might otherwise require the application of the laws of another jurisdiction. The parties agree to attempt to resolve any dispute arising out of or related to this Contract for Sale through good faith negotiation. If the dispute can not be resolved within thirty (30) days of the initial attempts to so resolve the dispute, either party may submit it to non-binding mediation before a mutually acceptable mediator sitting in Maricopa County, Arizona, unless the parties otherwise agree. If the matter is not resolved following at least one mediation session, either party may submit the matter to binding arbitration before a single arbitrator sitting in Maricopa County, Arizona, in accordance with the then current Rules of Commercial Arbitration of the American Arbitration Association or any successor organization (the “AAA”). The party desiring to initiate the arbitration process shall give written notice to that effect to the other party and shall, in the written notice, include a brief statement of its claims. Within ten (10) days of the notice of intent to arbitrate, the parties shall meet for the purpose of attempting to jointly select a single arbitrator to serve in the matter. If they are unable to agree on the designation of the arbitrator, either party may apply to the AAA for the appointment of a single arbitrator in accordance with the rules of the AAA then in effect. The arbitration proceeding shall be held within sixty (60) days of the appointment of the arbitrator and the arbitrator shall render his or her decision within thirty (30) days after the conclusion of the arbitration proceeding. The decision of the arbitrator shall be final and binding upon, and non-appealable by, the parties (except as otherwise required by the Federal Arbitration Act) and any judgment may be had on the decision and award so rendered in any court of competent jurisdiction. The prevailing party shall be entitled to all costs incurred in connection with the arbitration proceeding, including the fees of the arbitrator, its reasonable attorneys’ and expert fees and disbursements, witness fees and other costs as determined by the arbitrator. If, for any reason, neither party elects arbitration pursuant to the foregoing provisions, Buyer and Seller each hereby irrevocably submits to the personal jurisdiction of the federal and state courts sitting in Maricopa County, Arizona, which shall be the exclusive jurisdiction for all disputes, with respect to any and all claims that either party hereto may assert against the other arising out of or relating to this Contract for Sale and each party hereto waives any defense to the exercise of that jurisdiction based on venue or forum non convenient defenses. SECTION 16. ENTIRE AGREEMENT: This Contract for Sale constitutes the entire agreement of the parties with respect to the sale of the Equipment and Services and supersedes all prior oral or written representations, warranties or agreements relating thereto, including any terms or conditions that may be contained in any request for quotation, bid, proposal or purchase order submitted by Buyer. This Contract for Sale may not be amended except by a writing executed by duly authorized representatives of the parties hereto. SECTION 17. SUCCESSORS BOUND: This Contract for Sale shall be binding upon and inure to the benefit of the parties hereto and their respective successors in interest and permitted assigns. SECTION 18. WAIVER: The failure or delay of either party hereto to require performance by the other party hereto or to enforce its rights under any provision hereof shall not affect the rights of that party to require performance and to enforce its rights with respect to that provision unless and until the performance has been waived in writing by that party. Any such waiver shall be effective only in accordance with its terms and may be restricted or conditioned in any way. No waiver hereunder shall constitute waiver of a continuance or reoccurrence of any failure or delay in performance hereunder, except as provided in the waiver. The rights granted to each party hereunder and any rights available at law or equity shall be cumulative and may be exercised in whole or in part from time to time. SECTION 19. NOTICES: All Notices between the parties hereunder shall be in the English language and in writing (by registered or certified mail or by facsimile, confirmed by registered or certified mail, with registered or certified mail being sent by return-receipt-requested and postage-prepaid, or by express courier delivery) and shall be addressed to the parties hereto at their respective addresses set forth in this Contract for Sale. All Notices shall be deemed effective on the date that is ten (10) calendar days after the date on which sent by registered or certified mail or by facsimile, confirmed by registered or certified mail, or by express courier delivery. Each party hereto may change its address for purposes hereof by Notice given to the other party in the manner prescribed herein. SECTION 20. INDEPENDENT CONTRACTORS: Each party hereto is acting as an independent contractor and neither party hereto shall be deemed to be an agent, joint venturer, partner or legal representative of the other party. This Contract for Sale does not grant, and neither party hereto shall have, any authority, express or implied, to create or assume any obligation, enter into any agreement, make any representation or warranty, file any document with any government agency or serve or accept legal process on behalf of the other party, to settle any claim by or against the other party, or to bind or otherwise render the other party liable in any way. SECTION 21. HEADINGS: The headings and titles used in these Terms and Conditions of Sale are to facilitate reference only and do not form a part of this Contract for Sale and shall not in any way affect the interpretation hereof. SECTION 22. TERM AND SURVIVAL: The term of this Contract for Sale shall commence on the Effective Date and shall expire on the third (3rd) annual anniversary of the Effective Date of this Contract for Sale. Notwithstanding any expiration, cancellation or termination of this Contract for Sale for any reason, Buyer's obligations under, and the disclaimers, restrictions and limitations of Seller's liability set forth in, Sections 6, 7, 8, 9, 10, 11, 12, 15 and 20 hereof shall survive the expiration, cancellation or termination. Notwithstanding any expiration, cancellation or termination of this Contract for Sale for any reason, Seller's obligations under Sections 11, 12, 15 and 20 hereof shall survive the expiration, cancellation or termination. SECTION 23. REPRESENTATIONS AND WARRANTIES: By their signatures below, each party represents and warrants that it, and the person or entity signing on its behalf, is duly authorized to enter into this Agreement without the consent of any other person or entity, and that the foregoing terms and conditions are the sole terms and conditions applicable to this Agreement, notwithstanding any other provisions in forms of any purchase order or acceptance supplied by Buyer, all of which provisions are expressly disclaimed and rejected. SELLER: STRATCO , Inc. a Missouri Corporation By _______________________________ Its Duly Authorized Agent Name:_______________________________ Title: ________________________________ Date: ________________________________ BUYER: _______________________________________ By ______________________________ Its Duly Authorized Agent Name: _______________________________ Title: ________________________________ Date: ________________________________ |
