Echelon Supply and Service Terms and Conditions of Sale

1. GENERAL
The following terms and conditions apply to all sales of goods and services (collectively, “Products”) by Echelon Supply and Service (“Echelon”, “we”, “us” or “our”), to you (the “Customer”), and constitutes the final, complete and exclusive agreement (“Agreement”) between you and Echelon relating to the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including, without limitation, any “Terms and Conditions of Purchase” published by Customer), unless otherwise specifically agreed to in a writing signed by Echelon’s authorized representative. Any term or condition in any order, confirmation, or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth herein is hereby expressly rejected, and Echelon’s acceptance of any order of Customer is expressly made in reliance of Customer’s assent to all terms and conditions hereof. Customer’s acceptance of delivery of any Products constitutes Customer’s acceptance of these terms and conditions.

2. PRICE
 The prices applicable to the Products shall be as quoted by Echelon to Customer and are subject to change. Stenographic and clerical errors are subject to correction. A quotation is not a contractual offer and any order resulting from a quotation is subject to approval and acceptance by Echelon.

3. TAXES
  Prices listed or quoted do not include any present or future sales, use, excise or similar taxes, duties or other governmental charges, which will be added where applicable and paid for by Customer, unless you provide us with a tax exemption certificate acceptable to the appropriate taxing authorities and presented at or before the time of purchase. No sales tax refunds will be given at any time for any reason. Any taxes paid by Echelon on Customer’s behalf shall be reimbursed by Customer upon demand.

4. PAYMENT TERMS
     Unless otherwise agreed to by Echelon in writing, payment terms shall be net thirty (30) days from the date of invoice. If shipments are delayed by Customer, invoices may be rendered on the date(s) Echelon is prepared to make shipment(s). Any Product held as a result of Customer’s inability or refusal to accept delivery is at the risk and expense of Customer. Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Customer within thirty (30) days of the due date thereof. Such interest shall be in addition to the purchase price hereunder. In the event Echelon engages a collection agency or commences a legal action or suit to collect the purchase price or any part thereof, Customer shall, in addition to the full purchase price including interest, be liable for all costs and expenses of such legal action or suit (including reasonable attorney’s fees).

In addition, Echelon reserves the right to require COD payment terms from any customer whose account is overdue for a period of more than 45 days or who has an unsatisfactory credit or payment record. Echelon may also refuse to sell to any person until overdue accounts are paid in full.

5. SHIPPING POINT AND TRANSPORTATION
All Products will be shipped F.O.B. point of shipment. Title and risk of loss shall pass to Customer upon delivery of Product(s) by Echelon to the carrier for shipment to the Customer, notwithstanding any prepayment of shipping charges by Echelon, if so required by the carrier. All shipment costs shall be paid by Customer, and if prepaid by Echelon, the amount thereof shall be reimbursed to Echelon.

6. DELIVERY
Echelon will make every effort to deliver the Products hereunder in accordance with the requested delivery date, provided that Echelon shall not be liable for any delay in delivery due to causes beyond our reasonable control, such as acts of God, acts of the government, strikes, war, delays of carriers, or inability to obtain necessary material or manufacturing facilities. Echelon shall not be liable for any damages or penalties whatsoever whether direct or indirect, special, incidental or consequential, resulting from our failure or the failure of our suppliers to perform or delay in performing unless otherwise agreed in writing by an authorized officer. Customer agrees that any delay in delivery shall not affect the validity of any orders or these terms and conditions.

7. CHANGES TO ORDERS
Unless otherwise agreed to by Echelon in writing, changes in materials, supplies, labor and/or changes made at the request of Customer shall be at the expense of Customer. Changes or alterations made by Customer or made by Echelon (over its recommendation against the same) shall be at Customer’s sole risk and responsibility.  

8. CANCELLATION OF ORDERS
Due to the specialized nature of the Products, orders may be cancelled only with our written consent and upon payment of reasonable cancellation charges, including Echelon’ actual out of pocket costs, overhead and anticipated profit (as determined by us). Partial cancellation of an order may result in adjustment of prices for the balance of the order.

9. REJECTION
Customer’s right to reject any Products supplied hereunder is conditioned upon Customer giving Echelon a written notice of rejection setting forth the basis thereof within ten (10) days after delivery of the Products to Customer. Failure to give such notice within such time constitutes acceptance of such Products. Products may be returned only when authorized by us in writing, and then only on such terms as Echelon may specify. All returned Products shall be returned with shipping prepaid.

10. LIMITED WARRANTIES DISCLAIMERS

(a) Echelon represents and warrants that the Products delivered by Echelon to Customer shall: (i) conform to agreed-upon specifications for the Product(s), to the extent any specifications were made part of an order; and (ii) be free from faulty workmanship and defective materials. The foregoing warranties shall be limited to a ninety (90) day period commencing on the date of shipment of the applicable Product(s) (the “Warranty Period”) provided (i) the Products have been properly cared for (i.e. the Products have not been subject to misuse, neglect, misapplication etc.) and used in accordance with Echelon’s

instructions, if any, (ii) the Products have not been tampered with or modified without Echelon’s prior written approval, and (iii) Customer promptly notifies Echelon in writing of any warranty claim during the Warranty Period. In the event any Product fails to meet either or both of the foregoing warranties, Echelon’s sole obligation, in Echelon’s sole discretion, shall be to either replace or repair the non-conforming Product. The foregoing warranties provided by Echelon in this Section 10 are the only warranties provided by Echelon with respect to the Product(s) sold hereunder, and may be modified or amended only by a written instrument signed by Echelon. Customer’s remedies and Echelon’s aggregate liability with respect to the warranties provided by Echelon in this Section 10 are set forth in and limited by this Section 10 and Section 11 below.  

(b) Echelon’ warranties above do not apply to Products not manufactured by Echelon and do not apply to components furnished by third parties. In addition, such warranties shall be for the sole benefit of the original customer only and are not assignable. Echelon shall not be liable for any claim if alterations have been made to the Products by the Customer or others without Echelon’s written consent. Any components furnished by third parties are warranted only to the extent of the original manufacturer’s warranty to Echelon and then only if such original manufacturer’s warranty is assignable to Customer.

(c)THE EXPRESS WARRANTIES OF Echelon STATED IN SECTION 10(a) ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Echelon’s WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED IN THIS SECTION 10.

11. LIMITATION OF LIABILITY 
Notwithstanding anything to the contrary contained in this Agreement, Echelon’s aggregate liability in connection with the sale or use of Product(s) hereunder, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate purchase price for Products paid by Customer to Echelon pursuant to an applicable order. Echelon shall not be liable for any extraordinary, exemplary, special, indirect, consequential or incidental damages of any kind, including without limitation, lost profits, even if Echelon has been advised of the possibility of such damages. Except as provided in Section 10(a) above, and subject to the limitations set forth in Sections 10 and 11 hereof, Echelon shall not be liable for any claims of third parties relating to any use of the Products, and Customer will defend Echelon and hold Echelon harmless against all losses, liabilities, damages, claims and expenses, including, reasonable attorneys’ fees arising out of or in connection with the use or sale of Products by Customer or Customer’s employees, agents, customers, or contractors. THE FOREGOING STATES THE ENTIRE LIABILITY OF ECHELON WITH REGARD TO THIS AGREEMENT AND ECHELON’S SALE OF PRODUCT(S) HEREUNDER. THE LIMITATIONS CONTAINED IN SECTIONS 10 AND 11 ARE A FUNDAMENTAL PART OF THE BASIS OF Echelon’S BARGAIN HEREUNDER, AND Echelon WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.

12. WARRANTY BY CUSTOMER 
Customer hereby represents and warrants to Echelon that any Product(s) built to Customer’s specifications, when built, does not and will not infringe any rights of any third party, of any kind or nature. Customer shall indemnify, defend and hold harmless Echelon from all claims of any nature asserted or brought against Echelon resulting from a breach of Customer’s warranty hereunder.

13. RETAINED SECURITY INTEREST
Until such time as the entire purchase price of the Products have been paid, Customer hereby grants to Echelon a first priority purchase money security interest in the Products supplied pursuant to the terms hereof. The rights and remedies of Echelon, as a secured party with respect to the Products shall be governed by the Uniform Commercial Code, or equivalent statute(s) of the State in which the Products are located. Customer authorizes Echelon to execute and record on behalf of Customer such financing statements and other instruments as Echelon may deem necessary to perfect or protect its security interest in the Products.

14. NOTICES
Notices may be delivered by overnight courier or fax, with proof of delivery, or by United States mail, registered or certified mail, with postage prepaid, in each case addressed to the party being notified at such party’s address referred to on the face of this contract, or at such other address as such party shall have notified the other party in writing.

15. NOT TRANSFERABLE
This Agreement is not transferable or assignable by Customer either directly or by operation of law without the prior written consent of Echelon.

16. HEADINGS
Paragraph headings are for convenience only and shall not be construed to define or limit the operative provisions of this Agreement.

17. AMENDMENTS
No amendment, change to or modification of this Agreement, or any schedules or attachments hereto, shall be valid unless the same shall be in writing and signed by the party or parties to be charged therewith.

18. APPLICABLE LAW
The rights and duties of the parties shall be governed by the laws of the State of New York. The federal and state courts located within Onondaga County, New York shall have exclusive jurisdiction to determine any and all actions and proceedings relating to or arising from this Agreement and the sale of Product(s) hereunder and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto.

1. Definitions
The term “Purchaser” means Echelon Supply and Service and the term “Seller” means the person, firm, or corporation from whom goods and/or services have been ordered.

2. Contract 
Any purchase order made by Purchaser includes and is expressly limited to these terms and conditions and all specifications, drawings, data and additional special terms and conditions contained herein, attached hereto or incorporated herein by reference (“Specifications”). Seller’s acceptance of Purchaser’s order becomes a binding contract when it is accepted by Seller. Either an acknowledgement by Seller or the commencement of performance by Seller shall constitute acceptance. Acceptance may only be on the exact terms and conditions set forth herein. No terms stated by Seller in accepting or acknowledging any order made by Purchaser shall be binding upon Purchaser unless accepted in writing by an authorized officer of Purchaser. If an order follows an offer by Seller setting forth Seller’s conditions of sale, Purchaser’s acceptance of Seller’s offer is expressly conditioned on the Seller’s assent to the additional or different conditions set forth herein. Prior to or in the absence of Seller’s assent to Purchaser’s terms and conditions, there shall be no contract between Seller and Purchaser.

3. Price 
Unless otherwise specified, the prices set forth in an order includes all applicable federal, state and local taxes and all shipping costs, duties and other charges.

4. Delivery Schedule; Shipment

            a. TIME IS OF THE ESSENCE UNDER ANY ORDER MADE BYPURCHASER. Failure of Seller to make delivery of the Deliverables within the time specified on an order, or within any extension agreed to in writing by Purchaser, shall constitute a breach. In the event of a breach, Purchaser, may in addition to its other rights and remedies, reject any Deliverables and/or terminate its order in whole or in part, and purchase substitute goods and/or services elsewhere and charge Seller with any Loss incurred. “Loss” means every loss, liability, cost, damage and expense, including attorney’s fees and court costs. The term “Deliverables” means all goods and services to be delivered or provided as specified in Purchaser’s order.

            b. A notice of shipment shall be sent to Purchaser at the time of shipment which shall state Purchaser’s order number, the kind and amount of Deliverables and the route by which the shipment is being made. All Deliverables shall be suitably packed, marked, and shipped in accordance with any shipping instructions specified herein and prepared for shipment to secure the lowest transportation cost in compliance with standard carrier regulations. Seller shall be liable for any difference in freight charge arising from its failure to a) follow any shipping instructions specified herein or b) properly describe the shipment. Purchaser and Seller mutually agree to assist each other in obtaining documents and other information necessary for the prosecution of claims against carrier.

5. Quantity
The quantity of Deliverables delivered shall not be greater than the amount specified in Purchaser’s order. Purchaser shall have no obligation to accept or pay for any Deliverables delivered or provided by Seller in excess of that specified in an order. Purchaser may return excess quantities to Seller at Seller’s expense,

6. Invoices and Payment
All invoices must show Purchaser’s purchase order number and the destination to which the Deliverables were delivered or shipped. If any sales, use, duty, excise or other similar tax or change is applicable to an order for which Purchaser has not furnished or agreed to furnish an exemption certificate, it must be separately itemized on the invoice. Payment shall be made per the terms established on an order. Payment is subject to any adjustment for shortage or rejection of supplied Deliverables.  

7. Responsibility
Unless otherwise provided in an order, Seller shall have title and bear risk of any loss or damage to any Deliverables purchased hereunder until delivered to Purchaser at the destination specified on the face of an order; or, if no such destination is specified, at Purchaser’s principle place of business. Upon such receipt, title shall pass from Seller to Purchaser, provided that passing of such title shall not constitute acceptance of any Deliverables by Purchaser.

8. Inspection
All Deliverables delivered hereunder are subject toPurchaser’s inspection and acceptance within a responsible time after arrival at the ultimate destination. If any Deliverables are found to be unsatisfactory,defective, or of inferior quality or workmanship, or fail to meet any specifications or any other requirements of an order, Purchaser may, in addition to its other rights and remedies, reject all or some of such Deliverables and require either the replacement or a refund if payment has already been made. Payment for any Deliverables hereunder shall not be construed to be an acceptance thereof. Without limiting the foregoing, Seller shall reimburse Purchaser for a) any amounts paid by Purchaser on account of the purchase price of any non-conforming Deliverables, including any costs incurred by Purchaser in connection with the return of such Deliverables.

9. Changes; Cancellation
Purchaser may, at its option, upon written notice to Seller, terminate, reduce or make changes to any order prior to shipment.Upon such notice being given, Seller shall immediately stop performance andPurchaser’s only obligation shall be to pay for any Deliverables shipped prior to the cancellation, irrespective of whether such Deliverables cover standard stock merchandise or Deliverables to be manufactured or fabricated to Purchaser’s specifications or specifications prepared by Seller for Purchaser.

10. Standard Warranties
In addition to and without prejudice to all other warranties, express or implied by law, Seller warrants that all Deliverables delivered or specified within an order (i) will conform to its description and any applicable specifications, (ii) will be free from all defects in material and

workmanship, and (iii) will be of good merchandise quality and fit for the purposes for which they are intended. The foregoing warranties are in addition to any additional standard warranty or service guarantee given by Seller to Purchaser. Seller further warrants to Purchaser that all Deliverables made to Purchaser when delivered shall be free and clear of all liens and encumbrances and the Seller has good and marketable title to same with authority to transfer good and marketable title to Purchaser free and clear from any third party liens or claims.

11. Patents, Trademarks and Copyrights
In addition to the StandardWarranties set forth above, Seller warrants that the sale or use of theDeliverables will not infringe or contribute to the infringement of any patents,copyrights or trademarks in either the United States or foreign countries.

12. Default
All warranties, express or implied, shall survive inspection,acceptance and payment. In the event of Seller’s breach of any such warranty, in addition to other rights and remedies available to Purchaser, at law or inequity, Purchaser may return any Deliverables for a full refund, or direct Seller to promptly correct the breach by repairing or replacing the applicable items.Purchaser may also at its option and without prejudice to any of its other rights,cancel any undelivered Deliverables.

13. Indemnification
Seller shall indemnify, defend, protect and hold harmless Purchaser from any and all actions, claims, costs, damages, expenses, fees(including attorney fees), investigations, liabilities, losses or suits arising out of or related to (A) any breach of any obligation, representation, warranty or covenant of Seller pursuant to any order by Purchaser, or (B) the Deliverables provided or to be provided pursuant to Purchaser’s order, including but not limited to losses which (i) involve any actual or alleged injuries, death, property damage or any other damage of any kind resulting in whole or in part from defective or allegedly defective goods or services; (ii) involve any actual or alleged infringement of any intellectual property rights by reason of the use or sale of any Deliverables, (iii)involve any actual or alleged violation of any law, regulation, rule or ordinance relating to the use or sale of any Deliverables, or (iv) involve any claims of Seller, its agents, representative contractors or employees relating to any actual or alleged injuries, death, property damage or any other damages of any kind sustained in providing the Deliverables.

14. Liability
Without limiting Section 13 above, in accepting an order, Seller agrees that he, or it, is an independent contractor for all intents and purposes and that he, or it, will indemnify and hold harmless Purchaser from any claims or damages arising from injury to Seller’s employees from any cause whatsoever while in or about Buyer’s plant or property, and Seller further agrees to carry all workmen’s compensation necessary under Federal or State Statutes and also agrees that none of the individuals whose compensation for service is paid by the Seller shall be deemed to be employed by the Purchaser for the purpose of any tax or contribution levied by Federal or State Government and the Seller accepts exclusive liability for any payroll taxes or contributions imposed by Federal orState laws covering his or its agents or employees.

15. Limitation of Liability
Purchaser shall not by reason of termination,cancellation or breach of an order be liable to Seller for any compensation,reimbursement or damages, including in particular, but not limited to, any special, incidental, or consequential damages, either on account of present or prospective profit or sales or anticipated profit or sales, or on account of expenditures, investments or commitments.

16. Export and Import
To the extent required by law, Purchaser and Seller shall cooperate with one another to submit to applicable customs authorities, all information and documentation necessary to comply with applicable customs and export and import requirements of each county into which goods will be exported and each country into which they will be imported.

17. Additional Terms
Orders that are subject to a federal contract,subcontract or federally assisted construction agreement, shall be subject toPurchaser’s Supplemental Purchase Order Terms and Conditions, a copy of which is incorporated herein by reference and shall be made available to Seller upon request.

18. Assignment
Seller’s rights and obligations hereunder may not be assigned without our prior written consent. Any purported assignment in violation of this section shall be void.

19. Non-Waiver
Purchaser’s failure at any time to require strict performance by Seller of any of the provisions herein shall not waive or diminish our right thereafter to demand strict compliance therewith or with any other provisions.Waivers of any default shall not waive any other default.

20. Applicable Law
The rights and duties of the parties shall be governed by the laws of the State of New York. All disputes between Purchaser and Seller relating to the subject matter of an order or the Deliverables shall be resolved exclusively in the federal and state courts located in Onondaga County, NewYork and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto.

21. Entire Agreement
The terms and conditions set forth herein represent the entire agreement between the parties hereto with respect to the subject matter hereof and supersede all prior communications, representations or agreements,whether written or oral.