FELTON BRUSH, INC.
STANDARD TERMS AND CONDITIONS OF SALE

1. ENTIRE AGREEMENT.  These Standard Terms and Conditions of Sale and any quotation and order acknowledgment issued by Felton or agreement signed by Felton into which they are incorporated by reference, if any (collectively, the “Agreement”), contain the entire and only agreement between the parties relating to the sale of products ("Products") by Felton Brush, Inc. ("Felton") to its customer ("Buyer").  Any representation, affirmation of fact, and course of prior dealings, promises or conditions in connection therewith or usage of trade not expressly incorporated in this Agreement shall not be binding on Felton.  No waiver, consent, modification or change of terms herein shall bind either party unless in writing signed by both parties, and then such waiver, consent, modification or change shall be effective only in the specific instance and for the specific purpose given.  The rights and obligations contained herein shall inure to and be binding upon the parties, their legal representatives, successors and permitted assigns.

2. BUYER'S TERMS AND CONDITIONS.  Failure of Felton to object to terms and conditions contained in any order, confirmation or other document provided or delivered by Buyer via mail, facsimile or other forms of electronic data interchange (EDI) or electronic commerce (including, without limitation, Buyer’s own web site) or otherwise shall not be construed as a waiver of the terms and conditions of this Agreement nor an acceptance of any terms and conditions contained in any such order, confirmation or other document.  Felton hereby gives notification of objection to and rejection of all terms and conditions heretofore or hereafter proposed by Buyer that are different from or additional to those specified in this Agreement and that are not separately agreed to in writing by Felton, including, without limitation, all such terms and conditions that Felton may be required by Buyer to acknowledge in order for Felton to access, electronically or otherwise, information necessary for Felton to perform, or to facilitate Felton’s performance, hereunder.  Notwithstanding any terms or conditions of Buyer, the sale of Products by Felton is expressly limited to and made conditional upon the terms and conditions contained herein.  Commencement of performance and/or delivery by Felton shall be for Buyer's convenience only and shall not be deemed or construed to be acceptance of any of the Buyer's terms and conditions.  If these terms and conditions are not acceptable, Buyer must immediately notify Felton. Buyer's purchase and acceptance of Products from Felton constitutes Buyer's assent to and acceptance of all terms and conditions contained herein.

3. QUOTATIONS, PRICES, ADDITIONAL CHARGES AND ADMINISTRATIVE FEES.  All Felton quotations are subject to the terms and conditions stated herein as well as any additional terms and conditions that may appear on the face thereof. In the case of a conflict between the terms and conditions stated herein and those appearing on the face of such quotation, the latter shall control.  Felton's prices and quotations are subject to the following: (a) all prices are in United States Dollars; (b) all published prices are subject to change without notice; (c) unless stated otherwise in the applicable quotation, prices are net, F.O.B. shipping point, all transportation, insurance and other charges to point of destination to be paid by Buyer; (d) prices are exclusive of all charges or levies of any nature, including all federal, state, municipal or other governmental excise, sales, use, value added, occupational, import duties, or similar taxes or tariffs now in force or enacted in the future (collectively, the “Additional Charges”) and, therefore, are subject to an increase in an amount equal to any such Additional Charges that Felton may be required to collect or pay upon sale or delivery of products purchased, or in lieu thereof, Buyer shall provide Felton with a certificate of exemption or similar document acceptable to the appropriate taxing authorities; (e) prices quoted are for Products only and do not include technical data, proprietary rights of any kind or patent or other intellectual property rights; (f) unless otherwise specified in writing, all quotations are firm for a period of thirty (30) days from the date thereof and constitute offers, provided that, budgetary quotations and estimates are for preliminary information only and shall neither constitute offers, nor impose any responsibility or liability upon Felton; (g) stenographical, typographical and clerical errors are subject to correction; and (h) quotations are made against specified designs, drawings, plans and/or specifications, or if not so stated, the applicable Felton part number and standards shall govern.  Any changes in specified designs, drawings, plans and/or specifications furnished by Buyer shall require a new quotation for price and delivery.

Felton reserves the right to charge Buyer an administrative fee of no less than $50.00 to cover any and all costs incurred and time spent by Felton or on Felton’s behalf in connection with the processing of a request by Buyer that Felton provide it with documents or records that have already been provided to Buyer in the ordinary course of business.

4. ACKNOWLEDGEMENT/MODIFICATION/TERMINATION OF ORDERS.  All orders placed with Felton are concluded via written acknowledgment by Felton and are subject to the terms and conditions stated herein.  In the case of a conflict between the terms and conditions stated herein and those appearing on the face of such acknowledgment, the latter shall control.  In the case of a conflict between the terms and conditions stated in a Felton quotation and those appearing on the face of a Felton acknowledgment, the latter shall control.  Orders acknowledged by Felton may not be modified, rescinded or terminated except in writing by duly authorized representatives of Felton and Buyer, respectively.  If all or part of an order is rescinded or terminated by such writing (the “Terminated Order”), in the absence of a contrary written agreement between Felton and Buyer, Buyer shall be required to pay Felton all costs committed or incurred by Felton as of the date of Buyer’s written request for termination for any and all special work, design or material relating to the Terminated Order, plus liquidated damages of five percent of the total amount of said order if termination occurs within the first half of the delivery period agreed upon by Felton and Buyer, or ten percent if within the last half of such period, except that any Products scheduled for completion within thirty (30) days of Buyer's request for termination will be accepted and paid for in full by Buyer.

5. PAYMENT TERMS; REVOCATION OF CREDIT.  Payment of the price and any Additional Charges shall be 1% ten (10) days, net thirty (30) days, and shall be made in accordance with the applicable authorized and valid Felton quotation.  All payments shall be made in U. S. currency.  Payments not received within the payment terms shall be assessed a finance charge at the rate of one and one-half percent (1.5%) per month or the maximum rate permitted by law, whichever is less, starting from the due date.  Buyer shall be liable for any costs or expenses incurred by Felton in collecting any late payment, including, but not limited to, administrative and personnel costs, collection agency fees and expenses, court costs, and attorneys’ fees and expenses.  In addition, Felton shall not be obligated to continue performance on any delinquent account.

Felton reserves the right, in its sole discretion, to revoke, alter or suspend any credit or payment terms already extended or require full or partial payments in advance of any shipment or other performance, or otherwise defer, decline or to make shipments and/or terminate the subject order without liability to Felton.

6. SHIPMENT.  Felton will ship in accordance with instructions supplied by Buyer, but if Buyer fails to furnish such instructions prior to the shipping date, Felton will select what is, in its opinion, the most satisfactory routing for the shipment.  If Buyer is to pick up Products and has not done so within ten days after notification that they are ready for shipment, Felton may ship the Products through a commercial carrier designated by Felton.  Any prepayment by Felton of freight charges shall be for the account of Buyer and shall be paid by Buyer with and in addition to the purchase price. Buyer shall also be responsible for applicable handling and insurance charges.  All risk of loss or damage, title in and right of possession of the Products and responsibility for all transportation expenses shall pass to Buyer upon delivery to the carrier.  In no event shall Felton be liable for any delay in delivery, nor shall the carrier be deemed an agent of Felton.

7. SECURITY INTEREST.  Felton reserves, and Buyer hereby grants Felton, a security interest in the Products delivered to Buyer to secure payment of all amounts due from Buyer to Felton.  Buyer agrees that Felton shall have the right to file or record a financing statement or similar documentation pursuant to applicable law to evidence Felton's security interest in the Products.  Buyer agrees, from time to time, to take any act and execute and deliver any document (including, without limitation, financing statements) reasonably requested by Felton to transfer, create, perfect, preserve, protect and enforce this security interest.  In the event of any failure of  Buyer to execute and deliver any such document, it is agreed that Felton may execute such statements in Buyer's name under power of attorney.  Buyer agrees in the event of default of payment to make all Products available to Felton upon demand and pay all reasonable costs and expenses (including attorneys’ fees) incurred by Felton in the enforcement of Felton's rights hereunder.  Any repossession or removal of the Products shall be without prejudice to any other remedy of Felton hereunder, at law or in equity.

8. INSPECTION AND ACCEPTANCE.  Buyer shall examine all Products promptly upon receipt.  No later than thirty (30) days after delivery, Buyer shall notify Felton in writing of any shortage or nonconformance to applicable designs, drawings, plans and specifications.  Failure to give Felton such timely notice shall be deemed an unqualified acceptance by Buyer of the delivered Products and said Products shall be deemed to conform to the applicable designs, drawings, plans and specifications.  Buyer expressly waives any rights it may have o revoke acceptance after such thirty-day period.  The Products will be deemed to conform to the applicable designs, drawings, plans and specifications despite minor discrepancies that are usual in the trade.  Where the Products are materially non-conforming and timely notice of nonconformance is given by Buyer hereunder, Felton’s exclusive obligation shall be, at Felton’s option, to repair or replace the Products, or to refund to Buyer the purchase price paid for the Products.  The remedy set forth herein shall serve as Buyer’s exclusive remedy with regard to materially non-conforming Products.

9. LIMITED WARRANTY.  Felton warrants to Buyer that at the time of shipment, and for a period of ninety (90) days thereafter, the Products will be free from defects of material and workmanship.  This limited warranty does not apply to expendable parts and does not cover normal wear and tear.  This limited warranty does not extend to any product that has been damaged or rendered defective as a result of accident, misuse, abuse, negligence, installation, act of God, disaster, or other external cause. Felton’s exclusive obligation with respect to defective Products shall be, at Felton’s option, to repair or replace the Products, or to refund to Buyer the purchase price paid for the Products. The remedy set forth herein shall serve as Buyer’s exclusive remedy with regard to defective Products.

NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE FOREGOING IS BUYER’S SOLE AND EXCLUSIVE WARRANTY GIVEN BY FELTON WITH RESPECT TO THE PRODUCTS.  FELTON MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT AND ALL OTHER WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE ARE HEREBY EXCLUDED.  IMPLIED WARRANTIES THAT MAY BE IMPOSED BY LAW ARE LIMITED IN DURATION TO THE LIMITED WARRANTY PERIOD SET FORTH HEREIN.  BUYER PURCHASES AND ACCEPTS THE PRODUCTS SOLELY ON THE BASIS OF THE LIMITED WARRANTY EXPRESSED HEREIN. 

10. LIMITATION OF LIABILITY.  FELTON’S LIABILITY ARISING FROM OR IN CONNECTION WITH THE PRODUCTS OR THIS AGREEMENT SHALL BE LIMITED EXCLUSIVELY TO REPAIR OR REPLACEMENT OF THE PRODUCTS OR REFUND OF THE PURCHASE PRICE PAID BY THE BUYER, AT SELLER’S SOLE OPTION.  THE LIABILITY OF FELTON HEREUNDER FOR ALL CLAIMS SHALL IN NO CASE EXCEED THE SUM OF BUYER’S PAYMENTS FOR THE PRODUCTS THAT ARE THE SUBJECT OF CLAIM OR DISPUTE.  IN NO EVENT SHALL FELTON BE LIABLE FOR ANY SPECIAL, INDIRECT, SECONDARY, PUNITIVE, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER WHETHER ALLEGED TO ARISE FROM BREACH OF CONTRACT, EXPRESSED OR IMPLIED WARRANTY, IN TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF FELTON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING FROM OR RELATING TO ANY INJURY TO PERSONS OR PROPERTY, LOSS OF PRODUCTION TIME, LOSS OF ANTICIPATED REVENUE OR PROFITS, OR CLAIMS MADE BY END-USERS. 

11. INDEMNIFICATION.  Buyer hereby warrants and represents that any designs, drawings, plans, specifications, tooling, equipment, materials or other items provided by it or its representatives to Felton do not infringe upon any patent, copyright, trade secret or other third-party right, and agrees to hold harmless, defend and indemnify Felton and its affiliates, successors and assigns from and against any costs, damages, liabilities and expenses (including reasonable attorneys’ fees) that may arise from or as a result of any such infringement or Buyer's activities, including, without limitation, product liability and customer warranty and service claims, provided that (i) Felton shall have promptly provided Buyer written notice of the suit alleging such infringement or activities of Buyer, and (ii) Buyer is given complete authority and reasonable cooperation, information, and assistance required for the defense, settlement, or compromise thereof. 

In the event any Product to be delivered by Felton to Buyer is not to be made in accordance with designs, drawings, plans and/or specifications provided by Buyer, but rather is the design of Felton, Felton agrees to hold harmless and indemnify Buyer against any costs, damages, liabilities and expenses (including reasonable attorneys’ fees) awarded by a court of competent jurisdiction in any suit or suits for the infringement of any United States patent(s) by reason of the sale or use of such product as delivered by Felton; provided that (i) Buyer shall have promptly provided Felton written notice of the suit alleging such infringement, and (ii) Felton is given complete authority and reasonable cooperation, information, and assistance required for the defense, settlement, or compromise thereof.  Should any Products delivered hereunder become or, in Felton's opinion, be likely to become the subject of such a claim, Felton may, at its option, either (i) procure for Buyer the right to continue purchasing and using such products, or (ii) replace or modify such products so that they become non-infringing, or (iii) request that Buyer return such products and, upon receipt, reimburse Buyer the full purchase priced paid for such products as full and complete satisfaction for any claims Buyer may have against Felton arising from such infringement. In such event, Felton may withhold further shipments of infringing or potentially infringing Felton-designed Products.

Felton shall have no liability or obligation to Buyer hereunder with respect to any United States patent infringement or claim thereof based upon (i) compliance with designs, drawings, plans or specifications provided by Buyer or its representatives, (ii) use of the Products by Buyer or any agents or customers of Buyer in combination with, or the incorporation or imbedding of the Products into, devices or products not purchased hereunder where the Felton-designed Product alone would not be infringing, (iii) use of the Products by Buyer in an application or environment for which such products were not designed or contemplated, (iv) modifications of the Products by Buyer or any agents or customers of Buyer, or (v) any claims of infringement of a patent in which Buyer or any affiliate or customer of Buyer has an interest or license.  Felton's liability hereunder shall not exceed the purchase price paid by Buyer for Products found to be infringing.  The foregoing states the entire liability of Felton with respect to infringement of patents or claims thereof by Felton-designed Products or any part thereof or by their operation.

12. DEFAULT.  Any of the following will constitute an act of default hereunder: (1) the failure of Buyer to perform any term, condition or covenant of this Agreement, where such failure has not been corrected within thirty (30) days of the date of written notice of such failure given by Felton; or (2) the failure of Buyer to pay an invoice issued hereunder within the due date thereof; or (3) Buyer (i) admits in writing its inability to pay its debts generally as they become due, (ii) files a petition or has a petition filed against it in bankruptcy or any similar action under relevant bankruptcy or insolvency proceedings, (iii) makes an assignment for the benefit of its creditors, (iv) commences a proceeding for the appointment of a receiver, trustee, liquidator or conservator of itself or of the whole or any substantial part of its property, or (v) files a petition seeking reorganization, composition, liquidation, dissolution or similar arrangement under the federal bankruptcy laws or any other similar applicable law, statute or regulation of the United States or any country, state, county, province or other jurisdiction to which Buyer is subject.

In the event of a default, Felton shall have the right to, in addition to any other remedies it may have at law or in equity, terminate all applicable orders, recover any and all monies that may be due, and repossess any Products sold hereunder.

Felton reserves the right to start production and commit funds in time to meet Buyer's delivery date based on conditions in its plant and lead time required by Felton's suppliers.  In the event of default by Buyer, Buyer shall be responsible for any losses or charges to Felton resulting therefrom.

13. MODIFICATION OF PRODUCTS/TOOLING.  Felton reserves the right to modify the specifications of Products designed by Felton at any time without incurring any obligations to make equivalent changes in Products previously manufactured or shipped.  Unless otherwise agreed in writing, all costs for tooling and similar items (including design and development costs) that are incurred by Felton to make the Products to be delivered to Buyer will be paid by Buyer in addition to the price of the Products and are due and payable upon completion of the tooling or similar items.  Unless otherwise agreed in writing by the parties, all such tooling and similar items used to make the Product to be delivered to Buyer is the exclusive property of Felton, and Buyer shall not have an rights to ownership, possession or removal, or to prevent their disposal or use by Felton for others.

14. INTELLECTUAL PROPERTY.  Felton intends to utilize proprietary information and manufacturing process (“Proprietary Information”) in manufacturing the Products and in discharging its other responsibilities hereunder.  Buyer acknowledges and agrees that as between the parties hereto, the Proprietary Information is proprietary to Felton and constitutes a trade secret under the Uniform Trade Secrets Act as adopted in the State of New Hampshire.  Unless otherwise agreed in writing by the parties, Buyer will acquire no rights to use and/or disclose the Proprietary Information by virtue of the utilization of Proprietary Information in the Products’ manufactured or sold to Buyer hereunder. 

Unless otherwise agreed in writing by the parties, all designs, drawings, plans, process programs and text in any format provided to Buyer by Felton are the sole property of Felton, are protected by copyrights and international laws regarding copyrights, and may not be mechanically or electronically duplicated, reverse engineered or reproduced without Felton’s express written consent.

15. CONFIDENTIALITY.  Buyer shall maintain in confidence all information and know-how disclosed by Felton, whether oral or in writing, that is either designated as proprietary and/or confidential or, by the nature of the circumstances surrounding disclosure, should in good faith be treated as proprietary and/or confidential (“Confidential Information”), provided that Buyer may disclose Confidential Information on a need-to-know basis to its employees and representatives who have been apprised of these non-disclosure obligations and agreed to be bound by them.  Buyer shall use at least the same degree of care in safeguarding the Confidential Information as it uses in safeguarding its own information of a similar nature, subject to a minimum standard of reasonable diligence and protection.  Buyer’s obligation of non-disclosure hereunder shall not apply to Confidential Information which it can demonstrate by clear and convincing evidence: (a) is or becomes a matter of public knowledge through no fault of Buyer, (b) was or becomes available to Buyer on a non-confidential basis from a third party, provided that such third party is not, to Buyer’s knowledge, bound by an obligation of confidentiality to the disclosing party with respect to such Confidential Information, (c) was independently developed by Buyer without reference to Confidential Information, or (d) is required to be disclosed by law, provided that Felton is promptly notified by Buyer in order to provide Felton an opportunity to seek a protective order.  This provision is in addition to and not in limitation of any other agreement entered into by Felton and Buyer relating to the protection or nondisclosure of Confidential Information.

16. FORCE MAJEURE.  Neither party shall be held responsible for any delay or failure hereunder caused, directly or indirectly, by fire, flood, accident, riot, explosion, war, strike, shortage of labor, fuel, power, materials or supplies, embargo, governmental requirement, civil or military authority, gang violence, terrorism, acts of God, act or omission of carriers or subcontractors, or other similar causes beyond the parties’ control.

17. GOVERNING LAW.  The validity, interpretation and performance of this Agreement shall be governed by the laws of the State of New Hampshire without reference to its principles of conflicts of law rules, including Article 2 of the Uniform Commercial Code as enacted in New Hampshire, and shall not be governed by the provisions of the United Nations Convention on Contracts for the International Sale of Goods.  Any legal or equitable actions arising out of or relating to the transactions contemplated hereby shall be brought only in federal or state court in the State of New Hampshire, and both parties hereby irrevocably submit to the jurisdiction and venue of said court.

18. DISPUTE RESOLUTION.  The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration.

Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from JAMS' panel of neutrals, and in scheduling the mediation proceedings. The parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation.

Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or 45 days after the date of filing the written request for mediation, whichever occurs first. The mediation may continue after the commencement of arbitration if the parties so desire. Unless otherwise agreed by the parties, the mediator shall be disqualified from serving as arbitrator in the case. Any arbitration shall be final and binding. The arbitrator shall award reasonable attorneys' fees and costs of arbitration to the prevailing party as part of the award. Judgment on the arbitrator’s award may be entered in any court of competent jurisdiction.

The mediation and arbitration requirements of this Section 18 shall not preclude parties from seeking from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying claim or dispute shall be resolved in accordance with this Section 18.

Any mediation and/or arbitration required hereunder shall be held in such places as the parties shall agree upon and in the absence of such an agreement, in the State of New Hampshire.

19. ASSIGNMENT.  Buyer shall not delegate any duties or assign any rights or claims hereunder without Felton's prior written consent, and any such attempt at delegation or assignment without Felton’s prior written consent shall be void.

20. INDEPENDENT CONTRACTORS.  It is understood and agreed that Felton and Buyer are, and at all times shall remain, independent contractors and no partnership or joint venture is intended or implied by the undertakings set forth herein.  At no time shall either party represent to any third party that it is the agent of the other.  Felton and Buyer further covenant that no authorization shall be given to any employee of either of them to act on behalf of the other.  In no event shall either party at any time have authority to make any contracts, commitments or undertake any obligations on behalf of the other. 

21. SEVERABILITY.  The provisions of this Agreement shall be deemed severable, and the invalidity or unenforceability of any one or more of the provisions of this Agreement shall not affect the validity and enforceability of the other provisions of this Agreement. 

22. SURVIVAL.  Any obligations which either expressly or by their nature are to continue after the termination or expiration of this Agreement shall survive and remain in full force and effect.

23. CAPTIONS.  The captions or headings are for convenience only and are not intended to limit or define the scope or effect of any provision of this Agreement.