INTERNET VIEWING TERMS & CONDITIONS

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SALES TERMS & CONDITIONS

S. J. Controls, Inc. (“S.J. Controls”) and CUSTOMER agree that these Terms and Conditions shall govern exclusively the sale or licensing by S.J. Controls of all hardware, firmware, software and services (collectively referred to as “Goods”). The term “Services” shall include without limitation any programming and commissioning of a control system, equipment start-up and repair, application engineering Services, on- and off-site classroom training courses, and exchange and repair of Goods. No modification to these Terms and Conditions shall be binding upon S.J. Controls unless in writing and signed by President or Vice President of S.J. Controls.

Unless otherwise provided in writing by S.J. Controls, S.J. Controls warrants for a period of one (1) year from the date of S.J. Controls invoice that all hardware furnished under the order will be of merchantable quality free from defects in material, workmanship and design each as determined, at the date of shipment by S.J. Controls, by generally recognized, applicable and accepted practices and procedures in the industry - to include any specifications agreed to in writing by S.J. Controls prior to the date of shipment. S.J. Controls will not be liable for any design furnished by CUSTOMER and incorporated into hardware. Hardware includes products purchased by S.J. Controls for sale with the hardware manufactured by S.J. Controls when the decision to include such products is solely that of S.J. Controls Otherwise, any warranty applicable to such products shall be limited solely to the warranty extended to S.J. Controls by the original manufacturer. Repaired or replacement hardware is warranted for a period of six (6) months from the date of invoice, or the remainder of the original warranty term, whichever is longer.

Unless otherwise provided in an S.J. Controls or third party license agreement, S.J. Controls warrants for a period of one (1) year from the date of invoice that the software or firmware furnished under this order will perform in accordance with published or other written specifications prepared, approved, and issued by S.J. Controls, when used with specifically identified hardware. S.J. Controls makes no representation or warranty, express or implied, that the operation of the software or firmware will be uninterrupted or error free, or that the functions contained in the software or firmware will meet or satisfy the CUSTOMER’s intended use or requirements. Any software or firmware support is limited to the terms and conditions of the S.J. Controls license agreement or S.J. Controls extended support agreement. Software and firmware corrections are warranted for a period of three (3) months from the date shipped by S.J. Controls, or the remainder of the original warranty term, whichever is longer. Satisfaction of these warranties, consistent with other provisions herein, will be limited to the replacement, or repair or modification of, or issuance of a credit for the Goods involved, at S.J. Controls’ option, only after the return of such Goods with S.J. Controls’ consent in accordance with Return of Equipment. Any warranty service (consisting of time, travel and expenses related to such Services) performed other than at S.J. Controls’ factory, shall be at CUSTOMER’s expense. Warranty satisfaction is available only if (a) S.J. Controls is promptly notified in writing upon discovery of an alleged defect and (b) S.J. Controls’ examination of the subject Goods discloses, to its satisfaction, that any alleged defect has not been caused by misuse; neglect, improper installation; improper operation; improper maintenance, repair, alteration or modification; accident; or unusual deterioration or degradation of the Goods or parts thereof due to physical environment or due to electrical or electromagnetic noise environment. THESE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE and thereby excludes certifications or the like for product performance, use or design with respect to any standard, regulation or the like. THESE WARRANTIES EXTEND ONLY TO CUSTOMER PURCHASING FROM S.J. CONTROLS.

If Customer has credit satisfactory to S.J. Controls, payment shall be made no later than thirty (30) days from date of invoice, or C.O.D. if indicated on Proposal, Invoice or Statement. Any balance not paid within thirty (30) days shall accrue interest at 1½% per month, or 18% per annum. If payment of any amount owed to S.J. Controls is not made when due, S.J. Controls reserves the right (in addition to and without limitation of its other rights) to suspend further performance, without liability, until such payment has been made.

In the event S.J. Controls institutes a collection action for amounts owed for Goods and Services rendered, S.J. Controls shall be entitled to recover all attorney’s fees incurred, court costs and interest at 1½% per month from 30 days of the date of invoice.

There are (2) methods of shipment offered: 1) CUSTOMER will not pay for freight charges if the CUSTOMER accepts a 4-6 week lead time for shipment of EBUs. 2) Freight paid by CUSTOMER at time of order. In this instance our online order form is connected to UPS for access to real-time UPS rates. CUSTOMER may select the preferred shipment service time and pay for the freight at the time of purchase. All shipments are insured to the full equipment value. Shipment will be F.O.B. S.J. Controls’ factory, warehouse or other point of shipment by S.J. Controls. Scheduled or stipulated shipping dates are approximate and based upon prompt receipt of all necessary information from CUSTOMER. If shipment is delayed at the request of, or due to acts or omissions by CUSTOMER, S.J. Controls shall have the right to store Goods at a place of its own choice at CUSTOMER’s risk and expense. Risk of loss or damage shall pass to CUSTOMER upon shipment from F.O.B. point.

Title to hardware shall remain with S.J. Controls as security only and until full payment is received. Title for software or firmware remains with S.J. Controls and is licensed for use by CUSTOMER pursuant to S.J. Controls’ license agreement.

S.J. Controls will pack Goods for air shipment and underdeck overseas shipment in accordance with its regular export standard.   Where such packing for export must conform to definite specifications that differ from the S.J. Controls standard, the CUSTOMER will be charged for the extra cost incurred.

All written Proposals automatically expire unless accepted within thirty (30) days from the date proposed.  Verbal proposals expire the same day they are made.  In order for catalog orders to be binding, proposals must specifically identify Goods and list the actual quantities involved.  All stenographic and clerical errors are subject to correction.  All proposals are subject to approval by an authorized representative of S.J. Controls.

Prices shown in any S.J. Controls publication are subject to change without notice and are not to be construed as a definite proposal or offer to sell by S.J. Controls. Such publication is maintained only as a source of general information, and any prices shown therein are subject to confirmation with a specific Proposal. With respect to Services, unless otherwise agreed in writing by S.J. Controls and CUSTOMER, (i) the price of any Services shall be S.J. Controls’ published price in effect as of the date such Services are provided; and (ii) S.J. Controls shall have the right to increase or decrease the price of any service, effective with respect to any portion of Services which have not been provided as of the date of such price change. Hourly service prices are based on a standard work day of 8:00 a.m. to 5:00 p.m. Monday through Friday. Unless otherwise agreed in writing between S.J. Controls and CUSTOMER, Services provided outside the standard work day will be charged at one and one-half times the applicable base service rate, except on Sundays and holidays observed by S.J. Controls, in which case the Services will be charged at two times the applicable base rate. Billable service time includes all time S.J. Controls representatives spend traveling to and from the job site and all time S.J. Controls representatives are available for work and waiting (whether on or off the job site) to perform the Services. In addition to billable service time, CUSTOMER shall pay or reimburse S.J. Controls at cost for all travel and living expenses incurred by S.J. Controls representatives (in accordance with S.J. Controls policies) in the course of providing Services to the CUSTOMER, including without limitation hotel, meals, air, rail, bus, or taxi transportation, car rental, and automobile mileage cost reimbursement if a personal vehicle is used.

CUSTOMER shall pay or reimburse S.J. Controls for all sales, use, excise or similar taxes. SJ will only collect taxes from customers whose office is located in CA or if purchased product is being shipped and utilized at a California location.

Software or firmware which is subject to S.J. Controls license agreement (a) is also subject to Terms and Conditions herein unless inconsistent with the S.J. Controls license agreement, in which case the license agreement shall govern, and (b) shall not be provided to CUSTOMER until CUSTOMER agrees to the terms and conditions of the S.J. Controls license agreement.

Any goods or technical data supplied by S.J. Controls under these Terms and Conditions are subject to the United States Export Administration Act and Regulations, which includes the licensing of certain products. It is the responsibility of the exporter to comply with the Act and Regulations.

Approval for return of Goods, whether under the Warranty clause or otherwise, must be obtained by S.J. Controls. No approval shall be granted for the return of Goods under any circumstances where the original invoice date for such Goods is more than thirty (30) days prior to the date that a request is made to S.J. Controls for such approval. All Goods returned must include reference to all pertinent order information for those Goods to include order, part, model and serial numbers as well as details of the system from which the Goods were removed, when appropriate.

Except for Goods under warranty, cost for placing Goods returned for credit in a salable condition will be charged to CUSTOMER. Goods returned must be carefully packed so as to reach S.J. Controls without damage. No credit will be issued for returned Goods where the net amount involved is less than $100.00, except when an error made by S.J. Controls is to be corrected. Goods accepted for return, which are not covered by warranty, are subject to a minimum restocking charge plus all transportation charges incurred by S.J. Controls. Replacement Goods returned to S.J. Controls must be in repairable condition; otherwise CUSTOMER will be billed per S.J. Controls policy. Goods built to CUSTOMER’s specification or Goods that have been modified by the CUSTOMER cannot be returned for credit under any conditions. All Goods to be returned must be shipped to locations stipulated by S.J. Controls at the time S.J. Controls approves the return of the Goods. The shipping container of all returned Goods must be clearly marked in accordance with S.J. Controls directives. All replacement Goods provided shall be furnished on an exchange basis, and may be new or used if equivalent to new in performance. The replaced Goods shall become the property of S.J. Controls.

Any order or contract may be terminated by the CUSTOMER only by written notice and upon payment to S.J. Controls of reasonable and proper cancellation charges, including but not limited to all labor, facility, and equipment costs identified in the order or contract and which have been incurred prior to the date of notice of cancellation. All additional costs resulting from the cancellation and ten percent (10%) of the final net price will be included in the cancellation charges to compensate for disruptions in scheduling, planned production, and other direct costs. Payment shall be made within thirty (30) days from date of invoice. S.J. Controls shall have the right to cancel any order or contract at any time by written notice for any breach of the order or contract by the CUSTOMER and S.J. Controls shall be entitled to collect cancellation charges as identified above. No termination by CUSTOMER for default shall be effective unless and until S.J. Controls shall have failed to correct such alleged default within forty-five (45) days after receipt by S.J. Controls of the written notice specifying such default.

In the event the parties agree to Technical Training (“Technical Training), the fee for Technical Training courses shall include all course materials furnished by S.J. Controls, but S.J. Controls shall not be responsible for any transportation, lodging, meal and other expenses incurred by CUSTOMER or its representative in attending the course. Published course descriptions are for general reference only. S.J. Controls reserves the right without liability to CUSTOMER, to change course schedules, modify course content, discontinue courses, limit class size and cancel courses. For Technical Training courses to be presented at S.J. Controls’ premises, a cancellation charge of fifty percent (50%) of the course tuition shall be payable if S.J. Controls receives notice of cancellation less than fourteen days before the first day of training for which CUSTOMER’s representative is scheduled. If a student fails to appear for a scheduled course, the full tuition will be payable. For Technical Training courses to be presented at CUSTOMER’s premises, a cancellation charge of fifty percent (50%) of the course fee shall be payable if S.J. Controls receives notice of cancellation less than thirty (30) days before the first day of scheduled training.

S.J. Controls shall not be liable for any loss, damage or delay in delivery due to acts of God or causes beyond its reasonable control including acts of the CUSTOMER, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, delays in transportation, transportation embargoes, or inability due to causes beyond its reasonable control to obtain necessary engineering talent, labor, materials or manufacturing facilities. In the event of such delay, the delivery date shall be extended for that length of time as may be reasonably necessary to compensate for the delay.

S.J. Controls shall defend any suit or proceeding brought against CUSTOMER or any customer of CUSTOMER, so far as the same is based upon a claim that the design or construction of Goods sold by S.J. Controls infringe a United States Patent, Copyright or Mask Work Registration (excepting a claim based upon a design or modification incorporated in such Goods at the request of CUSTOMER); provided that CUSTOMER promptly notifies S.J. Controls of any such suit or proceeding in writing and provided that a S.J. Controls’ expense (a) CUSTOMER gives S.J. Controls the right to defend or control the defense of any such suit or proceeding, including settlement, and (b) CUSTOMER provides all necessary information and assistance for defense. This obligation to defend shall extend, in the case of non-standard Goods sold by S.J. Controls to CUSTOMER, to a claim based upon the use of Goods but only when such use is not in combination with any other apparatus and only to the extent that S.J. Controls was informed by CUSTOMER of such use in writing prior to the date of S.J. Controls’ shipment of Goods. No implied license is granted to use the Goods in an infringing manner. S.J. Controls will pay all costs and damages finally awarded or agreed upon by S.J. Controls which are directly related to any such claim. In the event the Goods, or any part thereof, is in such suit held to constitute infringement and the use of said Goods or part is enjoined, S.J. Controls will at its own expense, either procure for the CUSTOMER the right to continue using such Goods or part, or replace same with non-infringing Goods, or modify the same so it becomes non-infringing or remove the Goods and refund the purchase price and the transportation and installation costs thereof. THIS PARAGRAPH SETS FORTH S.J. CONTROLS’ ENTIRE LIABILITY WITH RESPECT TO INTELLECTUAL PROPERTY.

S.J. Controls shall be provided such access to CUSTOMER’s premises as S.J. Controls deems reasonably necessary to enable S.J. Controls to provide Services to CUSTOMER in accordance with these terms and conditions and any applicable specification relating hereto. Notwithstanding anything in any visitor pass form, premises access agreement or similar document presented by CUSTOMER to any S.J. Controls representative as a condition of access to CUSTOMER’s premises, S.J. Controls and its representatives shall not (i) be liable for any claim, injury or damage to CUSTOMER, its agents, employees or contractors or any third party relating to or arising out of S.J. Controls’ visit to CUSTOMER’s premises, except for incidents occurring while S.J. Controls personnel are on CUSTOMER’s premises and only to the extent such claim, injury or damage results directly from the negligence of S.J. Controls’ representatives; (ii) waive any claim for loss or damage to person or property caused by CUSTOMER, its agents, employees, contractors, or any third party; (iii) release CUSTOMER, its agents, employees or contractors or any third party from any claim for injury, loss or damage to person or property occurring during S.J. Controls’ visit to CUSTOMER’s premises.

This agreement shall be deemed to be made in and performed in the State of California and shall be governed by and interpreted in accordance with the laws of the State of California including its provisions of the Uniform Commercial Code, but specifically excluding the provisions of the 1980 UN Convention on Contracts for the International Sale of Goods.