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ICM, Inc. Sales Order Terms and Conditions for Sale of Aftermarket Goods

These Sales Order Terms and Conditions ("Terms") are incorporated by reference in each ICM Sales Order for sale of Aftermarket Goods issued by ICM, Inc. ("Seller") to the original customer ("Customer") effective as of the Issue Date without necessity that these Terms be attached to the Sales Order.

I. General Terms and Conditions.The following General Terms and Conditions shall apply to all Sales Orders, regardless of Customer location.

A. Defined Terms.
1. "Aftermarket Goods" or "Goods" are items, products, equipment, etc. sold by Seller pursuant to these Terms that are not part of the initial plant construction.

2. "Purchase Order" is Customer's document submitted to document Customer's purchase of Goods. Any Purchase Order or other document submitted by Customer to document the purchase of Goods is subject to these Terms. Any pre-printed terms and conditions stated on the Purchase Order or terms and conditions in addition to or in conflict with these Terms shall be null and void.

3. "Sales Order" is Seller's document describing the Goods being sold by Seller. The Sales Order includes the description of the Goods, price for the Goods, and the proposed delivery dates.

B. Sales Order Issue, Validity Period, and Acceptance. All Sales Orders are subject to change or withdrawal prior to written acceptance without prior notice to Customer unless otherwise specifically stated in the Sales Order. All Sales Orders and any payment terms specified therein are subject to approval by Seller of Customer's credit. A Sales Order may be accepted by Customer through issue of a Purchase Order or other methods by which Customer normally purchases Goods, subject to the requirements of these Terms.

C. Warranty. Seller makes this express warranty (“Warranty”) to Customer as to the Goods identified on Seller’s Sales Order for Goods (as defined below). All other understandings, statements, and representations are specifically replaced and superseded by this Warranty, except and unless otherwise noted on the face of the Sales Order. As used in this Warranty, the term “Goods” shall mean those parts, stock items, equipment, components, assemblies, specification books, manuals, and other tangible items manufactured or produced by Seller or by a third party original equipment manufacturer (“OEM”) whether such Good is sold individually by Seller in its original state as provided to Seller by the OEM or the OEM's supplier or incorporated into an assembly by Seller or OEM prior to sale to Customer.

D. Types of Goods. Goods may include the following types of Goods.
1. New Goods. Those Goods that are new, unused, and not previously installed.
2. ICM-Specified Goods. Goods that are either specified by Seller in its specification books or maintained in inventory by Seller.
3. Specialty Goods. Those Goods that are new and unused, but were originally ordered by or manufactured by Seller for a specific customer or application. Seller has discounted the price of Specialty Goods in consideration of the limited warranty offered for them. Specialty Goods are specifically noted as such on the face of the Sales Order.
4. Refurbished Goods. Those Goods that are not new, are previously used, and have been repaired, cleaned, modified, rebuilt, and/or certified by Seller in preparation for resale and reuse. Seller has discounted the price of Refurbished Goods in consideration of the limited warranty offered for them. Refurbished Goods are specifically noted as such on the face of the Sales Order.
5. Other Goods. All Goods that are supplied by Seller at Customer’s request that are not ICM-Specified Goods are considered "Other Goods."

E. Express Warranty, Warranty Period, and Claim Procedure. As to all Goods sold by Seller pursuant to a Sales Order, Seller represents and warrants that it holds good and merchantable title to the Goods. Seller further warrants the following items.
1. For ICM-Specified New Goods.

a. 30-Day Limited Warranty. Seller warrants that ICM-Specified New Goods when delivered by Seller are new, unused, and free from defects in material and workmanship with proper maintenance when used in accordance with the OEM specifications and any written instructions or specifications provided by Seller for a period of thirty (30) days from the date the Goods leave Seller’s dock (the "Warranty Period"). Seller passes through to Customer the OEM warranty available for the ICM-Specified New Goods, if any, to the extent the same provides Customer with benefits or rights greater than those provided in the Seller Warranty.

b. Sole Discretion to Repair/Replace. Seller, in its sole discretion, will either repair or replace the ICM-Specified New Goods in accordance with industry-standard warranty practices only during the Warranty Period, and then only if the ICM-Specified New Goods fail or otherwise evidence a manufacturing defect independent of defective installation or operator misuse. Seller warrants any repaired or replaced ICM-Specified Goods furnished as a result of a Customer warranty claim only for the duration of the original Warranty Period that remains following Customer’s notification of defect to Seller. Beyond the Warranty Period, Customer must follow the claim procedure identified by the OEM for the additional warranty period available through the OEM, if any.

2. For Specialty Goods. Specialty Goods are sold as is with no warranty expressed or implied. All Specialty Goods are sold with an EXPRESS EXCLUSION OF ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THIS PARAGRAPH, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

3. For Refurbished Goods.

a. 30-Day Limited Warranty. Seller warrants that Refurbished Goods, when delivered by Seller, are fit for the intended use and functional, with proper maintenance when used in accordance with the OEM specifications and written instructions or specifications provided by Seller for a period of thirty (30) days from the date the Refurbished Goods leave Seller’s dock ("Refurb Warranty Period"). At the time the Refurbished Goods leave Seller's dock, Seller passes through to Customer the OEM warranty for the Refurbished Goods, if any, to the extent the same provides Customer with benefits or rights greater than those provided in this subparagraph.

b. Sole Discretion Repair, Return/Sale Cancellation, or Sale of New Goods. Seller, in its sole discretion will, but only if the Refurbished Goods fail or otherwise evidence a manufacturing defect independent of defective installation or operator misuse within the Refurb Warranty Period, repair the Refurbished Goods, accept return of the Refurbished Goods and cancel the sale, or provided Customer has agreed, provide New Goods to replace the failed Refurbished Goods, at an incremental price equal to the difference between the New Goods list price and the Refurbished Goods price. Seller warrants any repaired Refurbished Goods only for the duration of the original Refurb Warranty Period that remains following Customer’s notification of the defect to Seller. Beyond the Refurb Warranty Period, Customer must follow the claim procedure identified by the OEM for the additional warranty period available through the OEM, if any.

4. For Other Goods. Other Goods have only that warranty as expressed by the OEM, as it is stated in a package insert or on package labeling that accompanies the Other Goods and Customer’s sole recourse is to the OEM pursuant to that express warranty. ICM, Inc. Sales Order Terms and Conditions for Sale of Aftermarket Goods, Issue Date 06/08/2012 Page 2 of 3 F. Restocking Fee Applicable to Returned Goods. Customer will be assessed a restocking fee of twenty percent (20%) on any New Goods returned to Seller within sixty (60) days after such Goods are shipped by ICM if such Goods are not a valid warranty return. Customer shall pay all shipping costs associated with any returned Goods. Seller will not accept Specialty Goods for return. Refurbished Goods that are not valid warranty returns will not be accepted for return.

G.Disclaimer of All Other Warranties. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF EVERY KIND AND NATURE EXCEPT THOSE ON THE FACE OF THIS DOCUMENT, WHETHER EXPRESS OR IMPLIED, AS TO ALL GOODS SOLD BY SELLER. SELLER EXPRESSLY DISCLAIMS WARRANTY AS TO THE OWNERSHIP, PATENT, COPYRIGHT, DESIGN, TRADEMARK OR OTHER INDUSTRIAL OR INTELLECTUAL PROPERTY RIGHTS IN THE GOODS OR THE DESIGN THEREOF UNLESS THE GOODS OR THE DESIGN THEREOF HAVE BEEN PRODUCED BY THE SELLER AND NOT PURCHASED FROM A THIRD PARTY.

H. Payment Terms and Interest. Payment for all Goods shall be made in US Dollars and payments shall be due and payable within thirty (30) days of invoice receipt unless other payment terms are noted on the applicable Sales Order. Seller shall have no obligation to package or to ship Goods until any down payment or prepayment specified on a Sales Order is received by Seller.

1. If payment for Goods is not made in accordance with the payment terms on the applicable Sales Order, interest shall accrue and be paid by Customer to Seller in addition to the unpaid purchase price at the rate of eighteen percent (18%) per annum on the unpaid amount, or the highest interest rate allowed by law, whichever rate is less.

2. Payments made via wire transfer shall be to Seller's account at:

ABA ROUTING NUMBER 101100029
INTRUST BANK, N.A.  
BOX ONE
WICHITA, KS 67201-5001

CREDIT TO ACCT # 40769836
ICM, INC.
PO BOX 397 
COLWICH, KS 67030
 

    Customer's wire transfer instructions must reference the invoice number(s) being paid; otherwise payments will be applied to Customer’s unpaid invoices (including interest charges) at Seller’s discretion. . If the financial condition of Customer results in the insecurity of Seller, in its sole discretion, as to the ultimate collectability of the purchase price, Seller may, without advance notice to Customer, delay or postpone the delivery of Goods and Seller, at its option, is authorized to change the terms of payment to payment in full or in part in advance of shipment of the undelivered balance of said Goods.

I. Taxes. Any sales tax, manufacturers tax, VAT tax, withholding tax, excise tax, use tax, duty, inspection or testing fee, or any other tax, fee, or charge imposed by any government authority shall be paid by the purchaser in addition to the prices quoted.

J. Shipment of Goods. All quoted shipment dates are approximate unless specified otherwise on the Sales Order. Shipment of Goods sold under these Terms is governed by the 2010 INCOTERMS: TERMS OF SALE, and the terms and conditions of this Sales Order are EXW (EX WORKS) Seller's dock, Colwich, Kansas USA (unless a different delivery location and applicable shipment terms are otherwise specified by the Seller on the face of the Sales Order). Any costs for shipping, crating, heat-treated wood, fumigation, inspections, broker fees, duties, clearance fees, and insurance will be solely the Customer’s responsibility. Customer bears the risk of loss after Seller's delivery to Seller's dock (or in the case of a delivery direct from the manufacturer to Buyer, then the manufacturer's dock) unless a different delivery location is specified on Seller's Sales Order. Notwithstanding the forgoing, title to any Goods or any part thereof supplied hereunder shall not pass from Seller until all payments due have been fully made. If the Purchaser defaults on any of the payments herein, Seller may retain any partial payments which have been made as liquidated damages, and Seller shall be entitled to the immediate possession of the Goods and shall be free to enter the premises where the Goods may be located and remove them all without prejudice to Seller's right to recover any further expenses or damages Seller may suffer by reason of such non-payment.

K. Claims for Omitted or Damaged Goods. Any claims by Customer that Goods were omitted, shortages of Goods, or damaged Goods in a shipment are waived by Customer unless Customer provides written notice to Seller within seven (7) days after Customer's receipt of shipment. If Customer fails to notify Seller within seven days after the Goods have been received by Customer, such Goods shall conclusively be deemed to conform to the terms and conditions specified herein and in the Sales Order and the Goods will be considered irrevocably accepted by the Customer.

L. Customer's Indemnification Against Seller's Loss. The Customer will indemnify and hold Seller harmless against all losses including, but not limited to, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, or personal or bodily injury or death arising out of any Goods purchased pursuant to this Sales Order or is in any way related to the Goods and services sold under this Sales Order or Customer's use thereof. Customer's indemnification obligation applies regardless of the proportional fault attributed to Customer, Seller, or any third party but shall not apply if Seller is solely negligent. This Indemnification obligation requires Customer to pay any judgment against Seller and any reasonable legal and other professional fees and disbursements incurred by Seller in defense of such claims. Customer's indemnification obligation does not depend on the truth of the allegations made against Seller, Customer, or any third party. The forgoing indemnification obligations and all other provisions hereunder which limit or protect against Seller’s liability shall also apply to the full extent permitted by law and shall survive the termination, cancellation, or expiration of any agreements resulting from this Sales Order.

M.Ownership and Protection of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trade secrets, and other information or intellectual property disclosed or otherwise provided to Customer by Seller and all rights therein (collectively, "Intellectual Property") will remain the property of Seller and will be kept confidential by Customer. Customer shall have no claim to, nor ownership interest in, any Intellectual Property and such information in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Customer acknowledges that no license or rights of any sort are granted to Customer hereunder in respect of any Intellectual Property. All information furnished or made available by Seller to Customer in connection with the subject matter of any Sales Order or of Customer's Purchase Order shall be held in confidence by the parties. Customer agrees not to use such information or disclose such information to others without Seller's prior written consent.

N. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR ANY OTHER LEGAL THEORY. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE GOODS AND/OR THE SYSTEM TO WHICH GOODS ARE ATTACHED OR HAVE BEEN MADE A PART OF, COSTS OF ANY SUBSTITUTE GOODS, DOWNTIME, THE CLAIMS OF THIRD PARTIES, INCLUDING OWNERS, AND INJURY TO PROPERTY. THIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF A SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SELLER SHALL NOT BE LIABLE FOR ANY DAMAGES CLAIMED BY CUSTOMER BASED UPON A CLAIM BY ANY OTHER PARTY AGAINST CUSTOMER. IN NO EVENT SHALL SELLER'S TOTAL LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE GOODS IN QUESTION. ICM, Inc. Sales Order Terms and Conditions for Sale of Aftermarket Goods, Issue Date 06/08/2012 Page 3 of 3

O.Applicable Law and Disputes. This Sales Order shall be interpreted and governed by the laws of the State of Kansas, USA, without regard to its choice of law or conflict of law provisions. Customer irrevocably consents and submits itself exclusively to the jurisdiction of the applicable federal district courts situated in the District of Kansas for the purpose of any suit, action, or other judicial proceeding arising out of or related to this Sales Order. The Parties hereby expressly exclude in its entirety the application of the United Nations Convention on Contracts for the International Sale of Goods ("CISG") to the transactions contemplated by this Sales Order. The Parties agree that this Sales Order, all correspondence, and any documentation arising out of or related to this Sales Order will be in the English language and the American version thereof. Any translation of this Sales Order from such language shall be at Customer's sole expense, and Customer shall bear all risk of any errors in such translation.

P. Attorneys' Fees. In any action or proceeding arising out of these Terms and any Sales Order issued hereunder that requires resolution through arbitration or recourse to the courts, the prevailing party in such action or proceeding will be entitled to recover its reasonable attorneys' fees from the non-prevailing party in an amount to be determined by the arbitrator or court presiding over the action or proceeding.

Q.Clerical Errors. Any typographical, clerical, or other error or omission in any sales literature, Sales Quote, price list, invoice, or other document or information issued by Seller shall be subject to correction without any liability on the part of Seller.

R. No Third Party Benefit. These Terms and the content of any Sales Order are for the sole benefit of Customer and Seller only and confer no rights, benefits or claims upon any person or entity not a party hereto.

S. Entire Agreement. This Sales Order, with the other contract documents incorporated herein by reference, constitute the entire agreement between the Parties with respect to the transactions specified herein. This Sales Order supersedes all prior agreements and understandings between the Parties, both written and oral, and there are no verbal understandings, agreements, representations, warranties, courses of performance, courses of dealing, or customs of usage and trade between the Parties which are not expressly set forth herein.

T. Assignment. Neither party shall assign this Sales Order without the prior written consent of the other Party. Notwithstanding either Party's consent to any assignment or sub-subcontracts by the other Party, the assigning Party shall remain fully responsible for all obligations of this Sales Order.

U. Severability. If any provision of the Sales Order or these Terms and Conditions is found invalid, illegal, or unenforceable by law, the remainder of the Sales Order and these Terms and Conditions will remain enforceable and in full force and effect, and the parties will negotiate in good faith to substitute a provision of like economic intent and effect.

V. Order of Precedence. In the event of any inconsistency or conflict between or among the provisions of the Sales Order and these Terms and Conditions, such inconsistency or conflict shall be resolved by following the descending order of precedence: 1. Sales Order specific provisions provided on the face of the Sales Order that are not pre-printed or standard form wording; 2. Seller's specific International sales or other specialty terms contained herein; 3. These General Terms and Conditions.

II. International Terms. In addition to the above General Terms and Conditions, the following Terms and Conditions shall apply if the sale of Goods is to an entity or a location outside the continental United States of America. In the event of any conflict between the General Terms and Conditions and these International Terms, these International Terms shall apply to the international sale of Goods.

A. Import/Export and Compliance.

1. In performing the obligations of this Sales Order, both Parties will comply with the United States Foreign Corrupt Practices Act, 15 U.S.C. § 78 et seq (the "FCPA"), and any other anti-bribery laws and regulations of any applicable jurisdiction. Both Parties will further comply with United States export control laws, sanctions, regulations, and orders, as they may be amended from time to time, applicable to the export and re-export of goods, software, technology, or technical data ("Items") or services, including without limitation the Export Administration Regulations ("EAR"), International Traffic in Arms Regulations ("ITAR"), and all regulations and orders administered by the U.S. Department of Commerce, U.S. Department of Treasury, and the Office of Foreign Assets Control (collectively, "Export Control Laws"). Customer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the EAR, ITAR, Toxic Substances Control Act, or other applicable laws or regulations.

2. Each Party shall reasonably cooperate, and exercise reasonable efforts to support, the other Party in obtaining any necessary licenses or authorizations required to perform its obligations under this Sales Order.

3. The Party providing any Items under this Sales Order shall, upon request, notify the other Party of the Items' Export Control Classification Numbers ("ECCN’s") as well as the ECCN’s of any components or parts thereof if they are different from the ECCN of the Goods at issue.

4. Each Party represents that the Items and the parts and components thereof it is providing under this Agreement are not "defense articles," as that term is defined in 22 C.F.R. §120.6 of the ITAR, and that the services it is providing under this Agreement are not "defense services," as that term is defined in 22 C.F.R. §120.9 of the ITAR. The Parties acknowledge that this representation means that an official capable of binding the Party providing such Items knows or has otherwise determined that such Items, and the parts and components thereof, are not on the ITAR Munitions List at 22 C.F.R. §121.1. Each Party agrees to reasonably cooperate with the other in providing, upon request of the other Party, documentation or other information that supports or confirms this representation.

5. Customer shall not, without the prior express written consent of Seller, use the Goods in any way involving military end-customers other than the U.S. government. This restriction shall apply to any use, sale, proposal, or offer to sell or provide parts to any military end-customers other than the U.S. government anywhere, and shall include any national Army, Navy, Air Force, or other agency of national defense, as well as defense contractors where Customer knows or has reason to know that the part is likely to be used by, delivered to, or benefit a defense agency anywhere.

6. Customer represents and warrants that it is not designated on or associated with any party designated on any of the U.S. government restricted parties lists, including, without limitation, the U.S. Commerce Department Bureau of Industry and Security ("BIS") Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control ("OFAC") Specially Designated National and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls ("DDTC") Debarred Parties List. Customer shall comply with all applicable U.S. economic sanctions and export control laws and regulations, including without limitation, the regulations administered by OFAC, the Export Administration Regulations administered by BIS, and the International Traffic in Arms Regulations administered by DDTC. The Customer agrees it will not offer the Goods for resale in any country or to any person or entity if the Buyer knows, or has reason to believe, that the sale to such person or entity is a violation of the obligations of this subparagraph 6 or that such person or entity intends to resell or convey the Goods to a person or entity in violation of the terms of this subparagraph 6.

7. It is specifically agreed that Customer shall be the foreign principal party in interest and/or that its freight forwarder shall act as Customer's agent in such capacity for purposes of the Foreign Trade Regulations or other regulatory purposes, and Customer and its freight forwarder are responsible for all routed export transactions documentation, including but not limited to the filing of the required Electronic Export Information/Automated Export System records. At Seller's request, Customer or its freight forwarder shall provide copies of any export, shipping or import documentation prepared by Customer or its freight forwarder related to sales to Customer by Seller, including end user certificates.