Legal Statement

Standard Terms and Conditions of Sale

1. GOVERNING TERMS AND CONDITIONS

(a) These Terms and Conditions of Sale (“Terms”) shall apply to the sale of all products and services (“Products”) by DKK America Materials, Inc. (“DKA”) to buyer (“Buyer”). These Terms, together with the respective quantities, delivery dates, and other commercial terms specified and accepted by DKA in a quote, Order or invoice, constitute the entire agreement (“Agreement”) between DKA and Buyer with respect to the Buyer’s Order of Products (“Orders”), and shall supersede all previous communications, warranties and representations, either written or oral, with respect thereto. ALL DOCUMENTS SUBMITTED BY OR TO DKA AND ANY CONTRACT FORMATION BETWEEN DKA AND BUYER ARE EXPRESSLY MADE CONDITTONAL ON BUYER’S ACCEPTANCE OF THESE TERMS WITHOUT MODIFICATION OR SUPPLEMENT. ANY ADDITTONAL OR DIFFERENT TERMS PROPOSED BY BUYER ARE REJECTED IN THEIR ENTIRETY AND SHALL BE DEEMED A MATERIAL ALTERATION OF THESE TERMS, NOTWITHSTANDING DKA’S ACCEPTANCE OF PAYMENT FOR, OR DKA’S DELIVERY OF, ANY PRODUCTS OR ANY OTHER SIMILAR ACT OF DKA. THESE TERMS MAY NOT BE AMENDED, SUPPLEMENTED, OR OTHERWISE MODIFIED, EXCEPT BY A WRITTEN INSTRUMENT SIGNED BY AN AUTHORIZED REPRESENTATIVE OF DKA STATING THAT IT IS MODIFYING THESE TERMS. IF, HOWEVER, DKA’S DOCUMENT OR ACTS SHALL BE DEEMED AN ACCEPTANCE OF A PRIOR OFFER BY BUYER, SUCH ACCEPTANCE IS LIMITED EXCLUSIVELY TO THESE TERMS AND TO THE PRICE, QUANTITY, DELIVERY AND OTHER COMMERCIAL TERMS SPECIFIC TO THE ORDER AS PROVIDED BY DKA. (b) All Orders placed by Buyer shall be subject to acceptance by DKA. DKA has no obligation to accept any Order. DKA reserves the right to allocate any production or inventory of Product in short supply as it may determine in its sole discretion. No Order may be cancelled or altered by Buyer except as explicitly agreed by DKA in writing, (c) A party’s failure to enforce any provision shall not operate as a waiver thereof unless such waiver is set forth in a writing signed by the party. (d) The sale-specific commercial terms of sale accepted in writing by DKA shall have priority over these Terms to the extent they cannot be reconciled.

2. PRICE AND PAYMENT

DKA reserves the right to establish and change Product prices and payment terms at any time without notice, provided changes will not apply to previously accepted Orders. Payment terms are net 30 days from date of invoice. Interest shall accrue on overdue invoices and all other amounts due DKA under an Agreement at the rate of the lesser of 1.5% percent per month or the highest rate permitted by law. DKA shall be entitled to recover from Buyer all costs of collection of overdue invoices, including but not limited to reasonable actual attorney’s fees. DKA may in its sole discretion, establish a credit limit for Buyer and to require payment in advance of or C.O.D. terms for any shipment, or to cancel any Order, for which Buyer’s financial condition or payment history does not justify in DKA’s opinion the extension of credit. All taxes, duties and any other fees or charges of any nature whatsoever imposed by any governmental authority on or measured by the transaction between DKA and Buyer (excluding federal, state or local income taxes of DKA) shall be paid by Buyer. If DKA is required to pay any such tax, duty fee, or charge, Buyer shall reimburse DKA for such amount on demand by DKA.

3. DELIVERY TERMS AND TRANSFER OF TITLE

Unless the Agreement provides otherwise, all prices and terms of delivery are: (i) EXW DKA’s facility (lncoterms 2010) for domestic shipments; and (ii) DDP named destination (lncoterms 2010) for international shipments. Title transfers upon full payment and Seller retains a security interest in the Product. All quoted delivery dates and/or periods are approximate. DKA reserves the right to make delivery in installments. A delay in delivery of any installment shall not relieve Buyer of its obligation to accept that delivery and remaining deliveries. Claims for shortages, errors in delivery, and Product non-conformities, must be specified in detail and sent in writing with supporting documentation to DKA within 10 calendar days after receipt of shipment. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer. DKA shall not be liable for any damage or loss resulting from delays due to a cause beyond DKA’s reasonable control, including but not limited to, an act of God, weather, (e.g., earthquake, tornado, fire, hurricane or flood), an act of Buyer, embargo or other governmental act, regulation or request, accident, emergency repair, strike, slowdown, war, riot, delay in transportation or inability to obtain necessary labor and/or materials. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost by reason of the delay.

4. LIMITED WARRANTY

(a) DKA warrants that Products produced by DKA will conform to DKA’s published or provided Product specifications and the Certificate of Analysis provided at delivery. If Buyer raises timely claims of a Product non-conformity, DKA and Buyer shall designate a mutually acceptable independent testing company (or designated by a court in the absence of agreement) in the United States to investigate and provide a written report. The testing company’s findings shall be conclusive and binding on the parties. The cost of the investigation and report shall be borne by DKA with respect to each Product found not to conform to the warranty and by Buyer with respect to each Product found to conform to the warranty). DKA’s exclusive liability, and Buyer’s exclusive remedy, for nonconforming Products is limited, at DKA’s option, to: (i) replacement of the non-conforming Products or (ii) refund of the purchase price of such Products. Products may not be returned without DKA’s written permission and transportation for return will not be paid by DKA unless authorized in advance. (b) Buyer acknowledges that DKA may also act as a distributor for Products that are produced by third parties other than DKA majority owned affiliates (“Resale Products”). Matters relating to the quality of the Resale Products are not within DKA’s control. Accordingly, Buyer shall have only the benefit of any warranty extended directly by the applicable producer of the Resale Products. DKA MAKES NO EXPRESS OR OTHER WARRANTIES WHATSOEVER CONCERNING RESALE PRODUCTS AND ALL LIMITATIONS AND DISCLAIMERS SHALL APPLY TO RESALE PRODUCTS. (c) Except for express warrantees set forth herein, all Products are sold “AS IS”. THE FOREGOING WARRANTIES (AND RELATED REMEDIES) ARE IN LIEU OF, AND DKA EXPRESSLY DISCLAIMS, ALL OTHER WARRANTIES, GUARANTEES, REPRESENTATIONS AND REMEDIES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. NO WARRANTY OR ASSUMPTION BY DKA OF ANY LIABILITY IN CONNECTION WITH THE SALE OF THE PRODUCT’S (OTHER THAN THOSE CONTAINED HEREIN) MAY BE MADE UNLESS IN WRITING AND SIGNED BY AN OFFICER OF DKA. THESE DISCLAIMERS AND LIMITATIONS APPLY WHETHER OR NOT THE BUYER MUST SUE TO ENFORCE ITS EXCUSIVE REMEDY AND SHALL NOT BE INVALID BECAUSE OF A FAILURE TO ACHIEVE AN ESSENTIAL PURPOSE.

5. PATENTS

For a period of two years from the invoice date of a Product, DKA shall defend and indemnity Buyer against any suit, claim or proceeding brought against Buyer that is based on a claim that such Product in its original condition at delivery constitutes a direct infringement of any United States patent issued as of the invoice date of the Product and covering the Product itself. Such obligation shall only apply if Buyer provides notice of the claim within such period. As Buyer’s exclusive remedy, DKA shall, at its option, and in its sole discretion, at DKA’s expense: (i) modify or replace the Product to eliminate the alleged infringement, or (ii) provide the right to use the infringing Product, or (iii) refund the purchase price; and/or terminate any obligations to continue to sell the Product. Notwithstanding the foregoing, DKA shall have no liability or responsibility for any claim resulting from (a) any item or product produced from a Product, (b) any combination of a Product with any other item, (c) any use or application of a Product, (d) any modification of a Product, or (e) any Product made in accordance with Buyer’s specifications or instructions. ALL LIMITATIONS OF LIABILITY AND DISCLAIMERS SHALL APPLY TO CLAIMS OF INFRINGMENT.

6. ACKNOWLEDGEMENT

Buyer acknowledges that the Products have not, and will not have been, tested by DKA for safety or efficacy in any particular application, unless otherwise stated in DKA’s written sale-specific materials furnished to Buyer by DKA directly. Buyer is solely responsible to test and evaluate the Products to determine, to Buyer’s satisfaction, whether a Product is suitable for Buyer’s intended uses and applications (which shall require evaluation of suitability as to technical, health, safety, environmental, and other requirements). Buyer assumes all responsibility for compliance with regulatory requirements related to the handling, storage, transportation, sale, use and/or disposal of the Products. Buyer acknowledges its obligations to request in writing from DKA and qualified third parties any applicable technical and material safety data. Buyer shall (i) familiarize itself with Product information supplied by DKA, including but not limited to any MSDS, (ii) follow safe handling, use, selling, storage, transportation and disposal practices and ensure that all employees, contractors, agents and customers of Buyer follow these practices, including such special practices as Buyer’s use of the Products may require, (iii) take appropriate actions to avoid spills or other dangers to persons, property or the environment, and (iv) comply with all applicable laws, rules and regulations, whether of the United States, any state thereof or any foreign country, concerning the transportation, storage, use, sale, export and disposal of the Products, including any export control laws. Buyer shall use its own independent skill and expertise in connection with the selection and use of the Products and warrants it possesses skill and expertise in the handling, storage, transportation, treatment, use and disposal of the Products. Except as covered by the express warranties herein, technical information provided by DKA in regards to Products (whether verbal, written or sample) are without warranty or representation. BUYER EXPRESSLY RELEASES, AND SHALL DEFEND AND INDEMNIFY, DKA FROM ALL LIABILITY, IN TORT, CONTRACT OR OTHERWISE, INCURRED IN CONNECTION WITH THE HANDLING, STORAGE, TRANSPORTATION, USE, SALE AND/OR DISPOSAL OF PRODUCT PURCHASED BY BUYER FROM DKA.

7. LIMITATION ON LIABILITY

IN NO EVENT WILL DKA BE LIABLE FOR INCIDENTAL, SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES FROM ANY CAUSE OR FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF WHETHER THE CLAIM ARISES FROM ACTUAL OR ALLEGED BREACH OF WARRANTY, INDEMNIFICATION, BREACH OF CONTRACT, NEGLIGENCE, PRODUCT LIABILITY, CONTRIBUTION OR ANY OTHER LEGAL THEORY. IN NO EVENT WILL DKA BE LIABLE FOR LOST REVENUE, PRODUCTION, INVENTORY OR PROFITS OR FOR ANY EXPENSES ARISING DIRECTLY OR INDIRECTLY FROM THE HANDLING, STORAGE, TRANSPORTATION, USE, SALE OR DISPOSAL OF THE PRODUCT, WHETHER OR NOT BASED ON AN AGREEMENT. IN NO EVENT SHALL DKA’S LIABILITY UNDER ANY THEORY OF LIABILITY EXCEED THE PURCHASE PRICE OF THE SPECIFIC PRODUCTS THAT ARE THE SUBJECT OF ANY CLAIMS MADE BY BUYER.

8. MISCELLANEOUS

An Agreement shall be governed by and interpreted in accordance with the laws of the State of Michigan, without giving effect to its conflicts of law provisions. THE RIGHTS AND OBLIGATIONS OF THE PARTIES SHALL NOT BE GOVERNED BY THE U.N. CONVENTION OF CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Any litigation or proceeding arising out of or relating to an Agreement, shall be brought exclusively in the courts of the State of Michigan, and each party knowingly, voluntarily and irrevocably consents the personal jurisdiction of such courts and waives any objection as to venue or an inconvenient forum. Each party waives the right to a trial by jury in connection with any such litigation or proceeding. No claim or cause of action, arising under an Agreement may be asserted by Buyer more than one year after the date on which such claim or cause of action arises. All claims of Buyer shall accrue on the date of delivery regardless of the date of the damage or event giving rise to the claim. If any provision hereof shall be illegal, invalid or unenforceable, it shall not affect the legality, validity or enforceability of any other provision and such illegal, invalid, or unenforceable provision shall be interpreted and modified by the parties (or by the court in the absence of an agreement) so as to eliminate such illegality, invalidity and/or unenforceability.