1. TERMS OF ACCEPTANCE. DRT Holdings, LLC (“DRT”) and Buyer agree that acceptance is expressly limited to the terms and conditions contained herein and any further terms and conditions stated in the quotation attached hereto shall together with the specifications of the Equipment and/or Parts (the “Products”) sold hereunder constitute the complete agreement between DRT and Buyer and shall supersede and cancel all prior understandings, transactions and communications, whether oral or written, with respect to the matters referred to herein and shall form the complete contract between DRT and Buyer, and shall be binding upon and accrue to the benefit of the successors and assigns of the parties hereto. Any provisions printed or otherwise contained in any document that are contrary, different or additional to these terms and conditions, or any alteration in these terms and conditions, shall have no force or effect, and Buyer hereby agrees that any such provisions or alterations shall not constitute any part of this contract unless expressly agreed to in a writing signed by an authorized officer of DRT. If Buyer has previously made DRT an offer with respect to the Products, DRT’s acknowledgment or confirmation shall not operate as an acceptance of Buyer’s offer, but rather shall be deemed to be a counteroffer. The term “Products” shall include all quoted goods, whether manufactured by DRT or others, and shall include such computer hardware, firmware, software, and related documentation (collectively termed “Software Materials”) as may be set forth in the preceding quotation.
   
   
2. VALIDITY. This proposal and its terms automatically terminate if not accepted by Buyer within thirty (30) calendar days from date of issue of this proposal.
   
   
3. PRICING, RISKS AND TRANSPORTATION. The Products shall be shipped F.O.B. DRT’s plant. Prices quoted do not include any additional costs, including, but not limited to, carriage and delivery costs, insurance, taxes, license fees, installation and other related charges, which are the sole responsibility and expense of Buyer. Insurance provided by Buyer shall also cover the tools and other objects of DRT’s assembly or service personnel where applicable. In the event that DRT expressly assumes any costs associated with the delivery, shipment, or installation of the Products in the quotation or order, the burden of any subsequent increase in these costs shall be borne by Buyer. Regardless of whether DRT assumes any of the aforementioned costs, all risk of damage, loss or theft shall be borne by Buyer. DRT reserves the rights to increase the price of the Products stated in its quotation or order to reflect any subsequent increase in the cost of materials or labor in the manufacture, delivery, or installation of the Products.
   
   
4. DEFERMENT AND CANCELLATION. DRT’s current written policy in effect on deferment and cancellation is incorporated by reference into, and constitutes an integral part of, this Agreement (the “Deferment and Cancellation Policy”). Buyer acknowledges that it has been provided with the opportunity to review the Deferment and Cancellation Policy. Any deferment from the scheduled shipping date will be subject to a charge of three percent (3%) per month of the unpaid amount of the invoice price to cover the inventory carrying cost (“Deferment Charges”). Any deferment of more than ninety (90) days, or a second deferment, will be treated as a cancellation. All cancellations are subject to charges as determined by DRT. Cancellation charges will include, but are not limited to, engineering charges, all material purchases, and all factory labor expended on the subject order (“Cancellation Charges”). On receipt of such cancellation notice, all work on the order or part thereof canceled will be stopped as promptly as is reasonably possible. Buyer will then be invoiced for and pay to DRT the applicable Cancellation Charges. Deferment and Cancellation Charges will be charged against the down payment and any progress payments. The balance remaining shall be invoiced to Buyer for payment. Failure to pay Deferment Charges will result in order cancellation and Cancellation Charges. Deferment and Cancellation Charges must be settled prior to acceptance of any new orders.
   
   
5. PAYMENT PROVISIONS. Payments shall be made as stipulated without any deductions, including, but not limited to, deductions for discounts, expenses or taxes of any kind, or for any alleged damages or claims arising under this Agreement or any other agreement unless expressly agreed to in writing by DRT. In the event that Buyer shall fail to pay any part of the purchase price when due, DRT may, at its option, defer further shipments or cancel the unshipped balance. DRT reserves the right, prior to making any shipments, to require from Buyer satisfactory security for performance of Buyer’s obligations. If, due to circumstances beyond DRT’s control, delivery, assembly, placement into operation or acceptance of the Products are delayed, the terms of payment shall remain unchanged as if the Products had been delivered and/or placed into operation at the originally prescribed date. Non-delivery of non-essential parts which do not prevent the use of the Products or repairs and/or replacements to be made under DRT’s warranty [if applicable] after the beginning of operations, do not affect or alter either the terms of payment or the period of warranty agreed upon. Interest shall be assessed at a rate equal to 1.5% per calendar month or the maximum interest rate that DRT can charge Buyer under applicable law, whichever is less, to any portion of payment not made in accordance with the terms of this Agreement. Payment of such interest does not relieve Buyer of its obligations under this Agreement. Unless and until the Products is fully paid for, Buyer hereby grants DRT a purchase money security interest in the Products to secure the unpaid balance of the price and all other obligations of Buyer to DRT however arising. Buyer grants DRT a power of attorney to execute and file on behalf of Buyer all necessary financing statements and other similar documents required to perfect the security interest granted herein.
   
   
6. DELIVERY. Any indicated date of delivery is only an approximate delivery date and will not be binding unless agreed to in writing by DRT. While DRT will attempt to meet any agreed delivery date, it shall not be liable for delays in manufacture or delivery due to any event beyond DRT’s or its subcontractors’ reasonable control, including, but not limited to, force majeure, war, fire, flood, acts of God, acts of third parties, acts of government authority or any agency or commission thereof, accident, breakdown of Products, differences with employees or similar or dissimilar causes beyond reasonable control, including but not limited to, those interfering with production, supply or transportation of product, raw material or components or DRT’s ability to obtain, on terms DRT deems reasonable, material, labor, Products or transportation. Delivery shall also be delayed if Buyer fails to timely perform its obligations under the Agreement or if Buyer fails to submit or later modifies information necessary for the manufacture of the Products. Delay in delivery does not entitle Buyer to cancel the Agreement or to claim damages directly or indirectly attributable to such delay without DRT’s written consent.
   
   
7. PATENT INFRINGEMENT INDEMNITY. The following sets forth DRT’s entire responsibility for potential patent infringements claims. DRT does not provide indemnification for any infringement of patent rights with reference to cans, shells, ends, or components thereof (“Products”), nor with respect to systems or portions thereof, which are designed by any third party, including Buyer. Any such systems or Products or the use thereof, shall be the sole responsibility of Buyer. With respect to Systems or Products of DRT design (“DRT Systems and Product”s), DRT will hold Buyer harmless from all charges of patent infringement directed to DRT Systems and Products, provided that: (a) Buyer immediately notifies DRT of any such charge of infringement and provides DRT with a copy thereof; (b) Buyer allows DRT to investigate the claim of infringement, to modify the Products or the design of the DRT Systems and Products so as to avoid the infringement, or to obtain a license at no expense to Buyer; and, (c) Buyer permits DRT to defend at its own expense any suit for infringement and/or to settle such suit; in the event of such a suit, Buyer will cooperate fully with DRT in any defense of such a suit. Regardless of the foregoing, DRT’s responsibility for damages is subject to the limitation on remedies and liabilities set forth in Section 14.
   
   
8. CONFIDENTIAL INFORMATION. Buyer agrees that ideas, specifications, drawings, designs or inventions conceived, originated or developed by DRT in the course of fulfilling its obligations under this Agreement are the confidential and proprietary property of DRT. Copyrights and other industrial property rights relating to such documents or matters referred to therein remain vested exclusively in DRT. Buyer shall take all reasonable precautions to prevent such material from being divulged to any third party without express written permission from DRT. Buyer also agrees not to file applications for patent on any systems, components or Products originating from DRT. Any violation of this provision by Buyer shall entitle DRT to cancel the Agreement immediately in addition to any other remedies DRT may be entitled under law or contract. Buyer further agrees that any violation or threat of violation of this provision will result in irreparable harm to DRT for which damages would not be an adequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, including, without limitation, the recovery of damages for breach of the Agreement, DRT shall be entitled to equitable relief, including both temporary and permanent injunction, to prevent any unauthorized use or disclosure, without posting bond or other security, and to such other and further equitable relief as the court may deem proper under the circumstances.
   
   
9. SITE PREPARATION. Buyer shall prepare and maintain the Products site in accordance with DRT’s specifications. This includes proper power, grounding, temperature and humidity control and other factors to ensure the proper environment for the Products. Failure to establish and maintain these standards may result in Product malfunction or inconsistency and will void any DRT warranty.
   
   
10. REGULATORY LAWS. Buyer shall draw DRT’s attention to legal provisions and other regulations that are applicable with respect to delivery, assembly, electrical and other connections, operation and prevention of accidents. DRT, however, makes no representations that the Products conform to federal, state or local laws, ordinances, regulations, codes or standards. It is Buyer’s responsibility to ensure that DRT’s Products comply with local electrical power company regulations and to obtain any permits necessary for the installation or operation of the Products. The Occupational Safety and Health Act (OSHA) of the United States of America imposes certain requirements on an employer including many relating to the use of machinery. The interpretation and applicability of the regulations issued pursuant to OSHA is directly related to the conditions and manner in which the Products are used. DRT believes that the Products can be used in a manner which complies with OSHA and its regulation, but cannot and does not so warrant, and makes no warranty of any kind other than the warranty set forth in Section 13.
    
    
11. PRODUCT TESTING AND ACCEPTANCE OF PRODUCTS. The Systems shall be tested by DRT before shipping. Additional testing will be performed only if expressly agreed to by DRT in writing. The cost for any additional testing will be borne by Buyer. If the additional testing cannot be completed within the period specified for reasons beyond DRT’s control, it is understood that the qualities to be tested are deemed to be met. Buyer hereby waives any right of rejection or revocation of acceptance or any claim or defense based on the quality of the Products unless Buyer examines the Products upon receipt of shipment, and within ten (10) days thereof notifies DRT of the specific nature of any claimed defect by telegram, registered mail or telecopy at the addresses provided in the quotation or offer. Buyer’s sole and exclusive remedy in cases of delivery of defective products is governed by the warranty provision of this Agreement.
    
    
12. SOFTWARE LICENSE. DRT grants Buyer a non-exclusive and non-transferable license to use all software, documentation and related materials owned or licensed by DRT that is used in the Products covered by these terms and conditions (collectively the “software”) until (a) Buyer discontinues use of the software; (b) Buyer violates any of the terms and conditions of this Agreement; or (c) this Agreement is canceled pursuant to Section 15. Installation, training, conversion, customization, consulting, maintenance and support or other software services shall be as the parties agree. Buyer may not modify customize or enhance the software. The software is a valuable asset and trade secret of DRT and is DRT’s sole property. Buyer must take all reasonable steps to protect DRT’s proprietary interest in the software. Buyer may not transfer or otherwise provide software to any third party. Upon request, Buyer will execute such third party provider licenses as are required. DRT may enforce its rights hereunder by injunctive or other equitable relief, in addition to any other legal remedies it may have. Buyer may not create, attempt to create, or permit or help anyone to create source code for the software or decompile, reverse assemble, analyze or otherwise examine the software for reverse engineering. Buyer may not make any copies of the software unless agreed to in writing by DRT.
    
    
13. LIMITED WARRANTY. DRT’s limited warranty on the Products is incorporated by reference into and constitutes an integral part of this Agreement (the “Limited Warranty”). Buyer acknowledges that it has been provided with the opportunity to review the Limited Warranty. THE LIMITED WARRANTY IS IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
    
    
14. LIMITATIONS ON REMEDIES AND LIABILITIES. Buyer agrees that DRT’s liability and Buyer’s sole and exclusive remedy pursuant to any claim of any kind, including, but not limited to, a claim in contract, negligence or strict liability, against DRT or any of DRT’s affiliates, shall be the repair or replacement, at DRT’s option, of the defective Products or parts thereof or the correction of Software Materials. Claims include all claims of any kind, including, but are not limited to, those for any loss or damage arising out of, connected with, or resulting from this Agreement from the performance or breach of the terms and conditions hereof, or from the design, manufacture, sale, delivery, resale, installation, technical direction of installation, inspection repair, operation or use of the Products or part thereof, of Software Materials covered by this Agreement. In no event will DRT be liable for any amount related to the Product in excess of the amount actually paid by Buyer for such Product. NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, DRT WILL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE OR BUSINESS) OR ATTORNEYS’ FEES RESULTING FROM, OR IN ANY WAY RELATED TO, DRT’S PRODUCTS AND WHETHER FOR INJURIES TO PERSON, PROPERTY OR OTHERWISE.
    
    
15. DEFAULT. If Buyer defaults in performing any of its obligations to DRT under this Agreement or any other agreement, or if Buyer shall be insolvent or cease doing business or be the subject of any proceedings under any bankruptcy, insolvency, reorganization or arrangement statute or law, or, without DRT’s written consent, Buyer sells, transfers, leases, pledges or permits any lien on or attachment of the Products or any part thereof, such acts, at the option of DRT, shall be deemed a default under this Agreement. DRT may, at its option and without incurring any liability thereby, elect to cancel this Agreement and/or any or all other agreements with Buyer and pursue all available legal and equitable remedies, including, but not limited to, the right to accelerate any unpaid balance under this Agreement or any other agreement with Buyer, and any right to repossess the Products.
    
    
16. GOVERNING LAW; DISPUTE RESOLUTION; ARBITRATION. This Agreement shall be construed and governed by the laws of the state of Ohio, without regard to conflict of laws principles. Prior to seeking arbitration, the parties agree to meet with each other at a senior level to attempt to resolve differences. Any controversy arising out of this Agreement shall be submitted to arbitration and conducted in accordance with the then-current Commercial Arbitration Rules of the American Arbitration Association, the Federal Rules of Civil Procedure and the Federal Rules of Evidence, by which each party will be bound. The arbitration proceeding itself, however, shall be conducted by the arbitrator(s) as selected below and not by the American Arbitration Association. Any arbitration proceeding will be conducted in Dayton, Ohio. If the parties have not agreed during their negotiations on a single arbitrator to whom the controversy will be submitted, either party may select an arbitrator and send written notice to the other party of the selection. The party receiving such notice will have 30 days from the date of receiving such notice to select an arbitrator and notify the party who selected the first arbitrator. Failure to select the second arbitrator and to send timely notice, as provided above, empowers the arbitrator first selected to resolve the controversy. If both arbitrators have been named, they will as soon as is reasonably practicable (but within 30 days from the date the latter of the two arbitrators was named) name a third arbitrator. The parties agree to be bound by the decision of the arbitrator (s) and the decision thereof to be entered into any appropriate court or other jurisdiction. Unless otherwise provided in this Agreement, the prevailing party in the arbitration shall be promptly reimbursed for its reasonable costs and fees (including attorneys’ fees) incurred in connection with the arbitration and shall not be responsible for the costs of arbitration.
    
    
17. MISCELLANEOUS. No provision in this Agreement shall be waived, changed, terminated, or rescinded, except by a writing signed by the party to be charged by any such waiver, change, termination or rescission. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any similar or dissimilar provision of any prior or subsequent breach or shall constitute an amendment or modification of this Agreement. If any provision of this Agreement shall be held to be unenforceable or inapplicable, such holding shall not affect the enforceability of any other provision of this Agreement. No contract to purchase or license products from DRT may be assigned by Buyer without the prior written consent of DRT. Any purported assignment is void ab initio. The provisions of this Agreement otherwise shall bind and inure to the benefit of the parties hereto and their respective successors and assigns.

Warranty

DRT Holdings LLC, (“DRT”) provides a one (1) year limited warranty from the date of shipment that the Product will be reasonably free of defects due to material or workmanship. Unless otherwise noted below, the warranty applies to all equipment manufactured by DRT or for DRT to its design specifications. This Limited Warranty only applies to DRT’s Products which are used, stored, handled, fabricated and installed in the manner recommended by DRT. DRT’s sole obligation under this warranty is limited to the repair or replacement of defective parts at DRT’s plant of manufacture, contingent upon the following conditions:

(i) DRT receives notice of the defect, including a detailed description of the defect, within fifteen (15) calendar days of its discovery by Buyer;

(ii) Buyer establishes that the equipment has been properly installed, maintained and operated within the limits of normal usage as specified by DRT; and

(iii) Buyer ships, at Buyer’s expense, the defective equipment or part thereof, if necessary, to DRT’s plant which manufactured the equipment.

This warranty excludes all wearing components that are subject to ordinary wear and tear in accordance with the operation of the Product.

Any Software Materials supplied by DRT together with the Product which, under normal operating conditions in the Buyer’s facility, proves defective, as determined by DRT’s inspection, will be corrected by DRT within one (1) year after shipment. This warranty is contingent upon the following conditions:

(i) DRT receives from Buyer notice of the defect, including a detailed description of the problem or difficulty which has been experienced within fifteen (15) calendar days of its discovery by Buyer;

(ii) Buyer establishes that the problem involves a function for which the Software Materials were designed; and

(iii) no change or addition has been made in or to DRT’s Software materials and DRT’s Software has not been combined with any other software that has or could interfere with the Software.

The terms of this Limited Warranty do not in any way extend to any Product, or part thereof, which have an expectant life, under normal usage, inherently shorter than one (1) year. Any repair or replacement shall not extend the original warranty period in any manner or start a new warranty period.

Performance and production capabilities, when stated in the quotation for the Product or any part thereof, or Software Materials, are merely DRT’s best estimates based upon its understanding of the tooling usage, materials processed, accessories and other factors not all within DRT’s control, and therefore, DRT assumes no responsibility for failure to meet such estimates.

Disclaimer of Warranties

DRT’s Products must be stored, handled, installed, used and maintained in accordance with instructions provided by DRT, and this Limited Warranty is conditioned upon compliance with all such instructions. This Limited Warranty does not cover defects caused by:

(i) non-compliance with Company’s instructions or manuals related to the Product;

(ii) improper storage, installation, handling, use, or fabrication of the Product;

(iii) damage not resulting from manufacturing defects that occur while the Product is in Buyer’s possession;

(iv) unreasonable or unintended use of the Product; or

(v) products installed with known or visible manufacturing defects at the time of installation.

Any information or suggestion by Company with respect to the Products concerning applications, specifications or compliance with codes and standards is provided solely for your convenient reference and are made without any representation as to accuracy or suitability. You must verify and test the suitability of any information with respect to the Products for your specific application.

THE WARRANTIES SET FORTH HEREIN ARE THE ONLY WARRANTIES MADE BY DRT IN CONNECTION WITH THESE PRODUCTS. DRT CAN NOT AND DOES NOT MAKE ANY IMPLIED OR EXPRESS WARRANTIES WITH RESPECT TO THE PRODUCT, AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. PRODUCTS SOLD BY DRT ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY DRT IN WRITING.

DRT’S SOLE OBLIGATION UNDER THIS WARRANTY SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS, OR AT THE OPTION OF DRT, RETURN OF THE PRODUCT AND A REFUND OF THE PURCHASE PRICE. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF THE PRODUCTS PURCHASED, WHETHER USED SINGULARLY OR IN COMBINATION WITH ANY OTHER PRODUCTS OR SUBSTANCES.

Limitation of Liability

No claim by Buyer of any kind, including claims for indemnification, shall be greater in amount than the purchase price of the Products in respect to which damages are claimed. IN NO EVENT SHALL DRT BE LIABLE TO BUYER IN TORT, CONTRACT OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, RELIANCE, STATUTORY, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, LOSS OF REVENUES, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN, IN CONNECTION WITH, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF USE OF THE PRODUCTS SOLD HEREUNDER, OR FOR ANY LIABILITY OF BUYER TO ANY THIRD PARTY WITH RESPECT THERETO.