BAM INNOVATIONS, LLC TERMS AND CONDITIONS 

FOR THE SALE OF GOODS AND SERVICES 

1.         Applicability.  These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") and services ("Services") by BAM Innovations, LLC ("Seller") to the buyer named in the quotation or proposal, confirmation of sale, or invoice that accompanies or references these Terms ("Buyer"). The quotation or proposal, confirmation of sale, and/or invoice ("Sales Confirmation") that accompanies or references these Terms and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the sale and purchase of the applicable Goods and Services. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. If the Sales Confirmation is considered to be an offer to sell, such offer expressly limits Buyer's acceptance to these Terms. Notwithstanding anything herein to the contrary, if a written contract signed by both Seller and Buyer is currently in effect covering the sale of the Goods and Services covered hereby, the terms and conditions of that contract shall govern the sale of the Goods and Services by Seller to Buyer.  

2.         Delivery of Goods and Performance of Services. 

(a)       The Goods will be delivered within a reasonable time after Seller's receipt of Buyer's purchase order, subject to availability of the Goods.

(b)       Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer by putting the Goods in the possession of the carrier at FOB point of origin (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods. Delivery shall occur during Seller's normal business hours. Unless otherwise agreed in writing by the parties, sales and delivery of Goods are F.O.B. Delivery Point for domestic shipments and FCA (Incoterms 2010) Delivery Point for international shipments. Seller shall not be liable for any delays, loss, or damage in transit.  

(c)       Seller may, in its discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order.

(d)       Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates shall be estimates only.

(e)       Seller may from time to time change the Services without the consent of Buyer provided that such changes do not materially affect the nature or scope of the Services or the fees or performance dates set forth in this Agreement.

(f)        With respect to the Services, Buyer shall (i) cooperate with Seller in all matters relating to the Services; (ii) respond promptly to any Seller requests to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with this Agreement; (iii) promptly provide such Buyer materials, files or information as Seller may reasonably request to carry out the Services in a timely manner; (iv) be responsible for all such Buyer materials, files, and information in any medium (and all content thereof) and all conversions thereof by Seller in connection with the performance of Services, and shall ensure that they are complete and accurate in all material respects and comply with all applicable laws, rules, and regulations. Buyer shall indemnify, defend and hold Seller harmless from and against any third-party claim that any such materials, files, or information infringes or misappropriates any intellectual property rights of any third party or violates any applicable law, rule or regulation.  

3.         Non-Delivery.  The quantity of any installment of Goods as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods unless Buyer gives written notice to Seller of the non-delivery within fifteen (15) days after the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in this Section 3 are Buyer's exclusive remedies for any non-delivery of Goods.

4.         Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.

5.         Buyer's Acts or Omissions. If Seller's performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable to Buyer.

6.         Inspection and Rejection of Nonconforming Goods. 

(a)       Buyer shall inspect the Goods upon their receipt. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods upon their receipt. Goods will be "Nonconforming Goods" only if the goods received are, without the approval of Buyer, not the goods that are identified in the Sales Confirmation or otherwise agreed upon by the parties, or do not conform with the limited warranty set forth in Section 9(a).  At Seller's request, Buyer will furnish Seller with written evidence or other documentation as to why the Goods are Nonconforming Goods.

(b)       If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its discretion, either (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods. The remedies set forth in this Section 6(b) are Buyer's exclusive remedies and Seller's entire liability for the delivery of Nonconforming Goods.

7.         Price.  Buyer shall purchase the Goods and Services from Seller at the prices (the "Prices") set forth in the Sales Confirmation. All Prices are exclusive of, and Buyer shall be responsible for, any sales, value-added, use, and excise taxes, any other similar taxes, and any duties, tariffs, and other charges imposed by any governmental authority on any amounts payable by Buyer.

8.         Payment Terms.  Buyer shall pay all invoiced amounts due to Seller within thirty (30) days after the date of Seller's invoice. Buyer shall make all payments by electronic funds transfer or check and in US dollars. If payment is not received by Seller when due, Seller may charge and Buyer shall pay interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the highest rate permissible under applicable law, from the date such payment was due until the date paid. Seller has no obligation to sell or supply any Goods or Services hereunder if Buyer is not current in all payments due Seller.

9.         Limited Warranty.

(a)       Seller warrants to Buyer that the Goods sold to Buyer shall, when delivered to Buyer, conform to the description on the face thereof and any applicable specifications that Seller provides in writing to Buyer and will be of Seller's standard quality. Buyer acknowledges and agrees that it has used its own independent skill and expertise in connection with the selection and use of the Goods purchased or provided and Buyer shall independently determine the suitability for each use for which the Goods are purchased or provided. The remedies set forth in Section 6(b))are Buyer's exclusive remedies and Seller's entire liability for any breach of the limited warranty set forth in this Section 9(a).

(b)       Seller warrants to Buyer that (i) Seller shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and (ii) if the description of Services in the Sales Confirmation contains any applicable performance requirements, those performance requirements will be substantially satisfied.

(c)       Seller shall not be liable for a breach of the warranties set forth in Section 9(a) and Section 9(b) unless:  (i) Buyer gives written notice of the defective Goods or Services, reasonably described, to Seller within 30 days after Buyer discovers or should have reasonably discovered the defect, but in any event, within 60 days after the applicable Goods were delivered or Services were performed; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in this Section 9(c) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods or Services are defective. If the Services include Seller providing, creating, converting, or modifying any digital files based on any materials, files or information furnished by Buyer, Buyer shall be deemed to have accepted the Services associated with Seller providing, creating, converting, or modifying such digital files when Buyer accepts, approves, or uses such digital file.

(d)       If there is a breach of the warranty set out in Section 9(b), Seller shall use commercially reasonable efforts to promptly cure, repair or re-perform the defective Services (or the defective part). The remedy set forth in this Section 9(d) is the Buyer's sole and exclusive remedy and BAM Innovations' entire liability for any breach of the limited warranty set forth in Section 9(b).

(e)       EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTION 9(a) AND SECTION 9(b), SELLER MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, WITH RESPECT TO THE GOODS OR SERVICES, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

(f)        Buyer is responsible for any inspections or certifications of any Goods, and the cost of any inspections or certifications of any Goods, except those inspections and certifications expressly set out in the specifications of the Goods that Seller provides in writing to Buyer.

10.      Limitation of Liability.  

(a)       IN NO EVENT WILL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR ANY LOSS OF USE, LOSS OR REVENUE OR PROFIT, LOSS OF DATA, OR DIMINUTION IN VALUE, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b)       IN NO EVENT WILL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AGGREGATE AMOUNT PAID TO SELLER FOR GOODS AND SERVICES SOLD HEREUNDER IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11.      Compliance with Law.  Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. The Goods, including any software, documentation, and any related technical data included with, or contained in the Goods, and any products utilizing such Goods, software, documentation or technical data (collectively, "Regulated Goods") may be subject to U.S. export control laws and regulations.  Buyer shall not, and shall not permit any third party to, directly or indirectly, export, re-export or release any Regulated Goods to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Regulated Goods is prohibited by applicable U.S. or foreign law, regulation, or rule.  Buyer shall comply with all applicable U.S. and foreign laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), before exporting, re-exporting or releasing any Regulated Goods. Seller may terminate this Agreement without liability if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.

12.      Termination.  In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

13.      Waiver.  No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14.      Confidential Information.  All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

15.      Intellectual Property.  Each party to this Agreement acknowledges and agrees that neither party will obtain any rights in or to the intellectual property rights of the other party, including, without limitation, patents, inventions (whether or not patentable), copyrights, trademarks, service marks, trade secrets, and know-how, by reason of entering into this Agreement or its performance under this Agreement.

16.      Force Majeure.  Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, epidemic, labor disputes, or restraints or delays affecting carriers, inability or delay in obtaining supplies of materials or goods, telecommunication breakdown, or power outage.  If the failure or delay continues for a continuous period of more than 90 days, either party shall be entitled to terminate this Agreement by written notice to the other party.

17.      Assignment.  Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

18.      Relationship of the Parties.  The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner.

19.      Governing Law.  All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement or any sale of goods under this Agreement.

20.      Submission to Jurisdiction.  Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States located in the Western District of Michigan or the courts of the State of Michigan located in the County of Kent, and each party submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

21.      Notices.  Other than routine business communications, all notices, claims, and demands hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

22.      Severability.  If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

23.      Survival.  Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including, but not limited to, Section 9 (Limited Warranty); Section 10 (Limitation of Liability), Section 14(Confidential Information); Section 15 (Intellectual Property); Section 19 (Governing Law); Section 20 (Submission to Jurisdiction); and Section 23 (Survival).

24.      Amendment and Modification.  This Agreement may be amended or modified only in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

25.      Successors and Assigns.  This Agreement is binding on and inures to the benefit of the parties to this Agreement and their successor and permitted assigns.