1. Applicability. The sale of goods (“Goods”) by LuxWall, Inc. (“LuxWall”) to the purchaser of such Goods (“Buyer”) is expressly limited to Buyer’s acceptance of LuxWall’s quotation and the terms and conditions contained herein (this “Agreement”). No modification or waiver of any of the terms and conditions of this Agreement and no additional or different terms or conditions shall be effective unless agreed to in a writing signed by both parties.   All section references in this Agreement are to the sections hereof, and all references to the “Purchase Order” are to the order placed by Buyer to LuxWall for the purchase and sale of Goods.

2. Acceptance of Purchase Order. A Purchase Order shall not be binding on LuxWall unless and until LuxWall provides Buyer with electronic acceptance of the Purchase Order through an order acknowledgment or sales confirmation (such acknowledgment or confirmation being a “Sales Confirmation”). Notwithstanding any such Confirmation, no general, additional, or conflicting terms and conditions referred to in Buyer’s Purchase Order or other document issued by Buyer shall apply to this Agreement and the sale of Goods.

3. Pricing and Taxes. All prices for the Goods shall be from LuxWall’s quotation and set forth on the face of the Purchase Order.   The pricing is exclusive of any federal, state, provincial, local taxes or assessments including, without limitation, sales, use, value-added or similar taxes.  Such taxes and assessments will be separately stated on LuxWall’s invoice and be the responsibility of Buyer.

4. Payment Terms. The full amount stated in each invoice shall be due and payable Net 30 days from the date of the invoice.  LuxWall reserves the right, in its sole discretion, to require a deposit, alter or suspend credit terms, require C.O.D. or advance payment. LuxWall may assess a late payment fee on any amount not paid by the due date, at the rate of 1.5% compounded monthly, calculated from the date on which such payment was due until the date such payment is received. All costs and expenses incurred by LuxWall as a result of non-payment or delinquent payment by Buyer, including collection costs, interest and reasonable attorney fees, shall be paid by Buyer.

5. Invoicing. Invoices will be issued when LuxWall provides Buyer with notice that the Goods are ready for shipment.

6. Delivery Terms. Unless otherwise agreed by LuxWall and stated on the face of the Purchase Order, all sales are FOB Shipping Point (Incoterms). LuxWall will use reasonable efforts to meet the delivery date stated in the Purchase Order. LuxWall will use reasonable efforts to comply with Buyer’s shipping and insurance requests but reserves the right, at Buyer’s risk and cost, to ship all or part of the Goods using carriers of LuxWall’s selection if Buyer has not provided adequate shipping and/or insurance requests when the Goods are ready for shipment. All loading, delivery, insurance, forwarding, and transportation of the Goods are at Buyer’s cost and risk.

7. Buyer’s Acceptance of Goods. Buyer shall inspect the Goods when received and shall notify LuxWall in writing of any defects or deficiencies within seven (7) days of receipt. In the absence of such notice, the Goods shall be deemed to have been accepted by Buyer. Acceptance by Buyer shall also be deemed to have been made as soon as the Buyer uses the Goods for its own commercial production or resale. In the event a Good is returned to LuxWall, all handling, restocking, and transportation charges paid by LuxWall will be deducted from any credit given Buyer. Freight charges on returned Goods must be prepaid by Buyer.

8. Cancelation/Termination/Change of Order: No cancellation, termination or change to a Purchase Order shall be effective unless agreed to by LuxWall in writing. Unless otherwise agreed to by LuxWall in writing, in the event of a cancellation, termination or change of a Purchase Order, Buyer shall pay LuxWall for any expenses and costs incurred in the production of the Goods to the date such termination is accepted by LuxWall, plus liquidated damages equal to 20% of the total purchase price for the Goods covered by the cancelled Purchase Order.

9. Force Majeure. LuxWall shall be excused from and under no circumstances shall be liable for any loss or delays in performance due to act of God, fire, floods, windstorms, explosions, civil unrest, natural disasters, labor problems (including strikes, lockouts or slowdowns), governmental laws, rules or regulations, inability to obtain power, material, labor, equipment or transportation, pandemics or epidemics, or causes of a like or different nature reasonably beyond LuxWall’s control in the conduct of its business. If such delays extend the shipment date for more than 120 days, LuxWall or Buyer may cancel the affected Purchase Order, without liability. All payments received by LuxWall from Buyer applicable to such cancelled Purchase Order will be refunded.

10. Warranty. LuxWall’s Standard Limited Warranty (the “Warranty”), a copy of which is attached hereto or has been separately provided to Buyer, is incorporated herein by reference and shall apply to all purchases of Goods.  In the event of defective or non-conforming Goods (as defined in the Warranty), LuxWall will repair or replace the defective or non-conforming Goods in accordance with the Warranty.  LuxWall’s obligation to repair or replace such defective or non-conforming Goods is Buyer’s sole and exclusive remedy for any breach of the Warranty.

11. Limitation of Liability. TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WHATSOEVER SHALL LUXWALL BE LIABLE TO BUYER FOR INDIRECT DAMAGES, LOST PROFITS, LOST PRODUCTION, LOST REVENUE, BUSINESS INTERRUPTION, OR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PURCHASE ORDER FOR GOODS ISSUED BY BUYER TO LUXWALL, WHETHER IN CONTRACT OR IN TORT (INCLUDING FOR BREACH OF CONTRACT, LATE DELIVERY, BREACH OF WARRANTY (EVEN IF THE WARRANTY FAILS OF ITS ESSENTIAL PURPOSE), RECALL, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY)  OR OTHERWISE.  LUXWALL’S MAXIMUM AGGREGATE LIABILITY FOR ALL CLAIMS WHICH THE BUYER HAS OR MAY HAVE AGAINST LUXWALL OR LUXWALL DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR REPRESENTATIVES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY PURCHASE ORDER FOR GOODS ISSUED BY BUYER TO LUXWALL, WHETHER THESE CLAIMS ARISE IN CONTRACT, TORT, NEGLIGENCE, OR UNDER ANY OTHER THEORY OF LIABILITY, WILL BE LIMITED, TO THE AMOUNT OF THE BUYER HAS ACTUALLY PAID TO LUXWALL UNDER THE PURCHASE ORDER FOR TO WHICH THE CLAIM RELATES.

12. Governing Law: The terms and conditions of this agreement shall be governed, construed, interpreted, and enforced in accordance with the domestic laws of the State of Michigan, without giving effect to any choice of law or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than the State of Michigan.

13. Arbitration: Any controversy or claim arising out of or relating to the sale of the Goods shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Buyer irrevocably consents to the jurisdiction of the courts in Wayne, County Michigan for purposes of entering the arbitration award. The arbitration shall be conducted by a single arbitrator.  The seat of the arbitration shall be Detroit, Michigan, and all hearings shall be conducted in Detroit, Michigan.

14. Assignment: Any assignment of this contract by the Buyer, in whole or in part, without LuxWall’s prior written consent, is void. Notwithstanding the above, Buyer will not sell or otherwise provide the Goods to any third party, including a potential end user of the Goods, unless and until such third party or end user has agreed to the confidentiality and limited use obligations contained in Section 15 of this Agreement.

15. Confidentiality. Buyer acknowledges that the Goods and material supplied or made available in connection therewith may contain or reflect LuxWall’s proprietary and confidential information, including information related to LuxWall’s proprietary and confidential design and manufacturing methods and information related to the installation of LuxWall products, such as THERM computer program models, files, or analysis. Any and all information or material concerning the Goods or the transaction between LuxWall and Buyer, which LuxWall discloses to Buyer, or which Buyer otherwise obtains knowledge of in connection with such transaction, including information related to LuxWall’s proprietary and confidential design and manufacturing methods and information related to the installation of LuxWall products (“Confidential Information”) shall remain the sole and exclusive property of LuxWall and shall not be disclosed by Buyer to any third parties or used for any purpose other than to install the Goods for an end customer, without LuxWall’s prior written consent.  Buyer shall have no right whatsoever to such Confidential Information other than as expressly permitted herein.  Without limiting the foregoing, Buyer agrees not to analyze, reverse engineer, or permit third parties to analyze or reverse engineer any Goods or Confidential Information in any way (“Reverse Engineering”), including to attempt to determine the bulk material structure and/or material composition of any Goods; provided, however, that if enforcement of the foregoing prohibition on Reverse Engineering is prohibited by applicable law, Buyer may engage in Reverse Engineering solely as necessary to obtain information permitted by such prohibition, but only if: (a) Reverse Engineering is strictly necessary to obtain such information, and (b) Recipient first requested such information from LuxWall, and LuxWall failed to make such information available under reasonable terms.

               
               LW00012.2-1