BlueSens Corporation

1. GENERAL.

The sale by BlueSens [] (“Seller”) of the goods set forth on the face hereof (the “Product”) and the provision of services related thereto (the “Services”) are subject to the terms set forth below (the “Contract”). These terms and conditions shall not be superseded by any other terms or conditions in the purchase order or other documents of the purchaser of the Product or Services set forth on the face hereof (“Buyer”). This Contract merges and supersedes all prior negotiations or agreements of the parties, either written or oral, made either prior to or contemporaneous with this Contract. This Contract cannot be modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the provisions of this Contract. This Contract, together with its attachments, constitutes the complete, exclusive and final agreement between Buyer and Seller. Any additional or different terms provided by Buyer in subsequent purchase orders or other documents shall not be binding. The rights and obligations under Sections 7 through 23 will survive the cancellation, termination or expiration of this Contract.

2. NON-BINDING OFFER OF PRODUCTS.

The offering of Products and/or Services via the Internet on Seller’s websites is made on a non-binding basis and does not constitute a binding offer to enter into an agreement with the Buyer. The descriptions of Products and/or Services made on Seller’s website are non-binding and do not form any kind of warranty.

3. DELIVERIES.

Buyer shall give Seller reasonable prior notice of the desired timing of deliveries. The quantity of any delivery is subject to Seller’s reasonable production capabilities. Seller shall only be obliged to meet agreed deadlines for deliveries if all specifications in connection with such deliveries are received from Buyer in a timely manner and if Buyer complies with all other agreed terms and conditions (including the respective payment obligations). In the event that Buyer fails to do so the delivery period shall be appropriately extended.

4. PRICE.

Seller may, by giving thirty (30) days’ prior written notice thereof to Buyer at any time during the Contract period, change the price of the Product and terms of delivery and shipment. Such changes shall be applicable to any Product shipped hereunder on and after the date the changes become effective, notwithstanding the fact that Buyer may have requested delivery of such Product pursuant to Section 3 above prior to Seller’s notice to Buyer of such changes. This provision shall not apply to fixed price contracts.

5. TERMS OF PAYMENT.

The price for the Product and/or Services is due upon delivery of the Product or provision of the Services respectively. If the payment by Buyer is not reveived within seven days after such due date, Buyer shall be deemed to be in default without requirement of any further notice by Seller. Any right of retention of Buyer shall be excluded.

6. TRANSPORTATION.

Unless otherwise expressly agreed in writing, all costs and risks of delivery are born by Buyer. Seller shall have the right to select the means of transportation. Buyer bears the risk of loss or deterioration of the Product during the shipment. Any expenses of the carrier selected by Seller shall be borne by Buyer and will be invoiced separately by Seller. If freight or other transportation costs are increased, Seller may add any such increase to the Contract price without prior notice thereof to Buyer. Buyer shall bear the risk of deterioration or loss of the Product during shipment. Buyer shall be responsible for asserting claims for losses or damages in transit directly against the carrier.

7. NOTICE OF CLAIMS.

All claims must be received by Seller in writing within thirty (30) days after Buyer’s receipt of the Product or the provision of Services. With respect to any defects incapable of discovery by Buyer (with the exercise of reasonable diligence) until in use or in processing in the manufacture of other products, all claims must be received by Seller in writing within fifteen (15) days after Buyer learns (or, with the exercise of reasonable diligence, could have learned) of the alleged defect. All claims must be received by Seller at the address specified on the front of this Contract. All claims not made in writing as specified above and received by Seller within the time periods specified above shall be deemed waived. Upon receipt of Buyer’s notification, Seller shall have the option of making inspection, analyses and tests of the Product at Buyer’s premises or of requiring Buyer to send the Product or adequate samples thereof, at Buyer’s expense, to Seller or to a person designated by Seller for inspection, analyses and tests. No Product or sample shall be returned to Seller without prior written authorization from Seller. No inspection or any other actions by third parties are authorized or will be paid for by Seller, without Seller’s prior consent in writing.

8. WARRANTIES; LIMITATION OF LIABILITY; REMEDIES; DAMAGES.

Seller warrants to Buyer that (a) the Product is of the quality set forth in the specification provided to Buyer, if any, or, as may be otherwise stated in writing in this Contract, and (b) the title conveyed is good and the Product is free from any security interest, lien or encumbrance (other than in favor of Seller for the unpaid balance of all amounts due Seller from Buyer with respect to the Product). Such warranties extend only to Buyer. EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING SENTENCE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCT SOLD HEREUDER IS NON-INFRINGING, IS OF MERCHANTABLE QUALITY, OR THAT THE PRODUCT SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE.
SELLER SHALL NOT BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, THIS CONTRACT OR ANY BREACH OF THIS CONTRACT INCLUDING, BUT NOT LIMITED TO, ANY LOSS OR DAMAGE RESULTING FROM THE USE OF THE PRODUCT IN BUYER’S MANUFACTURING PROCESSES OR IN COMBINATION WITH OTHER SUBSTANCES.
IF THE PRODUCT DOES NOT CONFORM TO THE WARRANTIES SET FORTH IN THIS SECTION, OR IF BUYER MAKES ANY OTHER CLAIM OF ANY SORT WHATSOEVER, INCLUDING THE CLAIMS SET FORTH ABOVE, AGAINST SELLER, BUYER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO REPLACEMENT OF THE PRODUCT, OR, AT SELLER’S OPTION, REPAYMENT OF THE PURCHASE PRICE PAID BY BUYER. Any Product supplied by Seller hereunder to replace Product shall be deemed supplied to Buyer subject to all of the terms and conditions of this Contract, including, without limitation, those concerning warranties, limitation of liability, remedies and damages, to the same extent as the Product. In the event Seller agrees to replace any Product or agrees to repay to Buyer the purchase price of any Product supplied by Seller to Buyer under this Contract pursuant to this portion of this Contract, Buyer agrees that it shall take reasonable steps, at Seller’s written request, to return to Seller (at Seller’s expense) the product for which replacement or repayment is sought.
SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR ADEQUACY OF INFORMATION FURNISHED TO BUYER CONCERNING THE PHYSICAL CHARACTERISTICS AND INGREDIENTS OF, AND PROTECTIVE MEASURES TO BE TAKEN REGARDING THE PRODUCT. SELLER SHALL NOT BE LIABLE FOR ANY ERROR OR OMISSION IN THE PREPARATION OF SUCH INFORMATION. SELLER SHALL NOT BE LIABLE TO BUYER, BUYER’S EMPLOYEES OR ANYONE IN CONNECTION WITH THE ACCURACY, ADEQUACY OR FURNISHING OF SUCH INFORMATION.

9. LIMITATION OF ACTIONS.

Any action for Seller’s breach of this Contract (including breach of warranties) must be commenced by Buyer within one year after the cause of action accrues, and no such action may be maintained which is not commenced within such period.

10. BUYER’S HANDLING OF PRODUCT.

Buyer assumes all risks and liability, and Seller assumes no risk and no liability, with respect to unloading and discharge of the Product (including failure of discharge or unloading implements or material used by Buyer, whether or not supplied by Seller), storage, handling, sales and use of the product, and the compliance or noncompliance with all federal and local laws and regulations with respect thereto.

11. INFRINGEMENT.

Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the Product in combination with other material or in the operation of any process.

12. INDEMNITY.

Buyer shall defend (including attorneys fees), indemnify and hold Seller harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage caused by Buyer’s negligence, strict liability, breach of warranty, breach of this Contract, fault, omissions and willful or wanton conduct arising, without limitation, from the handling, transportation, blending, modification, processing, storage and use of the Products or Services provided hereunder. Buyer shall defend (including attorneys fees), indemnify and hold Seller harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage of any of Buyer’s customers in connection with any advertising statement by Seller relating to Products or Services provided hereunder.

13. CREDIT.

Seller may recover for each shipment hereunder as a separate transaction, without reference to any other shipment. If Buyer fails to pay any invoice in accordance with the terms of this Contract or is past due in payment of any other amount owing to Seller, Seller may, at its option (and without liability and without prejudice to any other remedies) defer further shipments or provision of Services until all payments owing to Seller by Buyer have been made (in which event Seller may elect to extend the Contract period for a time equal to that for which shipments were so deferred), stop any Product in transit, and/or decline further performance of this Contract. If at any time in the judgment of Seller, the financial responsibility of Buyer is impaired, Seller may change the terms of payment and may require advance payment as a condition of shipment.

14. TAXES.

All payments under this Contract are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Buyer regardless of which party such taxes are imposed upon (with the exception of any taxes computed with regard to Seller’s income). In the event Buyer is required by law to withhold taxes, Buyer agrees to furnish Seller all required receipts and documentation substantiating such payment. If Seller is required by law to remit any tax or governmental charge on behalf of or for the account of Buyer, Buyer agrees to reimburse Seller within thirty (30) days after Seller notifies Buyer in writing of such remittance. Buyer agrees to provide Seller with valid tax exemption certificates in advance of any remittance otherwise required to be made by Seller on behalf of or for the account of Buyer, where such certificates are applicable.

15. TITLE.

The Product delivered hereunder remains Seller‘s property until fulfilment of all claims against Buyer to which Seller is entitled as a result of the business relationship. During the period of retention of title, Buyer shall not be allowed to assign the Products or use them as security, but may only sell them to its customers in the course of its ordinary business and under the condition that Buyer receives payment from its customer or makes transfer of title to the customer conditional upon fulfilment of the customer‘s payment obligations in full. If the Buyer sells the Product, title to all future claims against its customers in connection with such sale, together with all ancillary rights – including any receivables – are hereby assigned to Seller as security without the need for any separate declaration to this effect. The assignment applies including any payment balance demands. However, the assignment only applies up to the amount corresponding to the price of the Product invoiced by Seller. Priority shall be given to satisfying the part of the payment demand assigned to Seller. Until revoked, Buyer shall be authorized to collect the assigned receivables relating to the resale of the Product. Seller may revoke this authorization with good cause, in particular default of payment, suspension of payment, the initiation of insolvency proceedings, the protest of bills of exchange or substantiated indications of over-indebtedness or imminent insolvency of Buyer. Furthermore, after giving previous warning and on heeding a corresponding period of grace, Seller may disclose the assignment, utilize the assigned claims and demand that Buyer discloses the assignment to its customers. If a probable cause of interest is shown Buyer must provide Seller with the information and documents required for the assertion of Seller’s rights against Buyer’s customers.

16. FORCE MAJEURE.

Neither party shall be liable for its failure to perform hereunder if due to any event beyond the reasonable control of the party affected, including but not limited to acts of God, war, fire, bad weather, flood, accident, labor trouble or shortage, terrorism, civil disturbance, plant shutdown, equipment failure, voluntary or involuntary compliance with any applicable governmental regulation or order, or shortage or inability to obtain (on terms deemed reasonable by the party affected) any raw material (including energy), equipment or transportation, which materially impairs such party’s ability to so perform. Any quantities not delivered or accepted because of any such event shall be eliminated from the Contract without liability. Seller shall not be obligated to deliver the Product from other than the production or shipping points designated herein and shall not be obligated to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill this Contract. Seller shall also not be obligated to obtain any raw materials or Product from sources other than its usual sources. During any period when Seller is unable to supply the Contract quantity of the Product, whether caused by the circumstances above or otherwise, Seller may allocate any available Product, among its customers, including its own subsidiaries, divisions and departments, on such basis as Seller deems fair and reasonable, and its failure, partial or otherwise, to make deliveries to Buyer shall not be a breach of this Contract.

17. TERMINATION OF CONTRACT.

Should Seller for any reason elect to suspend manufacture of any Product which is the subject of this Contract, or curtail production or sale of the Product in consequence of the application of any governmental regulation or order which will, in the reasonable judgment of Seller, render the production, marketing or transportation of the Product economically, technically or commercially impracticable, Seller may terminate this Contract upon thirty (30) days prior written notice to Buyer.

18. ASSIGNMENT.

This Contract and the rights and obligations of Buyer hereunder shall not be assignable by Buyer, either by act of Buyer or by operation of law without the prior written consent of Seller, and shall not be deemed an asset of Buyer in, and at the option of Seller shall terminate in the event of, the commencement of any case or proceeding in respect of Buyer under any bankruptcy, insolvency or similar law or any assignment for the benefit of creditors. At the option of Seller, this Contract shall terminate in the event of the insolvency of Buyer. Any purported assignment of this Contract without the prior consent of Seller shall be null and void.

19. GOVERNING LAW AND FORUM SELECTION.

This Contract is made under and shall be governed by, construed in conformance with, and all disputes shall be governed by the internal laws (exclusive of the conflicts of law principles) of the State of Illinois. The United Nations Convention on Contracts for the International Sale of Goods (CIGS) shall not apply. All disputes, claims demands, liabilities and causes of action related to this Contract shall be exclusively resolved by arbitration which shall be commenced by filing a Notice of Arbitration under the then current Commercial Rules of the CPR International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitrations (“CPR Rules”). The entire dispute and all related disputes that the parties may have or possess shall be arbitrated in accordance with the CPR rules in effect, by a sole arbitrator. The arbitrator shall determine the rights and obligations of the parties according to applicable substantive laws and the express terms of this Contract. The arbitrator shall not be empowered to grant any damages in excess of those permitted or limited under the express terms of this Contract. The selection of the arbitrator shall be made by agreement of the parties. In the event the parties cannot agree upon the selection of an independent arbitrator, the arbitrator shall be appointed pursuant to CPR Rules. The party prevailing on substantially all of its claims in arbitration shall be entitled to recovers its costs, including reasonable attorney fees, on a full indemnity basis, for the arbitration proceeding, as well as any ancillary proceedings, to request interim measures, or to confirm or set aside an award. The arbitration shall be governed by the rules of CPR, and judgment upon the award rendered by the arbitrator may be entered by any court having competent jurisdiction. The place of the arbitrations shall be Chicago, Illinois. The parties may however, seek solely injunctive or equitable relief in a court of competent jurisdiction.

20. SEVERABILITY.

If any provision of this Contract shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Contract. The entire Contract shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of each party shall be construed and enforced accordingly.

21. BUYER’S BREACH OF CONTRACT.

If Buyer fails to perform any of the terms of this Contract, Seller may at its option defer shipments until the default is remedied and/or treat such default as a breach of the entire Contract.

22. NON-WAIVER.

Seller’s waiver of any breach or failure to enforce any of the terms or conditions of this Contract at any time shall not in any way affect, limit or waive its right thereafter to enforce strict compliance with every term and condition hereof.

23. OFAC LISTS.

None of Buyer or any of its officers, directors or employees is on any list of prohibited countries, individuals, organizations or entities that is administered or maintained by the U.S. Office of Foreign Assets Control (“OFAC”), including but not limited to the List of Specially Designated Nationals and Blocked Persons, or on any similar list not maintained by the OFAC. Buyer has and will maintain a process to ensure compliance with this Section 23

BlueSens Corporation, 1001 Mittel Drive, IL 60191 Wood Dale