Terms and Conditions

8. INDEMNITY

The Buyer agrees to defend, indemnify and hold COMMEND harmless from all claims, demands, actions, damages, and liabilities (including reasonable attorney’s fees and consequential and incidental damages) arising out of any injury (including death) to any person or damage to any property in connection with the use of the Products in any way connected with any act or omission of the Buyer, its agents, employees, or subcontractors.

9. FORCE MAJEURE

COMMEND shall not be liable to the Buyer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.

When the event operating to excuse performance by COMMEND shall cease, this Agreement shall continue in full force until all deliveries have been completed.

10. CONFIDENTIALITY

The Buyer agrees that all drawings, prints and other technical material which COMMEND may provide to the Buyer, whether prepared by COMMEND or by third parties under Agreement to COMMEND, contain data which embody trade secrets and confidential know-how of commercial value to COMMEND or third parties under Agreement to COMMEND. The Buyer agrees (a) to keep such information confidential; (b) that it will not disclose such information to any other person, corporate division or entity; (c) will not use such information except in connection with the Products supplied hereunder; and (d) will not sell, lease, loan or permit any other person, corporate division or entity to use such information for any purpose, without COMMEND’s prior written consent. Nothing herein shall restrict the use of information generally available to the public.

11. EXPORT CONTROLS

This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the parties from time to time. Each party agrees that it will not export, directly or indirectly, any technical information acquired from the other party under this Agreement or any Products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable law.

12. ASSIGNMENT AND SECURITY INTEREST

As security for the timely payment and performance of all Buyer’s obligations to COMMEND, the Buyer hereby agrees that it will transfer and assign all rights, title and interest it has against the insurance of any carrier selected by the Buyer for the delivery of the Products, in the event the Products are damaged in whole or in part during transit. As further security for the timely payment and performance of all Buyer’s indebtedness to COMMEND, the Buyer hereby grants to COMMEND a first -priority security interest in the Products following delivery thereof to the Buyer (“Collateral”). Such Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to COMMEND by the Buyer.

If so requested by COMMEND, the Buyer shall deliver to COMMEND, in form and substance satisfactory to COMMEND, and duly executed as required by COMMEND, financing statements and other security interest perfection documentation in form and substance satisfactory to COMMEND, duly filed under the UCC in all jurisdictions as may be necessary, or in COMMEND’s opinion, desirable, to perfect COMMEND’s security interest and lien in the Collateral, in order to establish, perfect, preserve and protect COMMEND’s security interest as a legal, valid and enforceable security interest and lien, and all property or documents of title, in cases in which possession is required for the perfection of COMMEND’s security interest.

13. GOVERNING LAW AND DISPUTE RESOLUTION

This Agreement shall be governed by and construed in accordance with the laws of the State of New Jersey, without giving effect to principles of conflict of laws thereof or the UN Convention on Agreements for the International Sale of Products of 1980.

Any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The award shall be final and binding. Judgment upon the award rendered by the arbitrator or the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be held in New York, New York, shall be conducted in the English language, and shall be conducted (i) if the amount in dispute is less than $250,000, before a single arbitrator mutually agreeable to COMMEND and the Buyer, or if no agreement can be reached, then selected by the AAA, or (ii) of the amount in dispute is $250,000 or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. In addition, the losing party shall reimburse the prevailing party for reasonable attorneys’ fees and disbursements, the costs of the arbitration (including but not limited to the fees and expenses of the arbitrator and expert witnesses) and the costs incurred by the prevailing party in successfully seeking any preliminary equitable relief or judicially enforcing any arbitration award.

14. MISCELLANEOUS

If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.

In the event of a violation or threatened violation of COMMEND’s proprietary rights, COMMEND shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that COMMEND would suffer irreparable harm.

Each party will comply with all applicable laws, regulations, and ordinances, and the Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.

The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties. The Buyer shall not be entitled to assign the rights and obligations of the Buyer set forth in this Agreement without the prior written consent of COMMEND.

The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

This Agreement, including any Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns. It can only be amended in writing which (i) specifically refers to the provision of this Agreement to be amended and (ii) is signed by both parties.