Brooks Automation General Terms and Conditions of Sale

Terms

1. The Brooks Automation (“Brooks”) General Terms and Conditions of Sale (“Terms”) govern all sales by Brooks to an OEM or end user (“Customer”) of products manufactured and/or offered for sale by Brooks, including Granville-Phillips® and CTI-Cryogenics® vacuum technology components or systems (collectively, “Products”); and/or related knowledge-based services, including maintenance, repair, exchange, and remote data analysis services, and proactive service programs (collectively, "Services"). All such sales are also subject to the published Brooks warranty and exchange terms in effect as of the date of sale.

2. The Terms may be not be waived or modified except by explicit and specific reference in a writing signed by an authorized Brooks corporate representative. Brooks expressly rejects and objects to all new, different or additional terms of sale Customer may submit. If any provision of the Terms is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

Orders

3. All orders are subject to acceptance by an authorized Brooks corporate representative. Brooks reserves the right to refuse or cancel any order affected by an error in the information published on the Brooks Website, including pricing errors. Upon acceptance, an order (including applicable warranty and exchange terms) will constitute the entire agreement between the parties with respect to the Products and Services ordered. Acceptance operates to supersede any prior agreements, proposals, quotations or understandings related thereto.

4. Customer may not assign an order without Brooks’ express prior written consent, and any attempted assignment in the absence of such consent shall be void.

Prices and Fees

5. Quoted Product prices and Service fees will be available for 30 days unless otherwise specified; except that quoted prices and fees are subject to increase in the event of an increase in Brooks's costs or other circumstances beyond Brooks' reasonable control.

Other Charges

6. In addition to Product prices and Service fees, Customer must pay any applicable charges for freight, insurance, taxes, duties, customs fees and other charges, including, but not limited to, sales, use, excise, privilege, value-added and similar taxes or charges imposed by any government authority; international shipping charges; forwarding agent's and broker's fees; consular fees; document fees; and import duties (collectively, “Other Charges”).

Credit

7. Customer agrees to submit such financial information from time-to-time as may be requested by Brooks for the establishment and/or continuation of credit terms.

8. Brooks may place orders on hold pending credit approval of Customer, and Brooks has sole discretion to decline credit approval or change the terms of Customer's approved credit. If approved for credit, Customer may pay by company check or credit card billed to a US address. Brooks may require payment by credit card billed to a US address. Brooks may require payment by credit card for orders of less than $100.

9. Where credit has not been approved, Brooks may suspend acceptance of an order pending advance payment by cashier’s check drawn on a US bank; bank wire transfer; or irrevocable, confirmed letter of credit drawn on a US bank and acceptable to Brooks in form, substance and timing.

Payment Terms

10. Brooks will invoice Customer for Products upon shipment, and will invoice recurring Service fees in advance on or about the first day of each calendar month. Monthly invoices will also include any one-time Service fees incurred in the preceding month. Exchange fees are billed separately.

11. Subject to more restrictive credit terms, invoices are payable in full in US dollars only, within 30 days of the invoice date. Customer must pay the entire amount of each Brooks invoice without offset or deduction.

12. Checks are accepted subject to collection, and the date of collection shall be deemed the date of payment. Brooks may apply any check received from Customer against any obligation owing from Customer to Brooks-- regardless of any statement appearing on, or referring to, such check-- without discharging Customer's liability for any additional amounts Customer owes Brooks. The acceptance by Brooks of such check will not constitute a waiver of Brooks' right to pursue the collection of any remaining balance.

13. Customer will be assessed a bad check charge of $50 if any Customer check is not honored for any reason, and subsequent orders will not be accepted until Customer makes an advance payment via bank wire transfer.

14. If Brooks believes in good faith that Customer's ability to make payments may be impaired, or if Customer fails to pay any invoice when due, Brooks may suspend delivery of Products or provision of Service until such payment is made, or cancel any order or any remaining balance thereof. Customer shall remain liable to pay for any Products already shipped, and for Service rendered.

Cancellation and Termination

15. Customer may cancel any order for Products subject to payment of a 10% cancellation charge in the event of cancellation prior to shipment; and a 25% restocking charge, plus any applicable Other Charges, in the event of cancellation after shipment. Postponement for more than one week constitutes cancellation.

16. Customer may terminate Service prior to the expiration of the applicable Service period, subject to payment of the aggregate monthly Service fees for the unexpired portion of the Service period, not to exceed 12 months.

17. No termination for default shall be effective unless and until Brooks shall have failed to correct such alleged default within thirty (30) days after receipt by Brooks of a written notice specifying such defaults. Notwithstanding anything elsewhere to the contrary, Brooks shall not be liable for any charges incurred by Customer in case of default or termination, without limitation, reprocurement and cover costs.

Product Delivery

18. Products sold under the Terms are shipped EXW Brooks US premises (Ex Works: Incoterms 2000). Subject to Brooks' right of stoppage in transit, delivery occurs at Brooks US premises, and Customer bears all costs, risks and responsibility involved in taking Product from Brooks US premises, loading Product, and clearing it for export if necessary. Unless specified by Customer, Brooks will select the carrier, delivery route, and method of packing and shipment.

19. Customer acknowledges that delivery dates provided by Brooks are estimates only, and that Brooks is not liable for failure to deliver on such dates. Brooks reserves the right to make deliveries in installments.

20. Delivery of a quantity that varies from the quantity specified will not relieve Customer of the obligation to accept delivery and pay for the Products delivered.

Governmental Authorization

21. All sales under the Terms will at all times be subject to US export control and foreign assets control laws and regulations, as amended. For shipments outside the US, Customer may be required to submit to Brooks in advance a completed US Commerce Department Statement by Ultimate Consignee and Purchaser (BXA-711) form, and/or a signed writing certifying that the Products will not be used for nuclear, biological or chemical warfare or missile end use.

22. Customer shall make no other disposition, except as expressly permitted under US law, of any Products purchased from Brooks, other than to the country of destination specified in the applicable order or Brooks invoice. Diversion contrary to US law or Export Administration Regulations is prohibited.

23. Customer will be responsible, at its own risk and expense, for obtaining any required authorization, such as an import license, foreign exchange permit or any other official governmental authorization, even though Brooks may apply for such authorization at Customer’s request. Customer is responsible for direct and timely customs clearance at the place of destination. Brooks will not be liable for any authorization that is delayed, denied, revoked, restricted or not renewed, and Customer will not be relieved of its obligation to pay Brooks pursuant to the applicable order.

Limited Warranty/Exclusive Remedies

24. Products are commercial grade, and are not intended for use in connection with any nuclear facility or activity where failure of a single component could cause substantial harm to persons and/or property, including, without limitation, use in aircraft, missiles, or space exploration.

25. Remanufactured Products are remanufactured to new system performance criteria, using the same test specifications, manufacturing processes and controls used in the production of new Products.

26. Brooks warrants that from the date of delivery to Customer, Products will be free from defect for the duration of the applicable warranty period(s) in effect as of the date of sale.

27. Brooks warrants that software manufactured by Brooks will execute according to programming instructions, but does not warrant error-free or uninterrupted operation of such software or associated Products.

28. The exclusive remedies for breach of warranty will be either repair or replacement of the nonconforming Product at the sole discretion and expense of Brooks, including the cost of shipping repaired or replaced Product. Customer must notify Brooks within 30 days of discovering a defect, and must issue a purchase order for the release of any exchange Product. Brooks will invoice an exchange fee against this purchase order if the nonconforming Product is not returned within the exchange return period.

Disclaimers

29. Brooks MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS OR SERVICES. UNLESS EXPRESSLY IDENTIFIED AS A WARRANTY, SPECIFICATIONS IN ANY PRODUCT DATASHEET CONSTITUTE PERFORMANCE GOALS ONLY, AND NOT WARRANTIES. Brooks MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, OR RESPECTING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

30. Brooks DISCLAIMS ANY WARRANTY WITH RESPECT TO PRODUCTS MODIFIED WITHOUT Brooks’ CONSENT, RENDERED DEFECTIVE BY CUSTOMER MISUSE, OR OTHERWISE COMPROMISED BY USE OF UNAUTHORIZED PARTS OR SERVICE, ALL AS DETERMINED BY Brooks IN ITS SOLE DISCRETION.

31. Customer acknowledges that the foregoing warranty disclaimers are reflected in Product prices and Service fees.

Repairs and Exchanges

32. Customer may order repair or exchange Product after the applicable warranty period has expired. Brooks will invoice Customer for the repair or exchange Product upon shipment. For exchange Products: Customer agrees to return the non-conforming Product to Brooks within 14 days of shipment from Brooks of the exchange Product. Brooks may separately invoice Customer for any non-conforming Cryopump or Compressor not returned to Brooks a $7.500.00 exchange fee and a $4,000.00 exchange fee for non-conforming Modules and Refrigerators not returned to Brooks unless Customer returns the non-conforming Product to Brooks within the applicable 14 day exchange return period.

Product Returns

33. In order to return a Product for repair, exchange or otherwise, Customer must obtain a Return Material Authorization ("RMA") number from Brooks and comply with Brooks shipping instructions. All returned Products must be shipped freight prepaid in original shipping cartons, complete with all packing materials, to the location specified by Brooks. The RMA number must be prominently marked on the outside of the shipping box.

34. A completed Health and Safety Certificate must be enclosed with all returned refrigerators, pumps and gauges (“High Vacuum Products”), and separately faxed to Brooks upon shipment. Customer acknowledges that Brooks will not accept any High Vacuum Product exposed to biological hazards, radioactive material, organic metal or mercury (“Unacceptable Hazards”). Customer shall indemnify, defend and hold Brooks harmless against, expenses and claims for personal injury, property damage and disposal and clean-up costs arising from returned High Vacuum Products containing Unacceptable Hazards or undeclared contaminants.

35. Brooks will return to Customer, freight collect: a) Products shipped without an RMA number; b) Products shipped to a Brooks location, or via a shipment method, other than as specified by Brooks; c) High Vacuum Products shipped without a complete Health and Safety Certificate, or exposed to Unacceptable Hazards; and d) nonconforming Products returned more than 60 days after shipment of the associated exchange Product.

Limitation of Liability

36. IN NO EVENT WILL CUSTOMER BE ENTITLED TO, NOR WILL Brooks BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING AT ANY TIME, FROM ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DOWN-TIME COSTS, DATA LOSS, DAMAGE TO ASSOCIATED EQUIPMENT, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, OR LOST PROFITS, EVEN IF Brooks HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THE LIMITED REMEDIES OF REPAIR OR REPLACEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

37. CUSTOMER'S RECOVERY FROM Brooks FOR ANY CLAIM SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO Brooks FOR THE PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM, IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.

38. Brooks WILL NOT BE LIABLE FOR, AND CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD Brooks HARMLESS AGAINST, ANY CLAIMS RELATING TO Brooks' COMPLIANCE WITH CUSTOMER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS; MODIFICATION OR REPAIR OF ANY PRODUCTS BY PARTIES OTHER THAN Brooks; AND ANY CLAIMS BY THIRD PARTIES RELATING TO THE PRODUCTS OR THEIR USE.

Intellectual Property

39. Transfer of title shall not operate to convey to Customer any right to make, or have made, any Product supplied by Brooks.

40. Customer is granted no right or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by any license agreement accompanying such software or other intellectual property.

41. Customer shall not copy software provided by Brooks; transfer it to a third party separately from the Products; modify, decompile, disassemble, reverse-engineer or otherwise attempt to derive the source code of the software; export the software or underlying technology in contravention of applicable US and international export laws and regulations; or use the software other than as authorized in connection with use of Products.

Force Majeure

42. Brooks will not be liable for failure to fulfill its obligations, or for delays in delivery, due to causes beyond its reasonable business control, including, but not limited to, natural disasters or other acts of God; acts or omissions of suppliers, other parties, or civil or military authorities; interruptions in communications or delays in transportation; and war or acts of terrorism. Brooks' time for performance will be extended for the period of such delay, or Brooks may, at its option, cancel any order or remaining part thereof without liability.

Disputes

43. All sales will be governed by, and any disputes arising thereunder will be resolved in accordance with, the laws of the Commonwealth of Massachusetts, to the exclusion of its choice of law rules. The United Nations Convention On Contracts For The International Sale Of Goods, 1980, will not apply.

44. If Customer fails to make payment when due, Brooks will be entitled to reimbursement for costs of collection and reasonable attorney’s fees, and for interest on the past-due amount, accrued from the due date at the rate of one and one-half percent (1½%) per month, or such lower rate as may be the maximum allowable by law.

45. Brooks may bring an action for nonpayment or other breach by Customer before any US or international judicial court of competent jurisdiction; or, at Brooks’ option, may submit the matter to arbitration as provided herein. Any other controversy or claim arising out of or relating to any sale of Products or Service will be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

46. The place of arbitration will be Boston, Massachusetts, USA. The arbitrators are not empowered to award punitive or exemplary damages, and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration.

August 28, 2003 Rev C

Brooks Polycold Systems Inc. General Terms and Conditions of Sale

Terms

The Brooks Polycold Systems Inc. ("Polycold") General Terms and Conditions of Sale ("Terms") govern all sales by Polycold to an OEM or end user ("Customer") of products manufactured and/or offered for sale by Polycold, including components or systems (collectively, "Products"); and/or related services, including maintenance, repair, warranty exchange, and service programs (collectively, "Services"). All such sales are also subject to the published Polycold Limited Warranty terms in effect as of the date of sale.

The Terms may not be waived or modified except by explicit and specific reference in a writing signed by an authorized Polycold corporate representative. Polycold expressly rejects and objects to all new, different or additional terms of sale Customer may submit. If any provision of these Terms herein are held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will not in any way be affected or impaired thereby.

All orders are subject to acceptance by an authorized Polycold corporate representative. Polycold reserves the right to refuse or cancel any order affected by any error or omission, including any information published in quotations, price lists, and on our Website. Upon acceptance, an order will constitute the entire agreement between the parties with respect to the Products and Services ordered and incorporate Polycold's General Terms and Conditions of Sale and Limited Warranty Terms as the sole terms of the Agreement. Acceptance by Customer operates to supersede any prior agreements, proposals, quotations or understandings related thereto.

Customer may not assign an order without Polycold's prior written consent, and any attempted assignment without such consent shall be void.

Quoted Product prices and Service fees will be applicable for 30 days from receipt of quotation unless otherwise specified; except that quoted prices and fees are subject to increase in the event of an increase in Polycold's costs or other circumstances beyond Polycold's reasonable control.

In addition to Product and Service prices, Customer must pay any applicable charges for freight, insurance, taxes, duties, customs fees and other charges, including, but not limited to, sales, use, excise, privilege, value-added and similar taxes or charges imposed by any government authority; international shipping charges; forwarding agent's and broker's fees; consular fees; document fees; and import duties (collectively, "Other Charges").

Customer agrees to submit such financial information from time-to-time as may be requested by Polycold for the establishment and/or continuation of credit terms.

Polycold may place orders on hold pending credit approval of Customer, and Polycold has sole discretion to decline credit approval or change the terms of Customer's approved credit. If approved for credit, Customer may pay by company check or credit card. All payments are to be made in U.S. dollars. Polycold may require payment by credit card for orders of less than $100.

Where credit has not been approved, Polycold may suspend acceptance of an order pending advance payment by cashier's check drawn on a US bank; bank wire transfer; or irrevocable confirmed letter of credit drawn on a US bank and acceptable to Polycold in form, substance and timing.

Export shipments must be prepay/wire transfer or irrevocable/confirmed letter of credit in a USA bank. There will be a $365 charge for each letter of credit. All shipments hereunder shall at all times be subject to the approval of the Seller.

Payment Terms

Polycold will invoice Customer for Products upon shipment. Subject to more restrictive credit terms, invoices are payable in full in US dollars only, within 30 days of the invoice date. Customer must pay the entire amount of each Polycold invoice without offset or deduction.

Checks are accepted subject to collection, and the date of collection shall be deemed the date of payment. Polycold may apply any check received from Customer against any obligation owing from Customer to Polycold-- regardless of any statement appearing on, or referring to, such check-- without discharging Customer's liability for any additional amounts Customer owes Polycold. The acceptance by Polycold of such check will not constitute a waiver of Polycold's right to pursue the collection of any remaining balance.

Customer will be assessed a bad check charge of $50 if any Customer check is not honored for any reason, and subsequent orders will not be accepted until Customer makes an advance payment via bank wire transfer.

If Polycold believes in good faith that Customer's ability to make payments may be impaired, or if Customer fails to pay any invoice when due, Polycold may suspend delivery of Products or provision of Service until such payment is made, or cancel any order or any remaining balance thereof. Customer shall remain liable to pay for any Products already shipped, and for Service rendered.

Customer cancellation of a purchase order prior to shipment shall not be effective until accepted by Polycold in writing. If accepted by Polycold, the cancelled Customer purchase order(s) is subject to payment of a cancellation charge (in no case shall the cancellation charge be in excess of the purchase order price). In the event of cancellation after shipment a restocking and cancellation charge, plus any applicable Other Charges, will be paid by the Customer. Postponement of an acknowledge delivery date for more than one week without approval constitutes cancellation.

No termination for default shall be effective unless and until Polycold shall have failed to correct such alleged default within thirty (30) days after receipt by Polycold of a written notice specifying such defaults. Notwithstanding anything elsewhere to the contrary, Polycold shall not be liable for any charges incurred by Customer in case of default or termination, without limitation, reprocurement and cover costs.

Product Delivery

Products sold under the Terms are shipped EXWorks Polycold's US premises (Incoterms 2000). Subject to Polycold's right of stoppage in transit, delivery occurs at Polycold's US premises, and Customer bears all costs, risks and responsibility involved in taking Product from Polycold's US premises, loading Product, and clearing it for export if necessary. Unless specified by Customer, Polycold will select the carrier, delivery route, and method of packing and shipment.

Customer acknowledges that delivery dates provided by Polycold are estimates only, and that Polycold is not liable for failure to deliver on such dates. Polycold reserves the right to make deliveries in installments. Delivery of a quantity that varies from the quantity specified will not relieve Customer of the obligation to accept delivery and pay for the Products delivered.

All sales under the Terms will at all times be subject to US export control and foreign assets control laws and regulations, as amended. For shipments outside the US, Customer may be required to submit to Polycold in advance a completed US Commerce Department Statement by Ultimate Consignee and Purchaser (BIS-711) form, and/or a signed writing certifying that the Products will not be used for nuclear, biological or chemical warfare or missile end use.

Customer shall make no other disposition, except as expressly permitted under US law, of any Products purchased from Polycold. Diversion contrary to US law and Export Administration Regulations is prohibited.

Customer will be responsible, at its own risk and expense, for obtaining any required authorization, such as an import license, foreign exchange permit or any other official governmental authorization, even though Polycold may apply for such authorization at Customer's request. Customer is responsible for direct and timely customs clearance at the place of destination. Polycold will not be liable for any authorization that is delayed, denied, revoked, restricted or not renewed, and Customer will not be relieved of its obligation to pay Polycold pursuant to the applicable order.

Limited Warranty/Exclusive Remedies

Products are commercial grade, and are not intended for use in connection with any nuclear facility or activity where failure of a single component could cause substantial harm to persons and/or property, including, without limitation, use in aircraft, missiles, or space exploration. Except as provided for elsewhere herein, Products are intended for use on Large Stationary Equipment only, other end-use by customer may void this warranty.

Remanufactured Products: Warranty Exchange, Repair, and Certified Refurbished Products are remanufactured equipment with used components and tested to Polycold's specifications for operational performance.

Polycold warrants that from the date of delivery to Customer, Products will be free from defect in materials and workmanship for the duration of the applicable warranty period(s) and Terms published in effect as of the date of sale. See the Polycold Limited Warranty document and/or product manual for Limited Warranty periods for the products ordered.

The Exclusive Remedies for breach of warranty will be either repair or replacement of the nonconforming parts or Products during the warranty period at the sole discretion of Polycold, shipped ExWorks (Incoterms 2000) Polycold factory. Customer's recovery from Polycold for any claim shall not exceed the amount paid by customer to Polycold for the Product or Service giving rise to such claim, irrespective of the nature of the claim, whether in contract, tort, warranty, or otherwise. Customer must inspect the Products within a reasonable time upon receipt, and must notify Polycold within 30 days of discovering a defect. Every claim on account of defective material or workmanship shall be deemed waived unless made in writing within the warranty period specified above. Polycold does not assume, or authorize any other person to assume, any other obligations or liabilities in connection with the sale of the Products.

Disclaimers

POLYCOLD MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS OR SERVICES. UNLESS EXPRESSLY IDENTIFIED AS A WARRANTY, SPECIFICATIONS IN ANY PRODUCT DATASHEET CONSTITUTE PERFORMANCE GOALS ONLY, AND NOT WARRANTIES. POLYCOLD MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE, OR RESPECTING INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

POLCOLD DISCLAIMS ANY WARRANTY WITH RESPECT TO PRODUCTS MODIFIED WITHOUT POLYCOLD'S WRITTEN CONSENT. REPAIRS MADE OUTSIDE OUR FACTORY, PRODUCTS RENDERED DEFECTIVE BY CUSTOMER MISUSE, NEGLIGENCE, CORROSIVE ATMOSPHERES, ATTACK BY FREE CHEMICALS WITHIN THE SYSTEM, ACCIDENT, DAMAGE BY CUSTOMER OR CUSTOMER'S AGENT. IS OPERATED CONTRARY TO OUR RECOMMENDATION, IF THE SERIAL NUMBER HAS BEEN ALTERED, DEFACED, OR REMOVED, THE USE OF SERVICE REPLACEMENT REFRIGERANTS FROM ANY THIRD PARTY NOT LICENSED BY POLYCOLD, THE PRODUCTS IS OTHERWISE COMPROMISED BY USE OF UNAUTHORIZED PARTS OR SERVICE, OR THE SYSTEM IS COMPORMISED BY CONTAMINATED GAS OR COMPONENTS, ALL AS DETERMINED BY POLYCOLD IN ITS SOLE DISCRETION

Customer acknowledges that the foregoing warranty disclaimers are reflected in Product prices and Service fees.

Product Returns

In order to return a Product for repair, exchange or otherwise, Customer must obtain a Return Material Authorization ("RMA") number from Polycold and comply with Polycold's shipping instructions. All returned Products must be shipped freight prepaid in original shipping cartons, complete with all packing materials, to the location specified by Polycold. The RMA number must be prominently marked on the outside of the shipping box.

If Customer Product to be returned has been contaminated with Hazardous Materials a completed Health and Safety Certificate must be enclosed with all returned Products, and separately faxed to Polycold prior to shipment. Customer acknowledges that Polycold will not accept any Products exposed to biological hazards, radioactive material, organic metal or mercury ("Unacceptable Hazards"). Customer shall indemnify, defend and hold.

IN NO EVENT WILL CUSTOMER BE ENTITLED TO, NOR WILL POLYCOLD BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE, INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, ARISING AT ANY TIME, FROM ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DOWN-TIME COSTS, DATA LOSS, DAMAGE TO ASSOCIATED EQUIPMENT, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, OR LOST PROFITS, EVEN IF POLYCOLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF THE LIMITED REMEDIES OF REPAIR OR REPLACEMENT FAIL OF THEIR ESSENTIAL Polycold harmless against, expenses and claims for personal injury, property damage and disposal and clean-up costs arising from returned Products containing Unacceptable Hazards or undeclared contaminants.

Polycold will return to Customer, freight collect: a) Products shipped without an RMA number; b) Products shipped to a Polycold location, or via a shipment method, other than as specified by Polycold; and c) Products shipped without a complete Health and Safety Certificate that have been exposed to Unacceptable HazardsPURPOSE. THIS WAIVER OF LIABILITY DOES NEITHER APPLY TO POLYCOLD'S LIABILITY UNDER A STATUTE, ACT OR LAW PERTAINING TO BODILY INJURY, NOR TO ANY LIABILITY INCURING OUT OF DAMAGE TO THE BODY, HEALTH OR LIFE OF A PERSON.

CUSTOMER'S RECOVERY FROM POLYCOLD FOR ANY CLAIM SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO POLYCOLD FOR THE PRODUCT OR SERVICE GIVING RISE TO SUCH CLAIM, IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE.

POLYCOLD WILL NOT BE LIABLE FOR, AND CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD POLYCOLD HARMLESS AGAINST, ANY CLAIMS RELATING TO POLYCOLD'S COMPLIANCE WITH CUSTOMER'S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS; MODIFICATION OR REPAIR OF ANY PRODUCTS BY PARTIES OTHER THAN POLYCOLD; AND ANY CLAIMS BY THIRD PARTIES RELATING TO THE SERVICES AND PRODUCTS OR THEIR USE.

All repairs covered by the applicable warranty will be done at Polycold's factory. If Polycold determines that Products are not eligible for warranty repair service, Customer shall pay Polycold for all cost of investigating and responding to such request at the then prevailing rates, If Polycold provides repair services or replacement parts that are not covered by warranty, Customer shall pay Polycold at the then prevailing rates. Travel expenses incurred by Polycold employees shall be reimbursed by the Customer.

Transfer of title shall not operate to convey to Customer any right to make, or have made, any Product supplied by Polycold.

Polycold will not be liable for failure to fulfill its obligations, or for delays in delivery, due to causes beyond its reasonable business control, including, but not limited to, natural disasters or other acts of God; acts or omissions of suppliers, other parties, or civil or military authorities; interruptions in communications or delays in transportation; and war or acts of terrorism. Polycold's time for performance will be extended for the period of such delay, or Polycold may, at its option, cancel any order or remaining part thereof without liability.

All sales will be governed by, and any disputes arising thereunder will be resolved in accordance with, the laws of the Commonwealth of Massachusetts, to the exclusion of its choice of law rules. The United Nations Convention On Contracts For The International Sale Of Goods, 1980, will not apply.
If Customer fails to make payment when due, Polycold will be entitled to reimbursement for costs of collection and reasonable attorney's fees, and for interest on the past-due amount, accrued from the due date at the rate of one and one-half percent (1½%) per month, or such lower rate as may be the maximum allowable by law.
Polycold may bring an action for nonpayment or other breach by Customer before any US or international judicial court of competent jurisdiction; or, at Polycold's option, may submit the matter to arbitration as provided herein. Any other controversy or claim arising out of or relating to any sale of Products or Service will be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The number of Arbitrators shall be three. Each of the parties shall choose one arbitrator and the two nominated arbitrators shall in turn choose a third neutral arbitrator within 10 days. In the event they are not able to do so, the party's attorneys may request the American Arbitration Association to appoint the third neutral arbitrator. The arbitration shall be conducted in the English language.
The place of arbitration will be Boston, Massachusetts, USA. The arbitrators are not empowered to award punitive or exemplary damages, and each party hereby irrevocably waives any right to recover such damages with respect to any dispute resolved by arbitration.

Limited Warranty Periods for Polycold Products