1. DEFINITIONS: In these Standard Terms and Conditions (the “Standard Terms”), the following capitalized terms shall have the meanings ascribed to them:

“Customer” means the person, firm or company ordering Products or Services from Alluxa, Inc. (“ALLUXA”).

“Order Confirmation” means any written document from ALLUXA acknowledging receipt by ALLUXA of the Customer’s order to which these Standard Terms are attached.

“Products” means collectively the goods and materials to be supplied by ALLUXA that are the subject of the Quotation or Order Confirmation.

“Quotation” means a written offer from ALLUXA to sell Products or Services to which these Standard Terms are attached.

“Services” means any such services as may be provided by ALLUXA hereunder.

“Specification” means ALLUXA’s standard, written specification for the Products or Services or such other specification agreed to in writing by ALLUXA.

2. FORMATION OF CONTRACT: All purchases of Products or Services from ALLUXA by Customer shall be subject to these Standard Terms. This document is an offer or counteroffer by ALLUXA to sell the Products or Services described in the accompanying Quotation or Order Confirmation in accordance with these Standard Terms, is not an acceptance of any offer or counteroffer made by Customer, and is expressly conditioned upon Customer’s assent to these Standard Terms. ALLUXA objects to any additional or different terms or conditions contained in any request for quotation, purchase order, acknowledgment or other document or communication previously or hereafter provided by Customer to ALLUXA. No such additional or different terms or conditions will be of any force or effect. These Standard Terms, together with the consistent terms provided by ALLUXA in the Quotation or Order Confirmation, shall be referred to herein as the “Agreement” and will be the entire agreement between ALLUXA and Customer on the subject of the transaction described herein and therein; there are no conditions to the Agreement that are not so contained or incorporated. Other than transaction specific provisions that are confirmed in an Order Confirmation, no other terms in a purchase order (“PO”) shall apply or form part of the Agreement. This offer or counteroffer may be revoked by ALLUXA at any time before it is accepted by Customer. Customer accepts the Agreement by signing and returning the Quotation, by sending a PO in response to the Quotation, or by accepting or paying for Goods or Services.

3. PRICES: All prices are (a) firm for thirty (30) days from the date of quotation, (b) EXW ALLUXA factory and (c) exclusive of taxes, duties, insurance, brokerage fees, transportation or special packaging (“Charges”). Title and risk of loss to Products shall pass from ALLUXA to Customer upon delivery to the shipping carrier at the EXW point. Duties, value added, sales, use and withholding taxes are the responsibility of the Customer, and if paid by ALLUXA shall be reimbursed by Customer to ALLUXA.

4. TERMS OF PAYMENT: If a deposit is required by the Quotation, such deposit is due immediately. Upon credit approval by ALLUXA, payment terms shall be net thirty (30) days from the date of the shipment. ALLUXA reserves the right to require alternative payment terms including, letter of credit or payment in advance. All prices are stated and payable in U.S. Dollars without deduction or set-off. Any invoice that is not paid when due shall bear interest at 12% per annum.

5. PERFORMANCE AND SHIPPING: Shipping dates specified or communicated by ALLUXA to the Customer are based on average lead times. Failure to perform or ship on such dates shall not be considered a breach by ALLUXA. Safety stock agreements are recommended to insure uninterrupted delivery; contact ALLUXA for additional information. All claims for shortage of Products ordered or for incorrect charges must be presented to ALLUXA within ten (10) days after receipt by Customer of the particular shipment of Products. Customer shall be responsible for all shipping Charges. Unless given written instruction, ALLUXA shall select the carrier. Customer shall be responsible for storage costs attributable to delays in shipment. Customer will promptly inspect any Products upon receipt and notify ALLUXA of any nonconformity. Customer will be deemed to have inspected and accepted any shipment of Goods or performance of Services if, within thirty (30) days after Customer’s receipt of Goods or Services, Customer has not notified ALLUXA in writing that such Goods or Services are rejected, including providing a detailed description of the grounds therefore

6. CANCELLATION: The Customer may not cancel, terminate, suspend performance of, or issue a hold on, any Agreement, without the prior written consent of ALLUXA. Consent, if given, shall be upon terms that will compensate ALLUXA for any loss, including, but not limited to, any work in process, or services performed. Blanket orders terminated prior to fulfillment of the order shall be invoiced at the quantity discount for the actual quantity delivered (bill back); finished goods allocated to the blanket order will be invoiced at the contract price. Work
in process will be invoiced to recover ALLUXA’s material, labor, overhead, SG&A and profit. Finished goods will be invoiced at the contract price.

7. QUANTITY: ALLUXA endeavors to use its reasonable efforts to produce and ship the quoted quantity. Because Products are customized for Customer use, there are unavoidable variations in usable output from run to run. ALLUXA reserves the right to consider a PO complete once a substantial portion of the quantity ordered is shipped. In that event, ALLUXA will honor unit pricing based on the original PO quantity.

8. MEASUREMENT and INSPECTION: ALLUXA provides optical measurement and inspection support and coverage to ensure product compliance with specifications. In some cases, a combination of best-known measurement techniques will be used, where appropriate, to determine product compliance in areas such as high-density optical blocking or steep edge filters where a single technique is not sufficient. Unless specific measurement criteria are determined in writing prior to the PO, measurements of blocking greater than 5.5 OD will be met by design if the relevant measurement data supports such a conclusion. Where measurements are not capable of verifying the specifications, ALLUXA will apply best known methods along with theoretical information about the product to determine the best estimate of performance/compliance with the product specification. Measurement of filter performance at angle will be verified by theoretical offset from measured data at zero degrees and/or nominal angle unless otherwise agreed to in writing at time of PO. Wavelength measurements to be performed on Agilent / Cary 5000 or 6000i spectrophotometers. The results of these measurements will be used to disposition wavelength-based specifications unless otherwise agreed to in writing at time of PO. During MIL standard surface quality inspections, ALLUXA will refer to the procedures and techniques defined in the ANSI OP1.002 as the governing standard, except for accumulation guidelines, which will not be used for product disposition.

9. LIMITED PRODUCT WARRANTY: ALLUXA warrants that the Products will for a period of one year from the date of shipment be free from defects in materials and workmanship and will at the time of delivery meet or exceed the Specifications. With respect to any Services performed, ALLUXA warrants for a period of six (6) months from the date on which such Services were performed that such Services were performed in accordance with any applicable Specification and consistent with established industry practice. If, following the procedures in Section 10, ALLUXA determines that a Product or Services breaches the foregoing warranty, ALLUXA will, at its discretion, repair, replace or provide a credit for the purchase price for the defective Product or Services.

THE FOREGOING REMEDIES SHALL BE THE EXCLUSIVE REMEDY FOR BREACH OF WARRANTY. THE WARRANTY DOES NOT APPLY TO ANY PRODUCTS OR SERVICES THAT ARE MISUSED OR SUBJECT TO ABNORMAL USE. THE WARRANTY PROVIDED IN THIS SECTION 9 IS THE EXCLUSIVE WARRANTY. ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, MERCHANTABILITY OR FITNESS FOR PURPOSE, ARE HEREBY DISCLAIMED. ALLUXA SHALL HAVE NO LIABILTY FOR DEFECTS IN FINISHED CUSTOMER MATERIALS ON WHICH SERVICES WERE PERFORMED THAT ARE NOT CAUSED BY THE SERVICES.

10. RETURN MATERIAL AUTHORIZATION PROCEDURES: ALLUXA will only accept Products returned in a manner consistent with the ALLUXA Return Material Authorization process (“RMA”). The Customer shall obtain an RMA number from ALLUXA prior to returning any Product and return the Product, including an itemized statement of defect(s), prepaid and insured to ALLUXA to the EXW point. Any Product which has been returned to ALLUXA, but which is found to not have breached the warranty, shall be subject to ALLUXA’s standard examination charge. ALLUXA assumes no liability for Customer furnished material. No claim for breach of warranty shall be valid if received after the expiration of the applicable warranty period.

11. LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING ELSE HEREIN TO THE CONTRARY, ALLUXA SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND/OR (B) WHETHER OR NOT ALLUXA WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, ALLUXA specifically disclaims any liability for penalties, down-time, lost good will, cost of capital, or for any other types of economic loss, or for claims of Customer’s customers or any third party for any such damages, costs or losses.

Notwithstanding anything to the contrary contained herein, the aggregate liability of ALLUXA to the Customer within any twelve-month period in respect of all claims under this Agreement and all other agreements for the supply of Products AND SERVICES, whether such liability arises in contract, tort (including negligence and strict liability) or breach of statutory duty or otherwise, shall be limited to the direct damages of the Customer not to exceed the lesser of (a) the total price paid by the Customer to ALLUXA for the order of Products OR SERVICES to which the liability relates or (b) $100,000.

12. EXPORT RESTRICTIONS: Customer shall comply with all applicable laws, rules, and regulations. Customer shall obtain all licenses, permits and approvals required by any government. Customer shall not transmit, export or re-export, directly or indirectly, separately or as part of any system, the Products or any technical data (including processes and services) received from ALLUXA, without first obtaining any license required by the applicable government, including, without limitation, the United States Government and/or any other applicable competent authority. Customer also certifies that none of the products or technical data supplied by ALLUXA under this Agreement will be sold or otherwise transferred to, or made available for use by or for, any entity that is engaged in the design, development, production or use of nuclear, biological or chemical weapons or missile technology.

13. RIGHTS IN INTELLECTUAL PROPERTY: All right, title and interest in and to any inventions, discoveries, improvements, methods, ideas, and other and related documentation, or other forms of intellectual property, which are made, created, developed, written, conceived or first reduced to practice by ALLUXA solely, jointly or on its behalf, in the course of, arising out of, or as a result of ALLUXA’s work performed under an order, shall belong to and be the sole and exclusive property of ALLUXA. Customer agrees not to reverse engineer all or any portion of any Product nor allow or assist others to do so.

14. GENERAL TERMS:

14.1 The validity, interpretation and performance of this Agreement shall be governed by and construed under the applicable laws of the State of California and the United States of America, as if performed wholly within the state and without giving effect to the principles of conflict of laws. The parties hereby agree that any dispute arising out of this or related to this Agreement shall be resolved by arbitration under the Commercial Rules of the American Arbitration Association. All such proceedings shall take place in Santa Rosa, California.

14.2 ALLUXA shall not be liable for any delay or failure in performance whatsoever due to acts of God, earthquakes, shortage of supplies beyond the control of ALLUXA, transportation difficulties, labor disputes, riots, war, fire, explosion, epidemics, or other occurrences beyond ALLUXA’s reasonable control or due to unforeseen circumstances.

14.3 Waiver by ALLUXA of any provision herein must be in writing and shall not be deemed to be a waiver of such provision in the future or of any other provision.

14.4 All non-public, confidential or proprietary information of ALLUXA, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, processes, techniques, customer lists, pricing, discounts, or rebates, disclosed by ALLUXA to Customer, 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 ALLUXA in writing. Upon ALLUXA’s request, Customer shall promptly return all documents and other materials received from ALLUXA. ALLUXA 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 Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.

14.5 Neither this Agreement nor any rights under this Agreement, other than monies due or to become due, shall be assigned or otherwise transferred by Customer (by operation of law or otherwise) without the prior written consent of ALLUXA. This Agreement shall bind and inure to the benefit of the successors and permitted assigns of the parties.

14.6 This Agreement constitutes the entire agreement between the parties hereto concerning the subject matter of this Agreement, apart from existing non-disclosure agreements, and there are no understandings, agreements, representations, conditions, warranties, or other terms, express or implied, which are not specified herein. This Agreement may only be modified by a written document executed by authorized representatives of ALLUXA and Customer.

14.7 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Standard Terms.