PURCHASE ORDER TERMS AND CONDITIONS

1.  FORMATION OF CONTRACT AND MODIFICATIONS.  This Purchase Order is MICHAEL ROBERTS CONSTRUCTION, INC.’s offer to Seller to purchase the goods or services at prices listed on the face of this Order.  Acceptance by Seller is expressly limited to the terms of this offer.  Seller may accept MICHAEL ROBERTS CONSTRUCTION, INC.’s offer by commencement of performance hereunder or by timely written acknowledgement of this Order.  However, if Seller's acceptance is by commencement of performance, MICHAEL ROBERTS CONSTRUCTION, INC. reserves the right to treat its offer as having lapsed before acceptance unless MICHAEL ROBERTS CONSTRUCTION, INC.  is notified of such acceptance within a reasonable time.  Any different or additional terms of Seller are hereby objected to and rejected by MICHAEL ROBERTS CONSTRUCTION, INC.  This Order, including any documents incorporated herein by express reference, is intended to be a complete integration and there are no prior or contemporaneous agreements or understandings pertaining to the subject matter of this Order.  Upon Seller's acceptance, this Purchase Order shall be the complete and exclusive statement of the terms and conditions between the parties and shall not be modified or interpreted by reference to any prior course of dealing, usage of trade, or course of performance.  No modification of this Purchase Order shall be effective or become binding upon MICHAEL ROBERTS CONSTRUCTION, INC. unless signed by an authorized MICHAEL ROBERTS CONSTRUCTION, INC.  Purchasing Representative.

2.  PRICE AND DELIVERY.  Seller shall strictly adhere to the delivery and completion schedules specified in this Purchase Order and agrees that time is of the essence in the delivery of all goods hereunder.  If, at any time, Seller believes it may not be able to comply with the required delivery or completion schedules, Seller shall immediately notify the MICHAEL ROBERTS CONSTRUCTION, INC.  Purchasing Representative, in writing, and shall continue to notify MICHAEL ROBERTS CONSTRUCTION, INC.  of any significant change in delivery status.  MICHAEL ROBERTS CONSTRUCTION, INC.  may, in addition to all other remedies, require Seller, at Seller's expense, to ship goods via air freight or other expedited routing to avoid or minimize delay.  MICHAEL ROBERTS CONSTRUCTION, INC. may return, or store at Seller's expense, any goods delivered more than ten (10) days in advance of the delivery date specified for such goods.  If prices and/or delivery dates are not stated, Seller shall offer its lowest prices and best delivery dates, both of which shall be subject to written acceptance by MICHAEL ROBERTS CONSTRUCTION, INC. .

3.  PRICE WARRANTY.  Seller warrants that the price of the goods and services furnished to MICHAEL ROBERTS CONSTRUCTION, INC.  under this Purchase Order does not exceed the price charged by Seller to any other customer purchasing the same goods and services in like or smaller quantities and under similar conditions of purchase.

4.  PACKING AND SHIPPING.  Seller will not charge for packaging or storage.  All goods shall be packaged, marked, and otherwise prepared in accordance with good commercial practices to obtain lowest shipping rates and in a manner adequate to insure safe arrival of the goods to the named destination.  Seller shall mark on containers handling and loading instructions, shipping information, order number, item and account number, shipment date and names and addresses of Seller and MICHAEL ROBERTS CONSTRUCTION, INC.  An itemized packing list shall accompany each shipment.

5.  FOB, TITLE, AND RISK OF LOSS.  Unless the terms of this Purchase Order specifically provide for earlier passage of title, title to goods covered by this Purchase Order shall pass to MICHAEL ROBERTS CONSTRUCTION, INC. upon acceptance, regardless of when or where MICHAEL ROBERTS CONSTRUCTION, INC.  takes physical possession.  Unless otherwise provided herein, risk of loss of or damage to goods covered by this Purchase Order shall remain with the Seller until, and shall pass to MICHAEL ROBERTS CONSTRUCTION, INC.  upon:

1) Delivery of the goods to a carrier, if transportation is F.O.B. origin; or

2) Acceptance by MICHAEL ROBERTS CONSTRUCTION, INC. or delivery of possession of goods to MICHAEL ROBERTS CONSTRUCTION, INC. at the destination specified in this Order, whichever is later, if transportation is F.O.B. destination.

Notwithstanding the above, the risk of loss or damage to goods which so fail to conform to this Order as to give a right of rejection shall remain with Seller until cure or acceptance, at which time the above shall again apply.

6.  INVOICING, TAXES, AND PAYMENT.  For each shipment of goods or completion of services, Seller shall submit an original invoice marked "Original" and one copy marked "Copy" to MICHAEL ROBERTS CONSTRUCTION, INC.’s Accounts Payable Department at the address specified on the face of this Purchase Order.  MICHAEL ROBERTS CONSTRUCTION, INC.  may return Seller's invoices for correction or offset due to shortages, late deliveries, rejections or other failure to comply with the requirements of this Order, before it pays such invoice.  Seller shall pay and has included in the price of this Purchase Order, any federal, state, or local sales, transportation, use or other tax (except for income taxes) required to be imposed on the goods or services ordered hereunder by reason by their manufacture, sale, or delivery.  Determination of payment due date shall be in accordance with the terms of this Purchase Order and will be based on the latest of:

1) The date goods are received or services are completed;

2) The date goods are scheduled to be received or services are scheduled for completion under the Purchase

Order; or

3) The date an accurate invoice is received by MICHAEL ROBERTS CONSTRUCTION, INC.

Payment by MICHAEL ROBERTS CONSTRUCTION, INC. will be deemed to have been made when deposited in the mail or when it activates a wire transfer on Seller's behalf.

7.  INSPECTION AND ACCEPTANCE.  All goods may be inspected and tested by MICHAEL ROBERTS CONSTRUCTION, INC., its customers, and contractors at all reasonable times and places.  If such inspection or testing is made on Seller's premises, Seller shall provide, without additional charge, all reasonable facilities and assistance for such inspections and tests.  All inspection records relating to the goods shall be available to MICHAEL ROBERTS CONSTRUCTION, INC. during the performance of this Order, and for such longer periods as specified by MICHAEL ROBERTS CONSTRUCTION, INC. MICHAEL ROBERTS CONSTRUCTION, INC.  may also subject all goods to final inspection, test and acceptance at the destination and shall accept or give notice of rejection of goods within a reasonable time after receipt of such goods.  If rejection of a shipment would result from MICHAEL ROBERTS CONSTRUCTION, INC.’s normal inspection level, MICHAEL ROBERTS CONSTRUCTION, INC.  may, at its option, conduct an above-normal level of inspection, up to 100% inspection, and charge the Seller the reasonable costs thereof.  No acceptance or inspection of goods by MICHAEL ROBERTS CONSTRUCTION, INC.  prior to acceptance shall release Seller of its responsibility for any nonconformity, latent defects, fraud, mistakes, or warranty obligations.  If the goods are defective or otherwise not in conformity with the requirements of this Order, MICHAEL ROBERTS CONSTRUCTION, INC. may, by written notice to Seller: (1) rescind this Order as to such goods; (2) accept such goods at an equitable reduction in price; (3) reject such goods and require the delivery of replacements; (4) replace or correct such goods and charge the Seller the costs thereof; (5) terminate this Order for default; and 6) seek any other remedies in law or equity.  Any nonconforming tender of goods shall be deemed to substantially impair the value of this Purchase Order as a whole to MICHAEL ROBERTS CONSTRUCTION, INC.

8.  WARRANTIES.  Seller warrants that all goods and services furnished hereunder will conform to the requirements of this Purchase Order (including all descriptions, specifications and drawings made a part of this Order) and that such goods will be merchantable, fit for their intended purposes, free from all defects in materials and workmanship and, to the extent not manufactured pursuant to detailed designs furnished by MICHAEL ROBERTS CONSTRUCTION, INC., free from defects in design.  Neither MICHAEL ROBERTS CONSTRUCTION, INC.’s approval of Seller's designs or specifications nor MICHAEL ROBERTS CONSTRUCTION, INC.’s acceptance of goods or services furnished by Seller shall relieve Seller of its obligations under this warranty.  In addition to its other remedies, MICHAEL ROBERTS CONSTRUCTION, INC. may, at Seller's expense, require prompt correction or replacement of any goods and services failing to meet Seller's warranty herein.  Goods and services corrected or replaced by Seller shall be subject to all of the provisions of this Purchase Order in the manner and to the same extent as goods and services originally furnished hereunder.  MICHAEL ROBERTS CONSTRUCTION, INC.’s warranty rights hereunder are in addition to, but shall not be limited by any standard warranties offered by Seller.  All warranties of Seller, including its service warranties and guarantees, if any shall run to the benefit of MICHAEL ROBERTS CONSTRUCTION, INC. and its customers as determined by the MICHAEL ROBERTS CONSTRUCTION, INC.  Purchasing Representative.

9.  PARTS OR EQUIPMENT SUPPLIED BY MICHAEL ROBERTS CONSTRUCTION, INC.  Seller will keep all property furnished by MICHAEL ROBERTS CONSTRUCTION, INC.  segregated and clearly marked, and Seller will maintain a complete inventory thereof.  Seller assumes all risk of loss, destruction or damage to such property while in Seller's custody or control, and agrees to immediately notify MICHAEL ROBERTS CONSTRUCTION, INC.  of any such loss, destruction or damage.  Upon termination or completion of this Purchase Order, Seller will deliver such property as directed by MICHAEL ROBERTS CONSTRUCTION, INC., in good condition subject to ordinary wear and tear plus normal manufacturing losses as determined by the MICHAEL ROBERTS CONSTRUCTION, INC.  Purchasing Representative.

10.  CESSATION OF PRODUCTION.  If Seller intends to permanently discontinue production of any goods at any time within one (1) year after final delivery of such goods under this Order, it shall give MICHAEL ROBERTS CONSTRUCTION, INC. at least one hundred eighty (180) days prior written notice of such discontinuance, during which time Seller shall accept orders from MICHAEL ROBERTS CONSTRUCTION, INC. for a reasonable quantity of such goods

11.  PROPRIETARY INFORMATION.  All information obtained by Seller from Buyer or learned by Seller from Buyer in connection with this order or relating in any way to Seller’s Business shall be received in confidence and remain the property of Buyer, and shall be used and disclosed by Seller only to the extent necessary for the performance of this order, except that, upon prior written notice to Buyer. Seller may use such information in the manufacture of and items for direct sale to the U.S. Government to the extent that the U.S. Government has the right to authorize such use by Seller, and, provided that Seller, to the extent practicable, prominently identifies such end items as being manufactured by Seller for direct sale to the U.S. Government.

12.  CHANGES.  MICHAEL ROBERTS CONSTRUCTION, INC.  may, at any time, make changes within the general scope of this Purchase Order which affect the:

1) Drawings, designs or specifications;

2) Method of shipment or packing;

3) Place of inspection, delivery or acceptance;

4) Quantities and delivery schedules;

5) Description of time or place of performance of services; or

6) Other similar terms and conditions.

If any such change causes an increase or decrease in the cost of or the time required for performance of this Purchase Order, an equitable adjustment shall be made in the price or delivery schedule or both and this Purchase Order shall be modified in writing accordingly.  Any claim for adjustment under this Section may, at MICHAEL ROBERTS CONSTRUCTION, INC.’s option, be deemed to be absolutely and unconditionally waived unless asserted in writing (including the amount of the claim) and delivered to MICHAEL ROBERTS CONSTRUCTION, INC.  within thirty (30) days from the date of receipt by Seller of the change order.  Pending any such adjustment, Seller will diligently proceed with the Purchase Order as modified.  MICHAEL ROBERTS CONSTRUCTION, INC.’s engineering and technical personnel are not authorized to change the goods or services ordered or any other provision of this Order.  No change order will be biding on MICHAEL ROBERTS CONSTRUCTION, INC. unless issued by an authorized MICHAEL ROBERTS CONSTRUCTION, INC.  Purchasing Representative.

13.  TERMINATION FOR DEFAULT.  MICHAEL ROBERTS CONSTRUCTION, INC. may terminate all or any part of this Purchase Order if Seller fails to perform any of its obligations hereunder or so fails to make progress as to endanger its performance in accordance with its terms. Upon notice of such termination, MICHAEL ROBERTS CONSTRUCTION, INC. may require Seller to transfer title and deliver to MICHAEL ROBERTS CONSTRUCTION, INC.  any completed or partially completed goods and materials as Seller has produced or acquired for the performance of this Order.  Seller shall remain liable for all damages incurred by MICHAEL ROBERTS CONSTRUCTION, INC. as a result of Seller's breach and will reimburse MICHAEL ROBERTS CONSTRUCTION, INC.  for all such damages.   In addition, MICHAEL ROBERTS CONSTRUCTION, INC. may offset any such damages from any amounts of money due Seller by MICHAEL ROBERTS CONSTRUCTION, INC., whether or not such amounts arise out of this Purchase Order.  If, after notice of termination for default, it is determined that the failure to perform is not a breach of this Order, then any notice of default shall be deemed to have been issued pursuant to Section 13 hereof.

14.  TERMINATION FOR CONVENIENCE.  At any time, MICHAEL ROBERTS CONSTRUCTION, INC. may terminate this Purchase Order in whole or in part for its convenience.   In this instance, the parties will negotiate an equitable settlement amount, which shall in no event exceed the price of the goods which are the subject of such termination.  Seller must submit a written termination claim to MICHAEL ROBERTS CONSTRUCTION, INC.  within ninety (90) days after the effective date of termination, or such claim shall be absolutely and unconditionally waived.

15.  PATENT, COPYRIGHT AND TRADEMARK INDEMNIFICATION.  Seller shall defend and hold harmless MICHAEL ROBERTS CONSTRUCTION, INC., its customers, and end-users from all loss or damage arising out of any and all actions or proceedings charging infringement or wrongful use of any patent, trademark, trade secret, mask work, or copyright by reason of sale or use of any goods, software or data furnished hereunder, unless such claims are based solely on goods or specifications supplied by MICHAEL ROBERTS CONSTRUCTION, INC.  to Seller.  If the use or sale of any goods, with respect to which Seller indemnifies MICHAEL ROBERTS CONSTRUCTION, INC. is enjoined as a result of such action or proceeding, Seller, at no expense to MICHAEL ROBERTS CONSTRUCTION, INC. shall obtain for MICHAEL ROBERTS CONSTRUCTION, INC., its customers and end-users, the right to use and sell such goods or shall substitute an equivalent item acceptable to MICHAEL ROBERTS CONSTRUCTION, INC.  and extend this same written indemnification with respect to such equivalent item.  If Seller cannot secure such right of use for MICHAEL ROBERTS CONSTRUCTION, INC., its end-users and customers, or secure an equivalent item as a substitute, Seller will indemnify MICHAEL ROBERTS CONSTRUCTION, INC., its customers and end-users for any and all losses or damages sustained by reason of such injunction. 

MICHAEL ROBERTS CONSTRUCTION, INC.  shall have the right, at no additional charge, to use and/or reproduce Seller's applicable literature, such as operating and maintenance manuals, technical publications, prints, drawings, training manuals, and other similar supporting documentation and sales literature.  Seller shall advise MICHAEL ROBERTS CONSTRUCTION, INC.  of any updated information relative to the foregoing literature and documentation with timely notifications in writing.

16.  LIABILITY FOR INJURY.  Seller shall indemnify MICHAEL ROBERTS CONSTRUCTION, INC.  against any and all costs, loss and liability for all personal injury and property damage caused by the goods or services performed by Seller (whether performed on the premises of Seller or MICHAEL ROBERTS CONSTRUCTION, INC. or elsewhere), and shall defend at its sole cost and expense any action brought against MICHAEL ROBERTS CONSTRUCTION, INC.  as a result of any such personal injury or property damage.  Seller shall carry and maintain insurance coverage satisfactory to MICHAEL ROBERTS CONSTRUCTION, INC. to cover the above and, upon MICHAEL ROBERTS CONSTRUCTION, INC.’s request shall furnish MICHAEL ROBERTS CONSTRUCTION, INC. with evidence of such insurance in a form satisfactory to MICHAEL ROBERTS CONSTRUCTION, INC.

17.  APPLICABLE LAW.  This Purchase Order shall be governed by and enforced in accordance with California law as applied to contracts entered into in California by California residents to be performed entirely within the State of California.  Any action arising out of a dispute between the parties shall be brought in either the Superior Court for the City and County of Santa Clara or the United States District Court for the Northern District of California, and each of the parties hereby submits itself to the jurisdiction of such courts for purposes of any such action.  Seller agrees that service upon Seller in such action or proceeding may be made by first class mail, certified or registered, to Seller's address last appearing on MICHAEL ROBERTS CONSTRUCTION, INC.’s records.  The parties expressly agree that the United Nations Convention on the International Sale of Goods shall not apply to this Purchase Order.

18.  RIGHTS AND REMEDIES.  The rights and remedies of MICHAEL ROBERTS CONSTRUCTION, INC. herein are cumulative and are in addition to any other rights or remedies that MICHAEL ROBERTS CONSTRUCTION, INC.  may have at law or in equity.

19.  SUBCONTRACTING AND ASSIGNMENT.  Seller will not subcontract, without MICHAEL ROBERTS CONSTRUCTION, INC.’s prior written consent, the design, development or procurement of the whole or any substantial portion of any goods or services ordered hereunder.

This limitation shall not apply to Seller's purchases of standard commercial supplies or raw materials.  Seller may not assign this Purchase Order or any interest or right herein without the prior written consent of MICHAEL ROBERTS CONSTRUCTION, INC.

20.  GOVERNMENT CONTRACTS.  If this Order is issued for any purpose which is either directly or indirectly connected with the performance of a prime contract with the Government or a subcontract thereunder, each of the herein below named clauses, as set forth in the Federal Acquisition Regulation in effect on the date of this Order, is incorporated herein by reference, if such clause (or any earlier edition thereof) is in said prime contract or subcontract, the clauses so incorporated herein applying to Seller as though Seller were a prime contractor and in such a manner as will enable Buyer to meet its obligations arising out of the Government prime or subcontract: 52.202-1, Definitions: 52.203-1, Officials Not to Benefit: 52.203-5, Covenant Against Contingent Fees: 52.208-7002, Required Sources for High-Purity Silicon; 52.210-5, New Material; 52.212-8, Priorities, Allocations, and Allotments; 52.212-9, Variation in Quantity; 52.212-13, Stop-Work Order; 52.212-15, Government Delay of Work; 52.214-24, Multiple Technical Proposals; 52.214-7000, Discounts; 52.215-1, Examination of Records By Comptroller General; 52.215-22, Price Reduction for Defective Cost or Pricing Data; 52215.23, Price Reduction for Defective Cost or Pricing-Modifications; 52.215-25, Subcontractor Cost or Pricing Data-Modifications; 52.219-8, Utilization of Small Business Concerns and Small Disadvantaged Business Concerns; 52.219-9, Small Business and Small Disadvantaged Business Subcontracting Plan; 52.219-13, Utilization of Women-Owned Small Businesses; 52.220-3, Utilization of Labor Surplus Area Concerns; 52.220-4, Labor Surplus Area Subcontracting Program; 52.222-1, Notice to the Government of Labor Dispute; 52.222-4, Contract Work Hours and Safety Standards Act-Overtime Compensation-General; 52.222-20, Walsh-Healy Public Contracts Act; 52.222-26, Equal Opportunity; 52.222-35, Affirmative Action for Special Disabled and Vietnam Era Veterans; 52.222-36, Affirmative Action for Handicapped Workers; 52.223-2, Clean Air and Water; 52.223-3, Hazardous Material Identification and Material Safety Data; 52.223-7000, Notice of Radioactive Materials; 52.225-3, Buy American Act-Supplies; 52.225-7, Balance of Payments Program; 52.225-9, Buy American Act-Trade Agreements Act-Balance of Payments Program; 52.225-10, Duty-Free Entry; 52.225-11, Certain Communist Areas; 52.227-1, Authorizations and Consent; 52.227-2, Notice and Assistance Regarding Patent & Copyright Infringement; 52.227-3, Patent Indemnity; 52.227-7013, Rights in Technical Data and Computer Software Alternate I; 52.227-7034, Patents-Subcontract; 52.227-8, Reporting of Royalties; 52.227-9, Refund of Royalties; 52.227-10, Filing of Patent Applications-Classified Subject Matter; 52.229-3, Federal, State and Local Taxes; 52.232-8, Discounts for Prompt Payments; 52.232-11, Extras; 52.232-17, Interest; 52.232-23, Assignments of Claims; 52.233-1, Disputes; 52.243-1, Changes; 52.244-5 Competition in Subcontracting; 52.246-1, Responsibility for Inspection; 52.246-2, Inspection of Supplies Fixed Price; 52.246-16, Title & Risk of Loss; 52.249-1 or 52.249-2 (as appropriate), Termination for Convenience of the Government; 52.249-8, Default. Where any references above contain alternative clauses, the alternative shall apply which is required and most consistent with this Order.

21.  GENERAL.  Compliance with Laws:  In the performance of this Purchase Order, Seller shall comply with all applicable statutes and governmental rules, regulations and orders.  Seller shall indemnify, hold harmless and defend MICHAEL ROBERTS CONSTRUCTION, INC.  from and against all losses, costs, fees and damages arising directly or indirectly from any actual or alleged failure by Seller to comply with such statutes, rules, regulations, and orders. Waiver.  No failure or delay by either party in the exercise of any right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right or privilege preclude other or further exercise thereof or of any other right or privilege.  Notice.  Any notice or claim provided for herein shall be in writing and shall be given (i) by personal delivery, effective upon delivery, (ii) by first class mail, postage prepaid, addressed to the address stated herein for the recipient, effective five (5) business days after proper deposit in the mail, or (iii) by facsimile directed to the facsimile number first indicated above for the recipient, but only if accompanied by mailing of a copy in accordance with (ii) above, effective as of the date of facsimile transmission. Severability If any provision of this Agreement is held to be ineffective, unenforceable or illegal for any reason, such decision shall not affect the validity or enforcement of any remaining portions thereof.  Publicity.  Seller shall not issue any news release, public announcement, advertisement, denial or confirmation of all or any part of the subject matter of this Purchase Order without the prior written approval of MICHAEL ROBERTS CONSTRUCTION, INC.  Relationship of the Parties.  The relationship of the parties hereto is that of independent contractors.  Neither party, nor its agents or employees shall be deemed to be the agent, employee, joint venturer, partner or fiduciary of the other party. Neither party shall have the right to bind the other party, transact any business in the other party's name or on its behalf or incur any liability for or on behalf of the other party.

22. The terms and scope of this purchase order shall supersede and exclude those listed on original proposal/bid.