TERMS AND CONDITIONS OF PURCHASE

1. EXCLUSIVE TERMS, CONDITIONS AND LIMITATIONS OF OFFER. These terms and conditions (“Terms”) govern the purchase and sale of goods and/or services (“Products”) by Conductive Containers, Inc. or one of its affiliates identified on the accompanying purchase order (the “Purchase Order”), (hereinafter referred to as “Buyer”) to the seller identified therein (“Seller”). These Terms and the Purchase Order comprise the entire agreement between the parties (collectively, the “Agreement”), and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Seller accepts these Terms by signing and returning Buyer’s Purchase Order or by commencement of performance thereof. No additional or different terms or conditions, in any way purporting to modify these Terms, whether contained in Seller’s acknowledgement or elsewhere, shall be binding on Buyer unless hereafter made in writing, signed by Buyer’s authorized representative, and specifically referencing these Terms and stating that it modifies them. Seller is hereby notified of Buyer’s express rejection of any terms inconsistent with these Terms or to any other terms proposed by Seller. Neither Buyer’s subsequent lack of objection to any terms, nor the acceptance of the Products, shall constitute an agreement by Buyer to any such terms. Trade custom, trade usage and past performance are superseded by these Terms and shall not be used to interpret these Terms.
2. DELIVERIES AND SHIPMENT. Products must be shipped to the delivery point on the date(s) and in accordance with the Incoterm specified on the Purchase Order; provided that if no Incoterm is specified, the applicable Incoterm shall be DDP (delivered duty paid – named place of destination). Itemized packing lists will accompany each shipment. Buyer’s count will be accepted as final and conclusive on shipments not accompanied by Seller’s itemized packing list. No charge will be allowed for packing, shipment, or handling unless otherwise stated in the Purchase Order. Time and rate of delivery are of the essence in the performance of the Agreement. Seller will promptly notify Buyer of any actual or anticipated delay of delivery and take all reasonable steps to avoid or end delay without additional cost to Buyer. Buyer reserves the right to reject all or any part of any delivery that varies from the quantity authorized by Buyer for shipment. All Products will be packaged and shipped in accordance with Buyer’s instructions or, if none are specified, in accordance with good commercial practice in a manner sufficient to ensure arrival in an undamaged condition. Title and risk of loss to Products pass to Buyer upon delivery to the delivery point unless otherwise specified on the Purchase Order or the applicable Incoterm; provided that upon Buyer issuing a notice of rejection for such Product, risk of loss or damage to such Product or resulting from such Product shall pass to Seller.
3. CANCELLATION. Buyer may by written notice of default to Seller: (a) terminate the whole or any part of the Agreement in any one of the following circumstances: (i) if Seller fails to make shipment of items or fails to perform the work within the time specified in the Agreement or any extension thereof; or (ii) if Seller fails to comply with the other terms and conditions of the Agreement; and (b) procure upon such terms as Buyer shall deem appropriate, items or services similar to those so terminated, in which case Seller shall continue performance of the Agreement to the extent not terminated and shall be liable to Buyer for any excess costs for such similar items or services and any expenses incurred in connection therewith. Seller shall indemnify and hold harmless Buyer for all costs, expenses and damages, whether direct, indirect, incidental or consequential, arising from Seller’s default.
4. PRICES. Seller warrants that the prices for Products sold to Buyer under the Agreement is no less favorable than that extended during the term of the Agreement to any other customer for the same or like products in equal or less quantities on similar terms and conditions. Unless otherwise provided on the Purchase Order, Seller’s price includes all packaging, crating and federal, state and local taxes, if applicable, and is firm for the delivery period.
5. INVOICING AND PAYMENT TERMS. Payment terms are as set forth on the Purchase Order. In the absence of such provisions on the Purchase Order, payment terms shall be net sixty (60) days from the date the correct invoice is received by Buyer, or the date the Products are received or services rendered, whichever is later. Buyer shall not be liable for, and Seller shall waive its right to claim payment of, any fees, costs, taxes and expenses arising out of the Agreement for which Buyer does not receive an invoice within ninety (90) days after the date such invoice should have been provided to Buyer in accordance with this Section 5. Neither payment made to Seller nor any use or inspection of the Products shall constitute acceptance. Final payment to Seller shall not relieve Seller of any of its obligations or liabilities under the Agreement. Buyer may set-off any amount due from Seller, or its affiliates, to Buyer or its affiliates, whether or not under the Agreement, from any amounts due to Seller or its affiliates under the Agreement.
6. INSPECTION; REJECTION OF PRODUCT. Notwithstanding (i) payment, (ii) passage of title, or (iii) prior inspection or test, all Products are subject to final inspection and acceptance or rejection by Buyer at Buyer’s facility. At all reasonable times, Buyer may inspect the Products at the places where the work is being performed, and Seller will provide, without additional charge, reasonable facilities and assistance for safe and convenient inspection and test. Buyer may inspect 100% or a sample of all Products or any lot of Products at Buyer’s option, and Buyer has the right to reject all or any portion of the Products or lot of Products if any such inspection reveals them to be, in Buyer’s sole opinion, defective or nonconforming. Products rejected by Buyer shall be returned to Seller at Seller’s sole expense and risk. Buyer shall not be liable for any restocking or other charges for rejected Products returned to Seller. If requested by Buyer in the notice of rejection, Seller shall promptly make such repairs, replacements or corrections to the Products. All remedial work shall be at the sole expense and risk of Seller. Acceptance by Buyer of any Products shall not relieve Seller of any of its obligations or liabilities under the Agreement, including any warranty obligations. Seller will keep complete records of all inspection work and will make them available to Buyer and its customers during the performance hereof and for ten (10) years after final payment by Buyer. Buyer is not required to inspect Products delivered, and no inspection or failure to inspect will reduce or alter Seller’s obligations under this Agreement. Seller is responsible for the performance of all activities affecting the Products quality and delivery, including those of its sub-suppliers.
7. WARRANTY. Seller warrants to Buyer, that the Products will be free from defects in material and workmanship. Further, all Products furnished will conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Buyer and, to the extent such Products are not of a detailed design furnished by Buyer, will be merchantable, suitable for the intended purposes and free from all other defects, including defects in design. To the extent the Purchase Order calls for services to be performed, such services will be free from defects in workmanship, will meet all of the requirements of the Agreement and will be performed to the highest standards of workmanship in the industry. The foregoing warranties shall survive acceptance and payment and shall run to the Buyer, its customers and the users of the item or work. If the Products are defective, Seller shall promptly repair or replace such nonconforming Products. Failure of Seller to repair or replace nonconforming Products entitles Buyer, at its election, and in addition to any other rights or remedies it may have at law or in equity, to have such nonconforming Products repaired or replaced at Seller’s expense. Unless set-off by Buyer, Seller will reimburse Buyer for all such costs within thirty (30) days of receipt of Buyer’s invoice.
8. FORCE MAJEURE. Neither party shall be in default for any delay or failure of delivery or performance when and to the extent such delay or failure is due to causes beyond its control and without its fault or negligence; provided, that any delay or failure to perform caused by the default of a supplier of Seller at any lower-tier will be excused only if it is beyond the control of both Seller and such supplier and without the fault or negligence of either and the goods to be furnished are not obtainable from other sources in sufficient time to permit Seller to meet the delivery schedule; and provided further, that Seller furnishes prompt written notice to Buyer of the occurrence of any such cause that will or may delay Seller’s performance. If delivery of any item is delayed by force majeure for more than three (3) months, Buyer may, without any additional extension, cancel all or part of any Purchase Order with respect to the delayed Product, and exercise any of its remedies in accordance with paragraph 3, provided, however, that Buyer will not be entitled to monetary damages or specific performance where Seller’s breach is the result of force majeure.
9. INTELLECTUAL PROPERTY INDEMNITY. Seller agrees to defend, indemnify, and hold harmless Buyer from any and all claims, demands, damages, losses, liabilities, fines, penalties, settlements, and expenses (including, without limitation, all legal fees and costs), resulting from a suit or proceeding from infringement of any patent, trademark, copyright or other proprietary right by reason of the sale or use of any Product, and from reasonable expenses incurred by Buyer in defense of such suit or proceeding to the extent Seller does not undertake the defense thereof; provided, that Seller is promptly notified of any such suit and Buyer offers Seller full and exclusive control of the defense of such suit or proceeding when Products only are involved therein or the right to participate in the defense of such suit or proceeding when products other than those of Seller are also involved therein; except that this indemnity shall not extend to infringement resulting solely from Seller’s compliance with Buyer’s detailed design drawings, processes or formulas. In the event of an injunction or restraining order, Seller will, at its own expense, either procure for Buyer the right to continue to sell and use the Product, or replace or modify the Product so that it becomes non-infringing. Seller will also indemnify Buyer’s customers and agents for such infringement if and to the extent that Buyer has agreed to so indemnify them, but to no greater extent than Seller has indemnified Buyer herein and under the same conditions as set forth herein.
10. TOOLING. Title to property furnished to Seller by Buyer or paid for by Buyer under the Agreement, including without limitation drawings, patterns, tools, dies and any other goods made in support of the Agreement, as well as any replacements thereof (all hereinafter referred to as “Property”) will be vested in Buyer with the right to demand possession at any time. Seller will physically identify and mark the Property as Buyer’s Property. Seller will use said Property only in the performance of work for Buyer. Seller will bear the risk of loss of all Property while in Seller’s custody or control and while in the custody or control of Seller’s suppliers. All Property is subject to removal and return at Buyer’s written request, in which event Seller, at Buyer’s expense, will prepare such Property for shipment and deliver them to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted. Seller will maintain all Property in good condition and repair or replace them to the extent necessary for performance of the Agreement. Buyer will have the right to enter Seller’s premises at all reasonable times to inspect Property and Seller’s records with respect thereto. Buyer does not warrant any aspect of the Property that it furnishes and all Products delivered by Seller must be in strict accordance with the requirements of this Agreement. Upon completion or termination of this Agreement, Seller will retain all Property at its expense until disposition directions are received from Buyer.
11. LIMITATION OF LIABILITY. Regardless of cause, fault or grounds: (a) in no event shall Buyer be liable for indirect, special, incidental or consequential damages of any kind, without limitation, punitive or economic damages or lost profits, regardless of whether Buyer has reason to know or in fat knew of the possibility of such damages; and (b) in no event shall Buyer’s total liability exceed the purchase price paid by Buyer for the specific Products giving rise to the claim under the applicable Purchase Order.
12. INDEMNIFICATION AND INSURANCE. Seller shall indemnify and hold Buyer, its directors, officers, employees, agents harmless from and against any and all claims, demands, damages, losses, liabilities, fines, penalties, settlements, and expenses (including, without limitation, all legal fees and costs) of any kind arising out of or related in any way with the performance of the Agreement, or Products provided thereunder, except to the extent solely resulting from intentional or willful misconduct of Buyer. Seller will maintain and carry liability insurance which includes but is not limited to commercial general liability (including product liability and for services to be performed, completed operations liability) in a sum no less than $2 million, automobile liability in a sum no less than $2 million, workmen’s compensation in an amount no less than the applicable statutory minimum requirement and employer’s liability in an amount of no less than $1 million, with internationally recognized insurance carriers. Seller will, if requested by Buyer, furnish certificates of insurance from its carrier(s) on the foregoing coverages, which will identify Buyer as an additional insured and provide that such coverage will not be changed without thirty (30) days advance written notification to Buyer from the carrier(s).
13. CONFIDENTIALITY. All non-public, confidential, or proprietary information of Buyer, including but not limited to trade secrets, intellectual property, business information, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, rebates, trade secrets, that is disclosed by or on behalf of Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” in connection with the Agreement is strictly confidential, is provided solely for the use of performing the Agreement, and may not be disclosed to any person, corporate division or entity, or copied, unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller will promptly return all documents and other materials received from Buyer. Buyer will be entitled to injunctive relief for any violation of this Paragraph, without having to post bond or establish the insufficiency of a remedy at law. This Paragraph does not apply to information that is: (a) in the public domain, through no fault of Seller, at or subsequent to the time such confidential information was disclosed to Seller by Buyer; (b) rightfully known by Seller free of any obligation of confidence at the time of disclosure to Seller by Buyer, as evidenced by written records; or (c) rightfully obtained by Seller from a third party without similar restriction from such party and the disclosure of which from such third party does not constitute a violation of an obligation by such third party to Buyer, each as evidenced by written records.
14. NO WAIVER. Failure of Buyer to enforce any of the terms, conditions and limitations of the Agreement shall not be construed as a waiver thereof or a waiver of any other terms, conditions or limitations therein, and the failure of Buyer to exercise any rights arising from default of Seller or otherwise shall not be deemed to be a waiver of such right or any other right. The Agreement may be enforced and the rights of Buyer may be enforced at any time in whole or in part.
15. ASSIGNMENT. Seller may not assign or delegate its obligations hereunder to any other person or entity without the written approval of Buyer. Buyer may assign this Agreement to one of Buyer’s subsidiaries or affiliates or in connection with the sale or transfer of all or substantially all of the assets of the business to which it pertains.
16. DISPUTE RESOLUTION. Disputes between Buyer and Seller regarding these Terms or any Purchase Order shall be resolved: (a) by arbitration in Minneapolis, Minnesota, pursuant to the arbitration rules of the American Arbitration Association; and (b) in accordance with Minnesota law excluding conflict of law principles. The award rendered by the arbitrators shall be final and non-appealable and may be entered in accordance with applicable law in any court having jurisdiction thereof. The parties irrevocably consent to such jurisdiction. Buyer and Seller waive any rights they have to a trial by jury in any disputes which arise from these Terms or any Purchase Order. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THESE TERMS OR THE SALES DOCUMENTS AND IS HEREBY EXPRESSLY DISCLAIMED BY BUYER AND SELLER.
17. TRADE COMPLIANCE. Buyer shall have the option of being the Importer of Record. In such case, Seller shall furnish promptly all information and documents required for customs drawback purposes. Seller also shall provide all information necessary (including written documentation and electronic transaction records) relating to the Products, tooling and equipment necessary for Buyer to fulfill any customs-related or other governmental agency-related obligations, origin marking or labeling requirements and certification or local content reporting requirements, to enable Buyer to claim preferential duty treatment at the time of entry for Products, tooling and equipment eligible under applicable trade preference regimes, and to make all arrangements that are necessary for the Products to be covered by any applicable duty deferral or free trade zone program(s) of the country of import. Seller shall provide Buyer with all documentation to enable the Products to be exported, and obtain all export licenses or authorizations necessary for the export of the Products, tooling and equipment, in which event Seller shall provide all information as may be necessary to enable Buyer to obtain such licenses or authorization(s). Credits or benefits resulting or arising from any Purchase Order, including trade credits, export credits or the refund of duties, taxes or fees, shall belong to Buyer. Seller shall submit a Certificate of Origin. One document can be completed for a series of part numbers as long as each part is listed with the country of origin—where the Products are manufactured, NOT purchased—listed beside it. Also, if the Product(s) qualify for USMCA, this will be indicated on the certificate as well.
18. COMPLIANCE WITH LAWS. Seller shall fully comply with all applicable laws and regulations, including, without limitation, Federal, state and local laws and regulations, export and import laws and regulations, applicable data protection laws and regulations, the U.S. Foreign Corrupt Practices Act and similar anti bribery laws, the Occupational Safety and Health Act of 1970 as amended, the Fair Labor Standards Act of 1938 as amended, the Clean Air Act as amended, and the Anti Kickback Act of 1986 as amended. Seller also will comply with all restricted material requirements imposed upon Buyer, its products and/or its customers, and with which Seller must be familiar to ensure ultimate compliance. Seller agrees to provide Buyer, within five (5) business days of Buyer’s request, written certification stating the extent of Seller’s compliance with the above, including applicable laws or regulations newly coming into effect during the performance of the order.
19. NO PUBLICITY. Seller will not advertise, publish, or disclose to third parties (other than to Seller’s professional advisors on a need-to-know-basis) in any manner the fact that Seller has contracted to furnish Buyer the Products covered by any Purchase Order or the terms of any Purchase Order, or use any trademark or trade names of Buyer in any press release, advertising or promotional materials, without first obtaining Buyer’s written consent.
20. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise relationship between the parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever. Seller will be solely responsible for all employment and income taxes, insurance premiums, charges and other expenses it incurs in connection with its performance of the Agreement, except as expressly provided in a written agreement signed by Buyer.
21. SEVERABILITY. If any of the provisions of the Agreement are found to be invalid or unenforceable under applicable state or federal law, such invalidity shall not invalidate the Agreement; instead the Agreement shall be construed as if not containing the particular provision or provisions held to be invalid and the rights and obligations of the parties shall be construed and enforced accordingly.
22. SURVIVAL. The obligations of Seller to Buyer shall survive termination of the Agreement, except as otherwise provided in the Purchase Order.