TERMS AND CONDITIONS OF SALE

1. EXCLUSIVE TERMS, CONDITIONS AND LIMITATIONS OF OFFER. These terms and conditions (“Terms”) govern the sale of goods and/or services (“Products”) by Conductive Containers, Inc. or one of its affiliates identified on the accompanying quotation, proposal, order acknowledgement, or invoice (the “Sales Document”), (hereinafter referred to as “Seller”) to the buyer (“Buyer”) identified therein. These Terms and the Sales Document 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. Buyer accepts these Terms by signing and returning Seller’s quotation, by sending a purchase order in response to the quotation, by submitting instructions to Seller to ship the Product or by accepting or paying for the Product. No additional or different terms or conditions, in any way purporting to modify these Terms, whether contained in Buyer’s purchase order or elsewhere, shall be binding on Seller unless hereafter made in writing, signed by Seller’s authorized representative, and specifically referencing these Terms and stating that it modifies them. Buyer is hereby notified of Seller’s express rejection of any terms inconsistent with these Terms or to any other terms proposed by Buyer. Neither Seller’s subsequent lack of objection to any terms, nor the delivery of the Products, shall constitute an agreement by Seller 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 Trade custom, trade usage and past performance are superseded by these Terms and shall not be used to interpret these Terms.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. ORDERS. Buyer may place orders by issuing purchase orders (“Purchase Orders”). All Purchase Orders are subject to acceptance by Seller. Accepted orders may not be cancelled or changed by Buyer without Seller’s prior written consent. Any permitted changes or cancellations may be subject to additional charges or terms as determined by Seller in its sole discretion. Following acceptance of a Purchase Order, Seller will notify the Buyer of the planned delivery date. Seller shall use reasonable efforts to meet the specified dates; however, all such dates are estimates only. If a Product is in stock and available, Seller reserves the right to ship Product in advance of the requested delivery date. Seller reserves the right to cancel any sale hereunder prior to delivery in Seller’s sole discretion without liability to Buyer (except for refund of monies already paid).
3. PRICING. Unless otherwise provided in the Agreement, prices shall be as quoted by Seller, and such quoted prices are subject to change by Seller without notice. Prices do not include shipping charges, handling fees, taxes, tariffs and/or duties, for which Buyer shall be responsible and Buyer agrees to pay. If Buyer claims exemption from taxes or duties, Buyer is responsible for providing Seller with the necessary documentation at the time of purchase; if Buyer does not provide such documentation, taxes will be added to Buyer’s order or separately invoiced to Buyer. In the event Seller is required to pay any such taxes or other charges, Buyer shall reimburse Seller therefor on demand. If any exemption certificate presented by Buyer is held to be invalid, then Buyer will immediately pay Seller the amount of the tax and any penalties and interest related thereto. All payment must be made without deductions, set offs, counterclaims, backcharges or any other charges.
4. TERMS OF PAYMENT. All payments shall be made in U.S. Dollars. Payment terms are as set forth on the Sales Document. In the absence of such provisions in the Sales Document, payment terms shall be net thirty (30) days from the date of invoice. Amounts unpaid after the payment term shall accrue interest compounded monthly at the annual rate of 1.5% or the maximum legal rate, if less. Buyer hereby grants to Seller a security interest in all Products subject to the Agreement until the complete purchase price is paid by Buyer. Payment terms are subject to approval by Seller’s Credit Department.
5. DELIVERY, TITLE AND RISK OF LOSS. All deliveries shall be Ex Works (Incoterms 2020) Seller’s point of shipment, using Seller’s standard methods for packaging and shipping. Freight shall be paid by Buyer to ultimate points of destination. Seller is not liable for any delays, loss or damage in transit. Seller shall not be liable for any non-delivery of Products unless Buyer notifies Seller of the non-delivery within five (5) days following the date that Buyer would, in the ordinary course of business, have received the Products. At Seller’s sole discretion, liability for non-delivery shall be limited to replacing the Products within a reasonable time or a credit or refund for the price of the Products. Title and risk of loss shall pass to Buyer upon Seller’s delivery to carrier or upon tender to Buyer’s agent, whichever occurs first. Buyer shall be responsible for filing and pursuing claims with carriers for loss or damage in transit. The standard shipping tolerances are +/- ten percent (10%) unless otherwise specified on the Sale Document.
6. STORAGE FEES. Unless otherwise provided in the Sales Document, all orders are for run and ship. Blanket orders are subject to a storage and service charge, and must be quoted as such.
7. INSPECTION; REJECTION OF PRODUCT. Buyer shall have thirty (30) days from the date of delivery of Product to inspect the Product (“Inspection Period”). The Products will be deemed accepted at the end of the Inspection Period unless Buyer notifies Seller in writing of any nonconforming Products and furnishes Seller with written evidence or other documentation reasonably required by Seller. Upon notification of any nonconforming Products during the Inspection Period, Seller will, in its sole discretion, either (a) replace the nonconforming Products with conforming Products, or (b) credit or refund the price for the nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer. At Seller’s request and direction, Buyer will return the nonconforming Products at Seller’s expense or dispose of the nonconforming Products in a manner approved by Seller. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies and Seller’s sole liability for the delivery of nonconforming Products, and except as set forth in this Section (or in Section 8), Buyer has no right to return the Products to Seller without Seller’s written authorization.
8. RETURNS. Buyer may only return stock Products within thirty (30) days of the delivery date. All returns must be approved by Seller customer service and assigned a RMA number before they will be accepted by Seller. Buyer is responsible for all return freight charges. Seller accepts no responsibility for any loss or damage to Products in transit from Buyer to Seller. All returns are subject to a 15% restocking fee. Custom orders are not returnable.
9. LIMITED WARRANTY. Unless otherwise specified by Seller in a separate written product warranty accompanying the Products, Seller warrants to Buyer that Products will at the time of delivery be free from defects in material and workmanship. If the Products are defective and Buyer informs Seller in writing of such nonconformance within ninety (90) days of delivery, Seller will, in its sole discretion, either (i) repair or replace the defective Products, or (ii) refund the amount that Buyer paid for such defective Products at time of original purchase. Repair or replacement may be made with new or refurbished Products (at Seller’s option) or, if Seller no longer sells the applicable Products, with a similar Products of like function. Seller will not be liable for any injury, loss or damage, direct or consequential, arising out of the use, or the inability to use, the Products. Before using, Buyer shall determine the suitability of the Product for the intended use, and Buyer shall assume risk and liability in connection therewith. THE AFORESAID LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR A PARTICULAR PURPOSE. The foregoing constitutes a final expression by Seller of its Limited Warranty. Such Limited Warranty cannot be modified or supplemented except in writing by Seller signed by an authorized officer of Seller.
10. FORCE MAJEURE. Seller shall not be liable for loss or damage resulting from delay or failure of delivery or performance when and to the extent such delay or failure is attributable to strikes, differences with workmen, lockouts, or any labor shortages or difficulties, to fires, floods, accidents, quarantine restrictions, earthquakes, tornados, epidemics or other casualties or acts of God, to wars, riots, civil disobedience or other emergency or acts of civil or military authorities, to compliance with orders, priorities or requests of any governmental agencies, to embargoes, failure of suppliers of Seller to meet delivery schedules or any shortage of raw materials howsoever caused, to inability or delay in obtaining labor or materials, to inability or delay in obtaining cars, trucks, fuel or machinery necessary for transportation, or to a cause, condition or contingency beyond the reasonable control of Seller, whether similar to those enumerated or not. In the event of any of the foregoing, Seller may apportion its production and all stock material among its customers in such manner as it may consider equitable and extend the time of performance by the period of such delay.
11. INTELLECTUAL PROPERTY. Buyer acknowledges Seller and its affiliates are the owners or licensors of brands, trademarks, designs, patents, copyrights and other intellectual property relating to Seller’s Products, and that no right or license is conveyed by Seller to Buyer to manufacture, have manufactured, modify, import or copy such Products. Buyer agrees that it will reference brands of Seller or its affiliates only in connection with the use or sale of Products delivered to Buyer hereunder, and not in connection with the sale of any other Product, except as separately authorized by Seller in writing. There is no warranty that the use of any Products may not infringe patent rights of others. If any Products sold hereunder are to be prepared or manufactured according to Buyer’s specifications or design, Buyer shall indemnify and save harmless Seller against any claims or liability for violation of any intellectual property rights, including patent, trade secret or trademark rights, owned or controlled by third parties in the United States or in any other country on account of such preparation or manufacture.
12. TOOLING. Seller shall use commercially reasonable efforts to handle and store carefully while in its possession any tooling owned or furnished by Buyer (including any dies, molds, or jigs). Seller reserves the right to discard, without notice or liability to Buyer, the tooling described herein, if no orders have been received requiring the use of such tooling for three (3) consecutive years.
13. LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF INCOME, PROFITS OR PRODUCTION; ANY REPROCUREMENT COSTS; INCREASES IN THE COST OF OPERATIONS; OR DAMAGES TO MATERIAL, ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THE AGREEMENT, AND REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, OR (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND REGARDLESS OF THE CLAIM OR CAUSE OF ACTION, INCLUDING, WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL THE LIABILITY OF SELLER EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
14. INDEMNIFICATION. Buyer shall indemnify and hold Seller harmless from and against any and all claims, demands, fines, penalties, settlements, suits, losses, and expenses (including, without limitation, all legal fees and costs) of any kind including but not limited to (a) any third party claim of infringement of any patent, trademark or other intellectual property right arising out of or in connection with Seller’s use of specifications provided to Seller by Buyer, (b) death or personal injury or damage or destruction of any property arising out of or relating to any negligent use of Products, (c) negligent or improper repairs, modifications or service of any Products, including service or repair inconsistent with any applicable manual, bulletin or directive; or (d) Buyer’s failure to comply with any law applicable to the Agreement or the performance of Buyer’s obligations hereunder.
15. CONFIDENTIALITY. All non-public, confidential, or proprietary information of Seller, 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 Seller to Buyer, 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 Seller in writing. Upon Seller’s request, Buyer will promptly return all documents and other materials received from Seller. Seller 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 Buyer, at or subsequent to the time such confidential information was disclosed to Buyer by Seller; (b) rightfully known by Buyer free of any obligation of confidence at the time of disclosure to Buyer by Seller, as evidenced by written records; or (c) rightfully obtained by Buyer 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 Seller, each as evidenced by written records.
16. NO WAIVER. Failure of Seller to enforce any of the terms, conditions and limitations herein shall not be construed as a waiver thereof or a waiver of any other terms, conditions or limitations herein, and the failure of Seller to exercise any rights arising from default of Buyer or otherwise shall not be deemed to be a waiver of such right or any other right. These Terms may be enforced and the rights of Seller may be enforced at any time in whole or in part.
17. ASSIGNMENT. Buyer may not assign its obligations hereunder to any other person or entity without the written approval of Seller.
18. DISPUTE RESOLUTION. Disputes between Buyer and Seller regarding these Terms or any Sales Document 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. 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.
19. TRADE COMPLIANCE. Buyer acknowledges that the Products and the purchase of Products may be subject to various customs, import and export control laws and regulations of the United States and other countries, including without limitation the International Traffic in Arms Regulations (“ITAR”) (22 C.F.R. parts 120-130) and the Export Administration Regulations (“EAR”) (15 C.F.R. parts 730-774). Buyer represents and warrants that it will comply with all applicable customs, import and export control laws and regulations (including without limitation the ITAR and the EAR) in connection with the Products and the purchase of the Products, and that it will not export or reexport or otherwise transfer the Products or technical data related thereto except in conformity with all applicable laws and regulations including those of the United States (including, without limitation, the ITAR and the EAR), the country of export and the country of origin of the Products.
20. GOVERNMENT CONTRACTS. Buyer must inform Seller in writing if Buyer’s purchases hereunder are for a government contract.
21. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in these Terms 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. No course of dealing shall bind either of the parties hereto.
22. SEVERABILITY. If any of the provisions of these Terms are found to be invalid or unenforceable under applicable state or federal law, such invalidity shall not invalidate these Terms; instead these Terms 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.
23. SURVIVAL. Termination of expiration of the Agreement or any Sales Document or purchase order for any reason shall not release either party from any liability or obligations: (a) that the parties have expressly agreed shall survive such termination or expiration; (b) which remain to be performed; or (c) by their nature would be intended to survive and be applicable following any such termination or expiration.