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 Trade custom, trade usage and past performance are superseded by these Terms and shall not be used to interpret these Terms.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. FIRST ARTICLE APPROVAL. If prior to full production Seller delivers a first article product to Buyer for approval, Buyer must either (i) provide written approval, or (ii) request design changes for such first article product. If Buyer fails to respond within thirty (30) days of delivery of the first article product, Seller may cancel the Purchase Order and invoice Buyer (and Buyer shall pay) all applicable cancellation fees. This provision applies equally to any subsequent or revised first article shipments.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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 9), Buyer has no right to return the Products to Seller without Seller’s written authorization.
9. 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.
10. 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 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.
11. 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, labor shortages, fires, floods, accidents, earthquakes, epidemics, wars, riots, governmental actions, supplier failures, transportation delays, shortages of raw materials, or other causes beyond the reasonable control of Seller. Seller may apportion production among customers as it deems equitable and extend performance time for the duration of such delay.
12. 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 Seller brands only in connection with Products purchased hereunder unless otherwise authorized in writing. Buyer shall indemnify Seller against claims of intellectual property infringement arising from Products manufactured according to Buyer’s specifications.
13. TOOLING. Seller shall use commercially reasonable efforts to handle and store tooling owned or furnished by Buyer. Seller reserves the right to discard tooling if no orders requiring its use are received for three (3) consecutive years.
14. LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING LOSS OF PROFITS OR PRODUCTION. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
15. INDEMNIFICATION. Buyer shall indemnify and hold Seller harmless from claims, damages, losses and expenses arising from intellectual property claims based on Buyer specifications, improper use of Products, negligent repairs or modifications, or Buyer’s failure to comply with applicable laws.
16. CONFIDENTIALITY. All non-public confidential information disclosed by Seller to Buyer in connection with the Agreement shall remain confidential and may not be disclosed without Seller’s written authorization. Buyer must return such information upon request. Exceptions apply to information already public, previously known by Buyer, or lawfully obtained from a third party.
17. NO WAIVER. Failure by Seller to enforce any provision shall not constitute a waiver of that provision or any other rights.
18. ASSIGNMENT. Buyer may not assign its obligations without Seller’s prior written approval.
19. DISPUTE RESOLUTION. Disputes shall be resolved by arbitration in Minneapolis, Minnesota under the rules of the American Arbitration Association and governed by Minnesota law. The UN Convention on Contracts for the International Sale of Goods does not apply.
20. TRADE COMPLIANCE. Buyer must comply with all applicable customs, import and export control laws including ITAR and EAR regulations and may not export Products or related technical data except in compliance with such laws.
21. GOVERNMENT CONTRACTS. Buyer must notify Seller in writing if purchases are for a government contract.
22. RELATIONSHIP OF THE PARTIES. The parties are independent contractors and nothing creates an agency, partnership or joint venture.
23. SEVERABILITY. If any provision is found invalid or unenforceable, the remaining provisions shall remain in effect.
24. SURVIVAL. Termination or expiration of the Agreement does not release either party from obligations that by nature should survive termination.