Except as otherwise agreed by Creganna Unlimited Company, a TE Connectivity Ltd. Company, or its affiliates and/or subsidiaries ("Seller") in writing, the following terms and conditions ("Agreement") will apply to all orders received, and all sales made, by Seller. GENERAL: The terms and conditions set forth l. herein as well as any terms and conditions printed on the face of Seller's quote and/or order acknowledgment constitute the sole and entire agreement between Seller and the buyer ("Buyer") of goods and/or services from Seller with respect to the subject matter hereof. Any term or condition in any printed form of Buyer, including but not limited to any order, confirmation or other document, which is in any way inconsistent with or in addition to the terms and conditions hereof is hereby expressly rejected, and Seller's acceptance of any offer or order of Buyer is hereby expressly made in reliance on Buyer's assent to all terms and conditions hereof. If Buyer objects to any of the terms or conditions hereof, such objection must be made in writing and received by Seller within ten (10) calendar days after placing a purchase order. Failure to so object shall be conclusively deemed to be acceptance of the terms and conditions hereof. Seller's failure to object to any term or condition in any oral or written communication from Buyer, whether delivered before or after the date hereof, shall not constitute an acceptance thereof or a waiver of any term or condition hereof. Electronic commerce transactions between Buyer and Seller will be solely governed by this Agreement, and any terms and conditions on Buyer's internet site will be null and void and of no legal effect on Seller. All correspondence pertaining to this order, or to any of the terms and conditions covered by this order, will be in the English language. Goods are provided pursuant to Seller's part numbers. TAXES: Except as otherwise expressly stated 2. herein, the prices do not include federal, state or local sales, use, goods and services, excise or other similar taxes applicable to goods or services involved in this transaction. All such taxes shall be paid by Buyer, unless Buyer provides Seller with evidence satisfactory to Seller of exemption from such taxes. When Seller is required by law or regulation to collect such taxes, Seller will add such taxes to the sale price of the goods or services. 3. PRICES: The sale price(s) for goods delivered hereunder ("Products") are accepted as stated on Seller's order acknowledgment and will include the cost of Seller's usual factory tests and inspections. The prices set forth herein are not subject to trade or other discounts. All quotations of Seller expire thirty (30) calendar days from the date given. The price to Buyer for any Products shall be the applicable published price or valid quote in effect at the time of order entry. All prices are subject to change without notice and may be subject to any increase which may be in effect on the date of shipment. Except as otherwise expressly stated herein, any service calls or other service work performed by Seller shall be at Buyer's expense in accordance with Seller's standard rates for such services. Buyer acknowledges that the pricing of the Products and services and the other terms of this Agreement have been set based on the sections of this Agreement providing for an agreed allocation of the risk for any defective Products or services between the parties. Buyer further acknowledges that the pricing and terms would have been different if there had been a different allocation of the risk.
4.
INSURANCE:
DELIVERY, TITLE PASSAGE AND
Delivery. Delivery or shipping dates are (a) approximate only and merely represent Seller's best estimate of the time required to make delivery or shipment. Time is not of the essence with respect to the transaction(s) covered by this Agreement, except with respect to Buyer's obligation to make all related payments. Seller's obligations hereunder will be dependent upon Seller's ability to obtain the necessary raw materials. Seller will not be liable for any loss or expense (incidental, indirect, economic, consequential or otherwise) incurred by Buyer as a result of any delay in delivery for any reason other than arbitrary refusal by Seller to perform. Seller reserves the right to make partial deliveries and ship approximately forty (40) calendar days in advance of shipping date. Lead time on orders and rescheduling are governed at Seller's discretion. (b) Title Passage for Sales. Except as otherwise expressly stated herein, all deliveries hereunder will be FCA Seller's plant via a carrier selected by Buyer at its option, or otherwise by Seller, freight collect, to Buyer and will be packed in Seller's standard commercial shipping packages. In all such cases title and risk of loss or damage will pass to Buyer upon Seller's delivery of the Products to the carrier for shipment to Buyer and no loss or damage will relieve Buyer of any obligation hereunder, including payment for lost or damaged Products. Charges for shipping may not reflect net transportation costs paid by Seller. Buyer shall reimburse Seller for any and all costs of storage incurred by Seller after the date that Seller is prepared to make shipment. Insurance. Buyer will pay, or reimburse Seller (c) for, all insurance on the Products. Any insurance proceeds collected by Buyer for Seller's account will be promptly remitted to Seller in U.S. Dollars. Any insurance policies purchased, whether by Buyer or Seller, will be for the benefit of Seller, whether or not Seller is named as an insured in such policies, until title and risk of loss or damage to the Products pass to Buyer. Where possible, all insurance policies will provide that they are for the benefit of Seller and Buyer "as their interests may appear." BUYER'S FINANCIAL CONDITION: This 5. Agreement and all shipments made hereunder shall at all times be subject to the approval by Seller of Buyer's financial condition. If the financial condition of Buyer at any time becomes unsatisfactory to Seller, in Seller's sole discretion, or if Buyer fails to make any payment when due, in addition to any other rights Seller may have, Seller may defer or decline to make any shipment or shipments hereunder or may condition any such shipment upon receipt of satisfactory security or cash payments in advance. PAYMENT TERMS: Except as otherwise 6. expressly stated herein, Seller shall invoice Buyer at the time of shipment of each instalment on payment terms of cash in advance, except where open account credit is established and maintained to Seller's satisfaction, in which case payment terms shall be net thirty (30) calendar days from date of shipment. All payments shall be in U.S. Dollars. Buyer shall make all payments as provided herein without regard to whether Buyer has made or may make any inspection or use of any Products. No discounts or setoffs shall be made by Buyer against any invoices unless approved in advance by Seller. Any invoiced amount which is not paid when due may bear interest at the rate of one and one-half percent (1-1/2%) per month or the highest rate then permitted by law, whichever is less, until paid in full. Seller reserves the right to exercise any of its lawful remedies if Buyer does not make payments when due. Buyer shall promptly reimburse Seller for all costs and expenses, including reasonable attorneys' fees, incurred by Seller in collecting sums due it hereunder. SECURITY INTEREST: Buyer hereby grants 7. to Seller a security interest in all Products and all proceeds and products thereof until all amounts due or to become due hereunder have been paid. Any repossession and removal of Products shall be without prejudice to any of Seller's other remedies at law or in equity. Buyer agrees, at any time and without further consideration, to do or cause to be done, executed and delivered, all such further acts and instruments (including without limitation financing statements appropriate for filing) as Seller may reasonably request in order to perfect Seller's security interest. FORCE MAJEURE: Seller shall not be liable 8. for delay in performance or non-performance of any of its obligations hereunder, in whole or in part, if such performance is rendered impracticable by the occurrence of any contingency or condition beyond the control of either Seller or Seller's suppliers, including without limitation war, sabotage, embargo, riot, terrorism, or other civil commotion, failure or delay in transportation, act of any government or any court or administrative agency thereof (whether or not such action proves to be invalid), labor dispute (whether or not involving Seller's employees), accident, fire, explosion, flood, earthquake or other casualty, shortage of labor, fuel, energy, raw materials or machinery or technical failure. If any such contingency or condition occurs, Seller may allocate production and deliveries in any reasonable manner and may include in such allocation any regular customers, whether or not then under contract, and Seller's own requirements. If, as a result of any such contingency, Seller's performance is delayed by more than six (6) months, the prices set forth herein shall be subject to appropriate adjustment by Seller.
LIMITED WARRANTY; SUITABILITY
9.
a) Except as otherwise stated herein or in an order acknowledgment delivered to Buyer, Seller warrants to Buyer that the Products (1) shall be free of defects in materials and workmanship for a period of twelve (12) months from date of shipment to Buyer (the "Warranty Period"); and (2) shall be free of liens and encumbrances when shipped to Buyer. If Seller agrees in writing to provide and does provide system design, drawings, technical advice, or any other services to Buyer in connection with Products, then Seller further warrants to Buyer during the Warranty Period that such services shall be undertaken in accordance with Seller's reasonable technical judgment based on Seller's understanding of pertinent technical data as of the date of performance of such services. Seller's warranties will not apply to any Product with respect to which there has been (i) improper installation or testing, (ii) failure to provide a suitable operating environment, (iii) use of the Product for purposes other than that for which it was designed, (iv) failure to monitor or operate the Product in accordance with applicable Seller specifications and good industry practice, (v) unauthorized attachment or removal or alteration of any part of the Product, (vi) unusual mechanical, physical or electrical stress, (vii) modifications or repairs done by other than Seller, (viii) mishandling during shipment of the Product; or (ix)any other abuse, misuse, neglect or accident. In no circumstance shall Seller have any liability or obligation with respect to expenses, liabilities or losses associated with the installation or removal of any Product or the installation or removal of any components for inspection, testing or redesign occasioned by any defect or by repair or replacement of a Product. Application Equipment, spare parts and hand tools ordered or supplied hereunder may contain used parts and/or be reconditioned. Buyer shall notify Seller in writing promptly (b) (and in no case later than thirty (30) calendar days after discovery) of the failure of any Product to conform to the warranty set forth above, shall describe in commercially reasonable detail in such notice the symptoms associated with such failure, and shall provide to Seller the opportunity to inspect such Products as installed, if possible. The notice must be received by Seller during the Warranty Period for such Product. Unless otherwise directed in writing by Seller, within thirty (30) calendar days after submitting such notice, Buyer shall package the allegedly defective Product in its original shipping carton(s) or a functional equivalent and shall ship it to Seller. Within a reasonable time after receipt of the (c) allegedly defective Products and verification by Seller that the Products fail to meet the warranty set forth above, Seller shall correct such failure by, at Seller's option, either (i) modifying or repairing the Products or (ii) replacing the Products. Such modification, repair or replacement and the return shipment of the Products with minimum insurance to Buyer shall be at Seller's expense. Buyer shall bear the risk of loss or damage in transit, and may insure the Products. Buyer shall reimburse Seller for transportation costs incurred for Products returned but found by Seller not to be defective. Modification or repair of Products may, at Seller's option, take place either at Seller's facilities or at Buyer's premises. If Seller is unable to modify, repair or replace Products to conform to the warranty set forth above, then Seller shall, at Seller's option, either refund to Buyer or credit to Buyer's account the purchase price of the Products less depreciation calculated on a straight-line basis over Seller's stated Warranty Period. THESE REMEDIES SHALL BE BUYER'S EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. EXCEPT FOR THE EXPRESS WARRANTY (d) SET FORTH ABOVE, SELLER MAKES NO OTHER REPRESENTATIONS, OR WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE PRODUCTS, THEIR FITNESS FOR ANY PURPOSE, THEIR QUALITY, THEIR MERCHANTABILITY, THEIR NONINFRINGEMENT, OR OTHERWISE. NO EMPLOYEE OF SELLER OR ANY OTHER PARTY IS AUTHORIZED TO MAKE ANY OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS FOR THE GOODS OTHER THAN THE WARRANTY SET FORTH HEREIN. SELLER'S LIABILITY UNDER THE WARRANTY SHALL BE LIMITED TO A REFUND OF THE PURCHASE PRICE OF THE PRODUCT. IN NO EVENT SHALL SELLER BE LIABLE FOR THE COST OF PROCUREMENT OR INSTALLATION OF SUBSTITUTE GOODS BY BUYER OR FOR ANY SPECIAL, PUNITIVE, CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, OR CLAIMS OF ANY THIRD PARTIES. (e) Buyer assumes the risk and agrees to indemnify Seller against and hold Seller harmless from all liability relating to (i) assessing the suitability for Buyer's intended use of the Products and of any system design or drawing and (ii) determining the compliance of Buyer's use of the Products with applicable laws, regulations, codes and standards. Buyer retains and accepts full responsibility for all warranty and other claims relating to, or arising from, Buyer's products which include or incorporate Products or components manufactured or supplied by Seller. Buyer is solely responsible for any and all representations and warranties regarding the products made or authorized by Buyer. Buyer will indemnify Seller and hold Seller harmless from any liability, claims, loss, cost or expenses (including reasonable legal fees) attributable to Buyer's products or representations or warranties concerning same. 10. LIMITATION OF LIABILITY AND INDEMNITY: NOTWITHSTANDING ANY OTHER PROVISION HEREIN OR IN ANY OTHER DOCUMENT OR COMMUNICATION, (A) SELLER'S LIABILITY AND OBLIGATIONS WITH RESPECT TO ANY CLAIM(S) RESULTING OR ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE, AND EVEN IF BUYER'S EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, SHALL IN NO EVENT EXCEED IN THE AGGREGATE THE TOTAL PURCHASE PRICE RECEIVED BY SELLER FOR THE PRODUCTS (OR, IN THE CASE OF OBLIGATIONS ARISING FROM OR RELATING TO PARTICULAR PRODUCTS OR SERVICES RENDERED IN CONNECTION HEREWITH, THE PURCHASE PRICE OF SUCH PRODUCTS OR AMOUNT RECEIVED BY SELLER FOR SUCH SERVICES, RESPECTIVELY), AND (B) SELLER SHALL IN NO EVENT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE, FOR SPECIAL, PUNITIVE, CONSEQUENTIAL INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, OR CLAIMS OF ANY THIRD PARTIES. By accepting delivery of the Products ordered, Buyer agrees that it indemnifies and holds harmless Seller from and against all claims, loss, damage and liability, including without limitation for personal injury, property damage or commercial loss of whatever kind, directly or indirectly arising from or relating to the hazards inherent in Buyer's facilities or activities. 11. MEDICAL APPLICATIONS: In connection with any anticipated use of Products by Buyer in medical applications, unless otherwise confirmed in a written agreement executed by duly authorized representatives of Seller, Buyer acknowledges and agrees that: Seller's Products are manufactured under (a) normal industrial conditions, which may not satisfy the requirements applicable to products manufactured for certain medical applications. It is the sole responsibility of persons contemplating medical uses of Seller's Products to comply with all applicable laws, regulations, codes and standards, including but not limited to the U.S. Federal Food, Drug and Cosmetic Act and regulations of the Food and Drug Administration. Seller's Products have not been designed, manufactured, tested or qualified for use in certain medical applications (including life support systems) and Seller has not sought or received any rulings from the FDA or any other federal, state, or local government agency as to the safety, effectiveness or appropriateness of its Products for such applications. Persons intending to evaluate or to use Seller's Products for medical purposes must rely on their own medical and legal judgment without any representation on Seller's part. (b) Buyer will indemnify, defend, and hold harmless Seller and its officers, directors, employees, agents, and contractors from and against any and all losses, claims, damages, liabilities, and expenses (including reasonable attorneys' fees) arising out of or based upon any bodily injury or property damage arising from Buyer's incorporation of Products as part of any product made by Buyer for medical applications, including without limitation cardiac pacemakers, defibrillators, electrodes, leads, programmers, and catheters, and components therefor. Seller shall give Buyer written notice of any such claim and shall cooperate in the defense of such claim at Buyer's expense. 12. ACCEPTANCE; RETURNS: Buyer shall inspect Products promptly upon their receipt. Unless Buyer notifies Seller in writing within thirty (30) calendar days after the receipt of Products or the rendering of services that the Products or services are nonconforming, describing the nonconformity in commercially reasonable detail, Buyer shall be deemed to have accepted the Products or services. Acceptance as aforesaid shall constitute acknowledgment of full performance by Seller of all its obligations hereunder. No Products delivered and accepted under this Agreement are subject to returns except upon (a) written approval of Seller and (b) payment of a fair and equitable restocking charge as determined by Seller's restocking charge policy at the time of return. 13. PATENTS: Seller agrees to settle or defend any suit or proceeding brought against Buyer insofar as such suit or proceeding is based on a claim that any Product constitutes direct infringement of any issued United States patent. Seller shall pay all damages and costs finally awarded therein against Buyer, provided Seller is informed by Buyer in writing within ten (10) calendar days after receipt by Buyer and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given all authority (including the right to exclusive control of the defense of any suit or proceeding), information and assistance necessary to settle or defend such suit or proceeding. In the event such Product or any part thereof is, in such suit, held to constitute infringement and the use of such Product or part thereof is enjoined, Seller shall, by its own election and at its own expense, either (a) procure for Buyer the right to continue using such Product, or modify it so that it becomes non-infringing, or (b) remove such Product, or part thereof, and grant Buyer a credit thereon and accept its return. Seller shall not be obligated to settle or defend any suit or proceeding, or be liable for any costs or damages, if the Buyer is in breach of any term herein or the alleged infringement arises out of compliance with Buyer's specifications or any addition to or modification of the Product after delivery thereof or from use of the Product or any part thereof in conjunction with other goods or in the practice of a process. Seller's obligations hereunder shall not apply to any alleged infringement occurring after Buyer has received notice of such alleged infringement unless Seller thereafter gives Buyer express written consent for such continuing alleged infringement. Seller shall not be bound in any manner by any settlement hereunder made without its prior express written consent, NOR SHALL SELLER BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF PATENT INFRINGEMENT. Seller's liability hereunder shall not exceed the purchase price paid by Buyer for the allegedly infringing Product. If infringement is alleged prior to completion of delivery of a Product, Seller may decline to make further shipments without being in breach of this Agreement. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF SELLER FOR PATENT INFRINGEMENT AND IS IN LIEU OF ANY AND ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS EXPRESS OR IMPLIED, IN REGARD THERETO. Buyer agrees, at its expense, to settle or defend and to pay costs and damages finally awarded in any suit or proceeding against Seller based on an allegation that any Product furnished hereunder according to designs or specifications furnished by Buyer infringes any patent, provided Buyer is promptly notified in writing of such suit or proceeding and is given all authority (including the right to exclusive control of the defense of any suit or proceeding), information and assistance necessary to defend or settle any such suit or proceeding. 14. PROPERTY FURNISHED BY BUYER: If Buyer furnishes any components, tools, dies, jigs or other property, equipment, material, or facilities to Seller in connection with the performance of this Agreement, Buyer shall bear all risk of loss or damage with respect to such property, equipment, material, or facilities and shall indemnify and hold Seller harmless from and against all loss, cost, expense or liability arising in connection with its use of any such property, equipment, material, or facilities. Seller shall not be responsible for any delay in performance or non-performance hereunder or the failure of any Product to conform to applicable specifications resulting, in whole or in part, from Seller's use of property, equipment, material, or facilities furnished by Buyer. PROPRIETARY INFORMATION: As used 15. herein, the term "Proprietary Information" includes any information, material or apparatus, of a confidential or proprietary nature obtained from Seller and any information obtained from Seller which is not readily available to Seller's competitors and which, if known by a competitor of Seller, might lessen any competitive advantage of Seller or give such competitor a competitive advantage. Seller retains ownership of all Proprietary Information, whether written, oral, electronic, visual, graphic, photographic, observational or otherwise, and all documentation which contains Proprietary Information. Buyer shall not disclose, duplicate or reproduce any Proprietary Information, in whole or in part, nor shall Buyer use any Proprietary Information other than in the course of performing its obligations hereunder. Buyer shall take all reasonable steps to prevent the disclosure, 4
duplication or reproduction of any Proprietary Information. Buyer shall limit access to the Proprietary Information to those employees of Buyer with a valid need to know. Notwithstanding the foregoing, Buyer shall not be required to refrain from disclosing or using any Proprietary Information which has become known to Buyer if the original source of such Proprietary Information was not Seller or any person or party affiliated with Seller or having a relationship of confidentiality with or an obligation of confidentiality to Seller. Upon request of Seller or termination of this Agreement, Buyer shall immediately return any Proprietary Information provided, including all copies made by Buyer. LEASED APPLICATION EQUIPMENT: If 16. Buyer's order is for leased application equipment, the following additional conditions shall apply: Seller agrees to supply to Buyer leased (a) application equipment in accordance with conditions as stated herein for the term set forth in the sales order acknowledgement. After expiration of the original term, the lease will continue indefinitely thereafter (unless stated to the contrary on the face thereof) and shall be terminable at will by either Seller or Buyer at any time on thirty (30) calendar days prior written notice. The initial non-refundable preparation charge, (b) if any, for each piece of leased application equipment is as stated in writing from Seller or on the invoice. Initial retention charges are payable in advance on date of shipment, and subsequent retention charges are payable monthly, quarterly or yearly, as requested by Buyer. Seller reserves the right to require Buyer to pay retention charges annually, if the payment period elected by Buyer would require Seller to invoice Buyer for amounts less than $250.00 per invoice. Seller reserves the right to allocate its supply of (c) leased application equipment among its various customers according to its own discretion. Leased application equipment delivered (d) hereunder and all additions, replacement parts and modifications thereof shall be and remain the sole and exclusive property of Seller. Buyer shall have no title or interest therein, but shall have only the right to use said leased application equipment during said term in conjunction with terminals of the materials, dimensions and forms for which the leased application equipment is designed and any such other uses or applications as are approved by Seller. However, no license under any patent to make or have made or otherwise acquire any terminals shall be implied or is granted. Factory service, if required, is available at (e) Seller's rates in effect at the time of the service call. Factory charges will be billed to Buyer for services required due to misuse or abuse of leased application equipment. Spare and replacement parts for the leased application equipment can be purchased from Seller. Buyer shall be solely responsible for any damage to the application equipment resulting from Buyer's use or replacement parts not meeting Seller's specifications. Seller shall have the right at all times during Buyer's business hours to inspect the application equipment. The right to use the leased application (f) equipment is limited to Buyer and said leased application equipment shall not be assigned, sublet or in any way encumbered. Buyer shall be responsible for said leased application equipment, and in the event this Agreement is terminated pursuant to the terms herein contained or for any cause whatsoever, Seller shall be entitled to immediate possession of the machine(s) and/or applicator(s), and Buyer shall return each of them in good order and condition, reasonable wear and tear only excepted, DDP Seller's designated location. Buyer will not remove, obliterate, or deface Seller's name tag and may not in any way modify or alter any application equipment furnished hereunder without the prior written consent of Seller. If leased application equipment has been leased with installed third party software, upon termination of the lease and return of the leased application equipment, Buyer shall return or destroy (as directed by Seller) all backup, archival and diskette/CD ROM copies of the third party software. If the leased application equipment is not returned to Seller in accordance herewith, Seller shall have and Buyer hereby grants an irrevocable license to enter by Seller's servants or agents on any premises where said leased application equipment may be or may be reasonably suspected to be and to take back and retain said leased application equipment. If leased application equipment delivered (g) designated location. hereunder is for demonstration only, leased application equipment is to be returned at the end of thirty (30) calendar days, unless otherwise agreed in writing, in good order and condition, freight collect to Seller's (h) Seller shall have the right to suspend or cancel the lease contract or terminate the term leased application equipment at any time upon Buyer making an assignment for the benefit of creditors or becoming bankrupt or insolvent, or upon a petition or voluntary assignment being filed proposing the appointment of a receiver or that Buyer be adjudicated bankrupt or insolvent or commits a bulk sale. In addition to the forgoing provisions set forth (i) in this Section 16, all orders for leased application equipment are subject to Seller's Equipment Policy, as amended from time to time, which is posted at http://www.te.com/content/dam/te- com/documents/policies-agreements/terms- conditions/equip-policy-114119-1.pdf (the "Equipment Policy"). The Equipment Policy is incorporated herein by reference and shall have the same effect as if set forth herein in its entirety. 17. CANCELLATION: Neither this Agreement nor any release hereunder is subject to cancellation by Buyer except upon (a) written request of Buyer and (b) written approval of Seller. Because Seller's expenses related to cancelling firm orders are dependent upon (i) Seller's inventory carrying costs, (ii) the likelihood of Seller quickly selling the subject Products to other buyers, (iii) Seller's other related out-of-pocket costs, and (iv) administrative costs, Seller may charge Buyer a cancellation fee. CANCELLATION OF STANDARD PRODUCT: If Buyer seeks to cancel a Product order and Seller determines the Product being cancelled to be standard product (which Seller may be able to sell to another customer), the Seller may charge a cancellation charge according to the (a) quantity being cancelled, (b) time frame between Buyer's request to Seller to cancel and the order's scheduled ship date, and (c) dollar amount of order being cancelled. The calculation of the exact cancellation charge will be at Seller's discretion. Any orders that constitute twenty-five percent (25%) of the previous six (6) month usage of a particular Product, and any Products that are custom-designed for Buyer and cannot be sold to other customers, will be deemed "Custom Product" and will follow the cancellation conditions of Custom Product, set forth below. CANCELLATION OF CUSTOM PRODUCT: If Buyer seeks to cancel a Product order and Seller determines the Product being cancelled to be Custom Product, as defined above, Seller may deny Buyer's cancellation request. If Seller permits the cancellation of Custom Product, Buyer agrees to pay Seller for all of Seller's out- of-pocket costs associated with the cancellation of the order including, but not limited to: (i) raw materials, (ii) work in process, (iii) inventory and/or inventory carrying costs, (iv) scrapping and disposal fees, and (v) a reasonable and equitable profit for Seller, which shall not be less than twenty percent (20%) of such costs. In no case will the cancellation charge be less than Seller's actual costs (including overhead and other indirect costs). The amount of cancellation charge to be charged to Buyer shall be determined at the sole discretion of Seller and may equal 100% of the amount of the order at the time of Seller's receipt of Buyer's request for cancellation. Buyer is entitled to receive a written notice from Seller setting forth how the cancellation charge was calculated. Upon payment of the cancellation charge, Buyer shall be entitled to receive all raw materials and work in process, and Seller agrees to ship such goods to Buyer at Buyer's expense. Seller reserves the right, by written notice of default, to cancel any order, without liability to Buyer, in the event of the happening of any of the following: insolvency of Buyer, the filing of a voluntary petition in bankruptcy by Buyer, the filing of an involuntary petition to have Buyer declared bankrupt, the appointment of a receiver or trustee for Buyer, the execution by Buyer of an assignment for the benefit of creditors, the discontinuance of business by Buyer, or the sale by Buyer of the bulk of its assets other than in the usual course of business. RESCHEDULES: Buyer may only reschedule 18. an order with Seller's written consent. A reschedule should not extend further than an additional thirty (30) calendar days from original ship date requested. Reschedules may be subject to a ten percent (10%) penalty based on total amount of the order or portion of the order rescheduled. RESALE OF PRODUCTS: Unless otherwise 19. agreed by a duly authorized representative of Seller, Buyer agrees that it shall not resell any Products purchased from Seller unless Buyer is an authorized distributor of Seller's Products. Seller shall not be obligated to provide any warranty service or other technical support for any Products not purchased directly from Seller or an authorized distributor of Seller. SPECIAL PACKAGING: Application 20. equipment, applicators, hand tools and any associated replacement parts are excluded from general customer specifications for packaging and labelling. Other customer requests for special packaging will be considered on a case-by-case basis. 21. NO LICENSE: Neither this Agreement nor purchase of any Products hereunder shall be construed to confer upon Buyer or its customers any license under any patent or other proprietary rights of Seller, except the right to use such goods for the purposes for which they are sold. Tooling, set-up, fitting-up, drawings, design information, non-recurring engineering, and partial preparation charges when invoiced cover only part of the cost thereof to Seller. Buyer does not acquire any right, title or interest in any tooling, set-up, fitting-up, drawings, design information, or invention or other intellectual property resulting therefrom, which remain the sole property of Seller. NON-WAIVER OF DEFAULT: No failure by 22. Seller to insist on strict performance of any term or condition hereof shall constitute a waiver of such term or condition or any breach thereof, nor shall such failure in any way affect Seller's legal remedies with respect to any default by Buyer hereunder. APPLICABLE LAW: This Agreement and the 23. sale of goods and services hereunder shall be governed by and construed in accordance with the laws of the state in which Seller is located, or, if Seller is located outside of the U.S., the laws of the country in which Seller is located, excluding laws directing the application of the laws of another jurisdiction, and Buyer hereby consents to such exclusive jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not, for any purpose, govern or apply to the sale of goods and services or any transactions, performance or disputes hereunder. 24. ASSIGNMENT: Buyer may not transfer or assign this Agreement or any interest herein, by operation of law or otherwise, without the prior express written consent of Seller. Any attempted transfer or assignment without such consent shall be void. Seller may assign its rights and delegate its duties hereunder. ENTIRE AGREEMENT; MODIFICATION: 25. This Agreement supersedes all prior written and oral agreements and understandings between Seller and Buyer with respect to the Products and services specified herein. No representation or statement not contained herein shall be binding upon Seller as a representation, warranty or condition or otherwise. No addition to or waiver, modification or cancellation of any provision hereof shall be binding upon Seller unless in writing and signed by a duly authorized representative of Seller. NOTICES: All notices and other 26. communications hereunder shall be in writing and shall be mailed by first-class, registered, express or certified mail, postage prepaid, to the parties hereto at their respective designated addresses, subject to the right of either party to change such address upon ten (10) calendar days prior written notice. EXPORT CONTROL: Buyer acknowledges 27. that Products, software, and technical information provided under this Agreement are subject to U.S. and other export laws and regulations. Buyer agrees not to export, re-export, transfer, or transmit the Products, software, or technical information except in compliance with all such laws and regulations. This sale is subject to any applicable governmental approvals and, at Seller's request, Buyer agrees to sign written assurances and other export-related documents as may be required for Seller to comply with export laws and regulations. U.S. GOVERNMENT CONTRACTS: Seller 28. supplies "commercial items" within the meaning of the Federal Acquisition Regulation (FAR), 48 CFR Parts 1- 53. Seller accepts only the mandatory flowdowns for subcontracts for commercial items in accordance with FAR 52.244-6(c)(1). Seller also will accept the clauses listed in Defense FAR Supplement (48 CFR Parts 201 - 299) (DFARS) 252.244-7000, and other agency specific mandatory flowdowns for commercial items specifically identified by the Buyer. Any FAR, DFARS or other U.S. Federal government agency acquisition regulations additional to or different from such mandatory flowdowns shall not become a part of the contract. DFARS SPECIALTY METALS: Seller part 29. number(s) fall within the definition of "Electronic Component" as defined in the Office of the Secretary of Defense Class Deviation, Subject: Class Deviation – Implementation of New Specialty Metals Restrictions. As such, Seller part number(s) are exempt from the DFARS Specialty Metals requirements as per DFARS 252.225-7014, Alternative I (DEVIATION 2008-00002), specifically subparagraph (b)(1). MARKET CLEARANCE AND RELATED 30. OBLIGATIONS: Unless otherwise agreed in writing by a duly authorized representative of Seller, Seller does not hold any US FDA market clearances (or the non-US equivalent) for any Products sold to Buyer by Seller, including in cases where Seller is acting as a contract manufacturer/private labeller for buyer, and Seller assumes no obligation whatsoever for requirements imposed by law on the holder of any market clearance for the relevant Product(s). Buyer shall, upon request, provide information requested by Seller regarding buyer's market clearance(s) for the Product(s) to the extent reasonably required by Seller for compliance with FDA and other similar requirements.
31.
TOOLING USE CHARGES. TOOL
OWNERSHIP: Seller retains title to any tooling required to manufacture the Product(s). Fifty percent of the tooling use charge is payable by Buyer upon receipt of the tooling order. The balance is payable upon delivery of first article parts manufactured to approved Product design specifications. Seller is responsible for routine maintenance of the tool during its useful life. Seller is responsible for repairing any damage to the tool caused by Seller's negligence or accident. The Buyer is responsible for replacement of the tool at the end of its useful life. Tool Changes: Tool design changes must be mutually agreed upon between Buyer and Seller. Any additional charges for tool changes will be borne by the requesting party. Tool Usage: Seller agrees to use tooling exclusively for Buyer's Products, except in the case that tooling is used to produce generic, non-proprietary components and Buyer approves tool usage. NON-RECURRING ENGINEERING 32. CHARGES (NRE): Non-recurring engineering charges and all charges of a similar nature which may be billed to Buyer for work performed by Seller in connection with the sale of goods from Seller to Buyer (including but not limited to tooling charges, partial preparation charges, drawing or design charges, set-up or fit-up charges, and the like) represent only part of the cost thereof incurred by Seller. Buyer does not acquire any right, title or interest in, or license (either express or implied) to, any drawings, designs, inventions or other intellectual property, or any tooling or other tangible property, by virtue of any such charges.
WARRANTY EXCLUSIONS:
33.
Notwithstanding any other terms to the contrary, no warranties shall apply to non-production run Products, including without limitation samples, development Products, prototypes, evaluation units, unapproved first articles, pilot Products, pre-production run Products, validation run Products, or any other Products deemed by Seller to be non-production run Products.