TERMS AND CONDITIONS OF SALE
LAST REVISED 6 June 2022 (Form004310, Rev R)
These Terms and Conditions of Sale and any quote submitted with these Terms and Conditions of Sale (together, the “Contract”) are between Sheldahl Flexible Technologies, Inc (SFT) and the customer to which these Terms and Conditions of Sale and any quote are delivered (“Buyer”).
Buyer accepts this Contract by: (a) executing and returning this Contract: (b) delivering a purchase order or forecast for Products (defined below) with quantities and delivery dates acceptable to SFT; (c) accepting delivery of the Products; or (d) paying the price for the Products set forth in the quote, whichever comes first. Any counteroffer or proposed addition to or supplement of, or any material variance from, the material terms and conditions of this Contract are hereby expressly objected to and rejected. If this Contract is responsive to a prior offer by Buyer, then this Contract shall be deemed an acceptance of such offer limited to the material terms and conditions stated in this Contract, and any additional or supplemental terms or any material variance from the terms and conditions of this Contract are expressly objected to and rejected. Any non-material variance from the terms of this Contract proposed by Buyer shall not operate as a rejection of this Contract and shall be deemed a part of this Contract.
1.PRODUCTS; TOOLS & EQUIPMENT. Buyer agrees to buy, and SFT agrees to manufacture and sell, the products (“Products”) described in the quote in accordance with mutually agreed upon specifications of Buyer (“Specifications”), if applicable, pursuant to acceptable orders placed by Buyer under this Contract. Buyer grants SFT the right to use the Specifications for such purpose. Products delivered to Buyer on a consignment basis pursuant to forecast(s) but prior to order(s) made by Buyer hereunder, shall be identified by Buyer as SFT property, safely stored and kept free of all liens, claims, encumbrances and interests of third parties, all at Supplier’s expense. Special tools and equipment (i.e., dies, patterns, jigs, molds, etc.) used in the manufacture of Products shall be furnished, and replaced, when necessary, by SFT at Buyer’s expense.
2.END OF LIFE (EOL) Buyer reserves the right to discontinue the manufacture of any Product specified by Buyer. Such discontinued Product will be identified to the Seller at least one (1) year in advance of the date the Product will become the end of life (“EOL Date”). During such notice period, the Buyer may place orders for EOL Products with the last delivery date no later than the EOL Date. The Buyer will be responsible for any materials still in the Seller’s possession (raw materials, components), and tooling charges amortized will be accelerated prior to EOL. Seller will use commercially reasonable efforts to deliver such EOL Products. If a supplier discontinues a material, part or otherwise, Seller will use commercially reasonable efforts to find a substitution. Should Seller not find a comparable substitute, Seller will give the Buyer notice of EOL Date. Buyer acknowledges and agrees that orders placed for End of Life Products are non-cancelable and non-returnable and cannot be rescheduled, except with respect to nonconforming Products.
3.PRICE. Prices for the Products are described on the quote and are effective for the period set forth on the quote. Thereafter, prices are subject to CHANGE with notice to Buyer. Prices for the furnishing of special tools, equipment, components, processing and materials are described on the quote or as otherwise agreed by the parties in writing. Buyer shall pay SFT the price for Products ordered set forth on the quote, or as otherwise notified to Buyer in SFT’s invoice, and the price for the special tools, equipment, components, processing and materials without setoff or deduction. Prices exclude all federal, state, or local taxes, and therefore such prices are subject to increase in the amount of any such tax (excluding tax on net income) that SFT may be required to collect or pay upon the sale or delivery of the Products and furnishing of the special tools, equipment, components, processing and materials. Prices are, and all payments shall be made, in the currency set forth in the quote.
4.PAYMENT TERMS. (a) Payment. Unless otherwise stated on the quote, payment terms for sales, special tools and equipment and associated expenses are net thirty (30) days from date of SFT’s invoice. Buyer shall make all payments irrespective of whether Buyer has made or may make any inspection of any Product. SFT may cancel or reschedule deliveries of Products if Buyer fails to make any payment when due; (b) Charges. Past due amounts bear interest at a rate of one- and one-half percent (1.5%) per month or at the maximum rate allowed by law, whichever is less from the date on which such amounts become overdue until paid in full. SFT’s rights under this section shall be in addition to all other rights and remedies available to SFT upon Buyer’s default. Buyer shall be liable for all expenses attendant to collection of past due amounts, including attorney’s fees; and (c) Purchase Money Security Interest. Each Product shall be subject to a purchase money security interest retained by SFT in the Products until payment in full of the purchase price for such Product(s) and related charges to SFT. Buyer agrees to execute financing statements and other documents as SFT reasonably requests and acknowledges that this document constitutes a proper security agreement to be used in connection with any such financing statement. SFT is authorized to file one or more financing statements relating to all or any part of the Products without the signature of Buyer where permitted by law. A photocopy or other reproduction of this Contract or any financing statement covering the Products, or any part thereof shall be sufficient as a financing statement were permitted by law.
5.FORCE MAJEURE. SFT shall not be liable for any delays in the delivery of orders, due in whole or in part, directly or indirectly, any circumstance beyond SFT’s reasonable control including but not limited to fire, act of God, epidemic, pandemic, strike, shortage of raw materials, supplies or components, retooling, upgrading of technology, delays of carriers, embargo, government order or directive.
6.DELIVERY TERMS. Unless otherwise stated on the quote (a) all deliveries shall be made Ex works SFT’s factory (EXW Incoterms 2020), and, unless otherwise stated in the quote, SFT shall present the Products to the carrier, and risk of loss of such Products shall transfer to Buyer upon presentation. SFT will attempt to meet the requirements of Buyer’s delivery schedule and SFT shall not be in default of performance due to a delay of reasonable duration resulting from any cause. Buyer shall pay, or reimburse SFT for, all amounts due for import and export licenses and permits, custom charges and duties, penalties, freight, insurance and other shipping expenses. If Buyer desires SFT to arrange freight delivery, Buyer agrees that it shall be responsible for and agrees to pay such freight charges, including custom charges and duties, taxes, VAT, penalties, freight, insurance and all other shipping expenses. In the event Buyer has not been picked up Product in accordance with the agreed upon shipment dates, SFT has the right to coordinate the shipment on Buyer’s behalf and invoice Buyer for such affected Products. Buyer agrees within 5 days following the invoice for such affected Products, to provide the location to which SFT shall ship the Products. If Buyer has not provided the ship to location after the fifth day, Buyer understands and agrees that a monthly finance carrying charge of one and one half percent (1.5%) and a storage and handling charge of one half percent (.5%) will start accruing for which it agrees to pay, calculated as of the first day after the original agreed upon shipment date. SFT will invoice Buyer freight charges and any customs charges or duties, VAT, insurance and any other shipping expenses and Buyer agrees to pay such invoice in accordance with Section 4(a). Unless otherwise instructed, selection of carrier and routing of all shipments shall be at SFT’s discretion. All prototypes of Products will be shipped standard express overnight or equivalent method for international shipments unless otherwise requested. Shipment dates for export sales are approximate and are subject to receipt of all necessary Buyer information, and all necessary licenses, permits and other documents. A variation in quantity of Products delivered not to exceed plus or minus ten percent of the amount agreed upon will be considered to be in compliance with the agreement of the parties. SFT reserves the right to ship +/- ten percent (10%) of the purchase order quantity. Buyer shall be responsible for payment of each Product shipped by SFT that is within +/- ten percent (10%) of the purchase order quantity of each line item.
7.INSPECTION AND ACCEPTANCE. Buyer must inspect delivered Products and report claims for any damages or shortages in writing within five days of delivery or the Products shall be deemed irrevocably accepted and such claims shall be deemed waived, except as provided in Section 9. In the event of source inspection by Buyer, SFT reserves the right to designate the place within the plant where inspection may be performed and to deny access to areas and processes considered proprietary to SFT. Any freight carrier damages, or shortages must be noted on the carrier’s delivery receipt at the time of delivery. Risk of loss and damage of physical product is to remain with Buyer on Buyer routed shipments.
8.TITLE AND OWNERSHIP. Title and risk of loss to the Products shall transfer from SFT to Buyer upon removal from SFT dock. Buyer hereby recognizes that SFT retains all right, title and interest in (a) all intellectual property rights in and to all processes, methods, formula, ingredients, designs, procedures and other practices used by SFT or relating to the manufacture of the Products, including all intellectual property rights therein; and (b) all of SFT’s equipment and tooling used in the manufacture of the Products, including all intellectual property rights therein, (collectively “SFT Technology”). Buyer hereby assigns to SFT all right (including intellectual property rights), title and interest it may now or hereafter possess in and to the SFT Technology and in any derivative works of and improvements to the SFT Technology and agrees to execute all documents, and take all actions, that may be necessary to effect such assignment. SFT is under no obligation to disclose any of the SFT Technology to Buyer for any reason. SFT hereby recognizes that Buyer retains all right, title and interest in all intellectual property rights in and to the Products as described in the Specifications and designs provided to SFT by Buyer (collectively “Buyer Technology”). SFT hereby assigns to Buyer all right (including intellectual property rights), title and interest it may now or hereafter possess in and to the Buyer Technology and in any derivative works of and improvements to the Buyer Technology and agrees to execute all documents, and take all actions, that may be necessary to effect such assignment. Buyer is under no obligation to disclose any of the Buyer Technology to SFT for any reason.
9.LIMITED WARRANTY AND REMEDIES. SFT warrants to Buyer that the Products shall be free from defects in materials and workmanship upon delivery. Any claims for breach of the foregoing warranty shall only be valid if Buyer makes such claim within 60 days of the date of shipment of the Product to which the claim relates, or such shorter period specified on the Quote, by notifying SFT’s Sales Department in writing and obtaining a Return Authorization Number for the return of the Products (which is to be referenced on all return shipping documents). Buyer’s exclusive remedy and SFT’s sole liability for any breach of the foregoing warranty shall be for SFT, at SFT’s sole option, to repair, replace or modify the defective Product, or refund to Buyer the purchase price paid by Buyer for the defective Product. The warranty service shall be performed at SFT’s factory. In order to receive the warranty service, Buyer must return the defective Product within 30 days of notification from Buyer hereunder. All warranty claims will be handled pursuant to SFT’s standard RMA procedures. If SFT determines that the original Products were not defective, Buyer shall reimburse SFT all costs of handling, transportation and repairs at SFT’s prevailing rates. All defective Products returned under this warranty which are replaced or for which a refund is given to Buyer shall become SFT’s property. THE WARRANTY SET FORTH IN THIS SECTION 9 IS IN LIEU OF ALL OTHER WARRANTIES AND SFT HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, INFRINGEMENT AND FITNESS FOR PARTICULAR USE. Warranty period for surface finishes is enclosed in Appendix A. Warranties for products not covered in Appendix A are stated in the Technical bulletins OR Certificates of Analysis provided with the product. Any repair or attempt to repair Products by anyone other than an authorized representative of SFT automatically voids any warranty on those Products.
INDEMNIFICATION. SFT agrees to defend, indemnify and hold harmless, Buyer and its affiliates, from and against all claims, actions, losses, expenses, damages or other liabilities, including reasonable attorneys’ fees (collectively, “Damages”) incurred by or assessed against Buyer and its affiliates, but solely to the extent arising out of third-party claims relating to (a) any actual or alleged injury or damage to any person (including death) or property caused, or alleged to be caused, by a Product sold by SFT to Buyer hereunder, but solely to the extent such injury or damage has been caused by the breach by SFT of its express limited warranties set forth in Section 9 or; (b) any actual or alleged infringement or misappropriation of the intellectual property rights of any third party, but solely to the extent that such infringement or misappropriation is arising from the SFT Technology, or is caused by a process that SFT elects to use to manufacture, assemble or test the Products other than a process specified by Buyer. Buyer agrees to defend, indemnify and hold harmless SFT and its affiliates from and against all Damages incurred by or assessed against SFT and its affiliates, but solely to the extent arising out of third-party claims relating to the Products including Buyer’s Application (defined in Section 18) of the Products, except to the extent that SFT indemnifies Buyer pursuant to this Section. With respect to any third-party claims, each party shall give the other party prompt notice of any third-party claim and cooperate with the indemnifying party at the indemnifying party’s expense. The indemnifying party shall have the right to assume the defense (at the indemnifying party’s own expense) of any such claim through counsel of its own choosing by so notifying the party seeking indemnification within thirty (30) days of the first receipt of such notice. A party given notice of a claim for which the other party expects to be defended and indemnified shall have thirty (30) days in which to either assume control of the defense or provide a reasonable explanation of why such party is not obligated to defend the claim pursuant to this Contract; the party seeking indemnification in such instance may begin to defend the claim on its own, subject to reimbursement of all such expenses by the other party upon the other party’s admission that such claim is that party’s responsibility, or upon the determination by a judge or arbiter (in accordance with the dispute resolution provisions below) that the party was responsible for the defense of the claim. The party seeking indemnification shall have the right to participate in the defense thereof and to employ counsel, at its own expense, separate from the counsel employed by the indemnifying party. The indemnifying party shall not, without the prior written consent of the indemnified party not to be unreasonably withheld, agree to the settlement, compromise or discharge of such third-party claim.
LIMITATIONS ON LIABILITY. SFT shall not be liable for any loss or damage caused by delay in furnishing the Products or for Buyer’s Application of the Products. UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE, TREBLE, EXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS OR GOODWILL) WHETHER SUCH CLAIM IS BASED ON CONTRACT, NEGLIGENCE, TORT, WARRANTY OR ANY OTHER BASIS UNDER OR AS A RESULT OF THIS CONTRACT OR THE PRODUCTS, IRRESPECTIVE OF WHETHER THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY UNDER OR AS A RESULT OF THIS CONTRACT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID BY BUYER FOR THE PRODUCTS PURCHASED UNDER THIS CONTRACT. The parties agree that the limitations on liability set forth in this Contract are independent of any exclusive or limited remedies and shall survive and apply even if such remedies are found to have failed of their essential purpose. No action, regardless of form, arising out of the transactions under this Contract may be brought by either party more than 1 year after the events which gave rise to the cause of action occurred.
12.RESCHEDULING. Buyer may reschedule of deliveries of Products (pushouts) with the express prior written approval of SFT’s general manager or the vice president of business development.
13.TERMINATION/CANCELLATION. Buyer may not terminate or cancel this Contract without SFT’s prior written approval, which may be withheld at SFT’s sole discretion. SFT may terminate this Contract or orders placed hereunder with notice to Buyer if (a) Buyer fails to pay when due any sums payable hereunder and such failure continues for 10 days after the due date; (b) Buyer materially breaches its obligations hereunder, other than the payment of money, and such breach continues for a period of 20 days after receipt by Buyer of written notice from SFT specifying such breach; or (c) any development work required hereunder is determined by SFT to be financially or technically inadvisable to proceed with. Buyer may not cancel all or any portion of an order for which Products have been shipped. If SFT terminates this Contract in accordance with this section, Buyer cancels all or any part of any order for Products prior to shipment, or Buyer fails to comply with any material obligation hereunder, including failure or refusal to make timely payments or breach of Section 12, causing SFT to cancel any order for Products or portion thereof, then Buyer shall pay SFT (i) all amounts due for Products ordered and shipped and expenses incurred related to special tools, equipment, components, processing and materials prior to the effective date of termination or cancellation; and (ii) a cancellation charge calculated by totaling the price set forth in the quote for four weeks’ worth of inventory of finished Products and work in process (prorated based on the developed stage of the applicable Products) and the actual cost of four weeks’ worth (or such other lead time as set forth in the quote) of raw materials and components, all based on the most recent forecast for the Products submitted by Buyer. Recognizing that SFT’s damages arising from any cancellation of any order or termination hereunder will be difficult to estimate, the parties agree that the cancellation charge is reasonable and is not a penalty. SFT shall deliver all such inventory, work in process, raw materials and components to Buyer upon request, after receipt of payment as set forth in this section and all costs of transportation for such items. Sections 1, 3, 4, 8, 9 (disclaimer only), 10, 11, 13, 14, 16, 17, and 18 shall survive any termination.
14.CONFIDENTIAL INFORMATION. Neither party shall use the Confidential Information of the other party for any purposes or activities other than in support of such party’s obligations established in this Agreement. Except as otherwise specifically permitted herein or pursuant to written permission of the disclosing party, neither party shall disclose or facilitate disclosure of Confidential Information of the disclosing party to any third party, except that the receiving party may disclose such Confidential Information to (i) those of its affiliates and their respective employees, consultants, and other agents who need to know such Confidential Information for carrying out the activities contemplated by this Agreement and/or (ii) third party suppliers or vendors for the purpose of obtaining price quotations; provided, however, that in either case, the recipient has agreed in writing to confidentiality terms that are no less restrictive than the requirements of this Section. Notwithstanding the foregoing, the receiving party may disclose Confidential Information of the disclosing party pursuant to a required court order, subpoena or other governmentally-required process; however, in such circumstance, the receiving party shall, to the extent reasonably feasible and permissible: (a) give the disclosing party prompt notice of the receiving party’s receipt or knowledge of such required disclosure; and (b) provide the disclosing party a reasonable opportunity to oppose such process or to obtain a protective order at the disclosing party’s expense. Subject to each party’s right to maintain copies of Confidential Information in accordance with such party’s reasonable record-keeping requirements, Confidential Information of the disclosing party in the custody or control of the receiving party shall be promptly returned or destroyed upon the earlier of (i) the disclosing party’s written request, or (ii) termination of this Agreement. Confidential Information disclosed pursuant to this Agreement shall be maintained confidential for a period of three (3) years after the disclosure thereof. “Confidential Information” means (a) the existence and terms of this Agreement except that the existence of this Agreement may be disclosed for purposes of enforcing the Agreement pursuant to Section 11.10, (b) all information concerning the fees or costs for Products, and (c) any other information that is marked “Confidential” or the like or, if delivered verbally, confirmed in writing to be “Confidential” within thirty (30) days of the initial disclosure, and any Information that otherwise would reasonably be considered Confidential Information under the circumstances, including but not limited to Buyer Technology and SFT Technology. Confidential Information does not include information that (i) the receiving party can prove it already knew at the time of receipt from the disclosing party free of any obligations of confidentiality; (ii) has come into the public domain without breach of confidence by the receiving party; (iii) was received from a third party without restrictions on its use; (iv) the receiving party can prove it independently developed without use of or reference to the disclosing party’s data or information; or (v) the disclosing party agrees in writing is free of such restrictions.
15.INSTALLMENT. SFT’s failure to deliver, or nonconformity of, any installment of this Contract shall not be a breach of this entire Contract.
16.EXPORT REGULATIONS; PERMITS. Buyer will comply with the provisions of the United States Government’s Export Administration regulations. All commodities, technology, software, or services provided by SFT are subject to the export regulations of the United States regardless of whether provided domestically or exported and may not be diverted in any method contrary to those export regulations. Buyer shall be responsible for obtaining any necessary export or import licenses and permits.
17.APPLICABLE LAW; VENUE. This Contract shall be governed by and construed in accordance with the internal laws (and not the laws of conflicts) of the State of New York. The parties expressly waive the application of the United Nations Convention on Contracts for the International Sale of Goods to this Contract. Any action at law, suit in equity, or judicial proceeding of any kind arising directly, indirectly, or otherwise in connection with, out of, related to or from this Contract or the relationship between the parties shall be litigated only in the state or federal courts located in New York County, New York and the parties waive any right they may have to challenge the jurisdiction of this court or seek to bring any action in any other forum, whether originally or by transfer, removal, or change of venue. The losing party in a lawsuit shall pay its own and the prevailing party’s attorney’s fees and expenses.
18.BUYERS APPLICATION. Buyer understands and agrees that it is purchasing a commercial off-the-shelf Product from SFT. The Product was not designed for any particular purpose. Furthermore, Buyer understands and agrees that it is the sole responsibility of Buyer to perform the necessary verification and validation work including, but not limited to, obtaining any applicable regulatory approvals or certifications, performance testing and integration work to establish that the Product is suitable for use in Buyer’s intended application (“Buyer’s Application”). Buyer shall, and require its customers to indemnify, defend and hold harmless SFT against any and all Damages arising out of the Buyer’s Application of the Product. For the avoidance of doubt, Buyer acknowledges and agrees that SFT shall neither indemnify nor defend Buyer or its customers against any Damage arising out of, or in any manner related to, the Buyer Application of the Product. To the maximum extent permitted by applicable law, Buyer and its customers agree to indemnify, defend and hold SFT, its officers, directors, employees and agents harmless from and against any and all Damages SFT may suffer as a result of any claims, losses, demands, costs or judgments against SFT arising out of Buyer’s Application of the Product. Buyer shall maintain product liability insurance with adequate and aggregate coverages for the Damages herein.
19.MISCELLANEOUS. This Contract and any non-disclosure agreement entered into by the parties, constitute the final, complete, exclusive and entire agreement between the parties and supersede all prior or contemporaneous agreements, written or oral, regarding the subject matter of this Contract. The failure of SFT to enforce at any time any of the provisions of this Contract shall not be construed to be a waiver of such provisions nor the right of SFT to enforce such provisions in the future. Buyer may not assign any rights under this Contract or this Contract in whole or in part without the prior written consent of SFT. Any prohibited assignment shall be null and void. This Contract shall inure to the benefit of successors in interest and permitted assigns. SFT may subcontract any of its obligations hereunder. If any provision of this Contract is found to be invalid or unenforceable in any respect, the validity and enforceability of the remaining provisions shall not be affected. The parties may only modify this Contract in a writing signed by both parties.