Terms and Agreement of Sale

Terms and Agreement of Sale

PICA Manufacturing Solutions, Inc. (the “Seller“) and the person or company identified on the invoice to which these Terms and Agreement of Sale are attached (”Buyer”) hereby agree to the following terms and conditions (this “Agreement”):

1. CONTROLLING DOCUMENT. The acceptance by Seller of any purchase order from Buyer for the products described on the invoice (the “Products“) is expressly made conditional on the Buyer’s assent to the terms and conditions set forth herein, and Seller agrees to furnish the Products only upon these terms and conditions. This agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and cancels and supersedes all prior communications, representations, understandings, agreements and course of dealings. Buyer’s purchase order is solely for the purpose of requesting delivery dates, quantities and shipping destinations and instructions. Any provision of Buyer’s purchase order (or other documents and communications) which is in any way inconsistent with or in addition to the terms and conditions contained herein shall not become part of this agreement or otherwise be binding on Seller unless expressly agreed to in writing by Seller. The terms and conditions contained herein shall be applicable whether or not they are attached to or enclosed with the Products and whether or not this agreement is executed for any particular Product on any sale hereafter.

2. PRICING PAYMENT TERMS: SHIPPING. All prices quoted by Seller are FCA (Incoterms 2000) Seller’s plant. In all cases, title, risk of loss and all responsibility for transportation, insurance and storage shall pass from Seller to Buyer upon Seller making the Products available to Buyer at Seller’s plant or other designated location prior to loading by commercial carrier for shipment to the Buyer’s designated location. The Products will be deemed accepted by Buyer on receipt. Buyer shall pay I00% of the total price listed on the invoice within thirty (30) days following the date the Product is first made available FCA Seller’s plant or other designated location prior to loading by a commercial carrier (the “Shipment Date”). If payment is not received within thirty (30) ­­days following the Shipment Date. Buyer shall pay late charges on such past due amounts at the rate of 1.5% per month or the maximum rate allowed by law, whichever is lower, accruing as of the Shipment Date. Buyer may not cancel any of the Products ordered by Buyer without Seller’s prior written consent. The Products covered by this Agreement are of special manufacture nature such that scheduled shipping date is only an approximate shipping date. The Shipment Date may be different than the scheduled shipping date and Seller shall not be liable for any liability or injury to the Buyer arriving from such difference. Without liability to any person and without prejudice to any other remedy. Seller may withhold or delay shipment of any order in accordance with these terms and conditions or if Buyer is late in payment or is otherwise in default under this Agreement. Seller shall package the Product in a manner it deems reasonable. Seller will determine the method of transportation or carrier, unless Buyer specifies a method of transportation and carrier in writing within thirty (30) days prior to the scheduled Shipment Date or prior to shipment, provided Seller may make commercially reasonable changes thereto. In each case claims for damages must be filed with the applicable carrier. Seller is not obligated to obtain insurance or to prepay transportation costs unless it has agreed in writing to be responsible for said costs. Buyer agrees to pay all loading, unloading, and other charges incidental to transportation. Buyer is responsible for all export and import authorizations. In exercising its rights under this Agreement, Buyer agrees to comply strictly and fully with all export controls and regulations imposed on the Products by the U.S. and any country or organization or nations within whose jurisdiction Buyer operates or does business.

3. SECURITY INTEREST. Seller retains, and Buyer grants to Seller, a security interest in the Products sold hereunder and in the proceeds from any sale, exchange, collection or disposition of Buyer thereof, until Buyer has made payment in full for the Products and for any other obligations of Buyer under this Agreement. Buyer shall, upon request and without legal demand by Seller (i) provide all information required by Seller to perfect such security interest whether as a personal property or a fixture security interest, and (ii) execute any financing statements, continuation statements, or other documents as Seller requests to protect its security interest.

4. EXCUSABLE DELAY. Seller reserves the right to make partial shipments, and unless otherwise specifically agreed, shipments shall be separately invoiced and paid for when due without regard to later shipments. Seller shall not be liable for any loss or damage as a result of any failure to perform or any delay in shipment, due to any cause beyond Seller’s control, including but not limited to an act of God, an act of Buyer, fire, theft, flood, war, sabotage, slow-down, strike or other labor difficulty, riot, acts of terrorism, embargo, government act, regulation, rule ordinance or request or inability to obtain necessary labor, materials, manufacturing facilities or transportation. In the event that any one or more deliveries pursuant to this Agreement is suspended or delayed by reason of any of the foregoing events, the Seller may, at its option, terminate this Agreement or delay delivery until such disabilities have ceased to exist.

5. TAXES AND OTHER CHARGES. Any sale, use excise, tariff, value-added, custom, tax or any inspection or testing fees, or any other tax, fee, penalty, imposition, or charge of any nature (all of the foregoing collectively hereinafter referred to as the “Tax”) whatsoever imposed currently. or imposed or assessed in the future. by any federal. state or other government authority, upon or with respect to the sale, purchase, deliver, storage, processing, importation, use or consumption of or on any Product, or upon payment to Seller hereunder, shall be paid for by Buyer in addition to the purchase price, unless such “Tax” was specifically referenced in the quote for the parts and built into the piece price in the event Seller is required to pay any such Tax, Buyer shall reimburse Seller therefor. If Buyer does not so reimburse Seller within thirty (30) days after shipment. Buyer shall be liable to Seller for an interest charge of 1.5% per month or the maximum rate allowed by law, whichever is lower; and Buyer shall pay all costs incurred by Seller in extending credit for the Tax. This provision shall supersede, and take precedence over, any conflicting provisions in any documents tendered or delivered by Buyer.

6. SUITABILITY; ACCEPTANCE. Before using any of the Products, Buyer shall determine the suitability of the Products for Buyer’s intended use by considering such factors as overall product design and the processing and environmental conditions to which the Products will be subjected. Buyer shall assume all risk and liability whatsoever resulting from the use of the Products. Buyer shall inspect the Products promptly on receipt, and in any event before incorporating the Products into another product. Buyer shall notify Seller in writing immediately upon discovering any defect in the Products. Notice of rejection by Buyer must be in writing and identify all non-conformities upon which Buyer will rely to support rejection Buyer shall retain any rejected Products and await Seller’s instructions with regard to their return. Buyer’s sole remedy for the failure of the Products to conform to the warranties provided herein. or otherwise under this Agreement, shall be limited to the repair or replacement of the defective or nonconforming Product.

7. WARRANTY; DISCLAIMER. Seller warrants that the Products will be free from defects in material and workmanship and will conform to specifications mutually agreed upon in writing between the Seller and Buyer. The foregoing is the sole and exclusive warranty provided by Seller and shall apply in the event notice ex defect or nonconformity is given to Seller within a period ex sixty (60) days after delivery. SELLER HEREBY EXCLUDES ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED BY OPERATION OF LAW, COURSE OF DEALING, TRADE USAGE, REPRESENTATION, STATEMENT OR OTHERWISE, INCLUDING, BUT NOT, LIMITED TO, ANY IMPLIED WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE OR INFRINGMENT OF INTELLECTUAL PROPERTY RIGHTS. SELLER ALSO EXCLUDES ALL OTHER OBLIGATIONS AND LIABILITIES IN CONNECTION WITH THE SALE OF THE PRODUCTS. SELLER SHALL NOT UNDER ANY CIRCUMSTANCE BE LIABLE TO ANYONE FOR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, ANY LOST PROFITS AND LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT SELLER OR A LICENSOR OF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS. SELLER’S MAXIMUM LIABILITY FOR ANY REASON SHALL NOT EXCEED THE TOTAL PAYMENTS TO SELLER HEREUNDER FOR THE RELEVANT PRODUCTS. Seller neither assumes nor authorizes any person, firm or entity to assume for it any other additional liability or responsibility in connection with the Products, including any affirmation, representation, or warranty concerning the Products made by an agent, employee, or representative of Seller, unless the affirmation, representation, or warranty is specifically included with this Agreement. Buyer accepts all of the Products subject to the terms herein.

8. INDEMNIFICATION: Buyer shall defend. indemnify and hold harmless Seller, its officers, directors, agents, employees, successors, assigns and customers from any and all loss, liability and expense including legal fees or judgments resulting from any claim made or action brought as a result of (a) the use, storage, sale, processing, or other disposition of the Products sold hereunder, or the action or inaction of Buyer or its employees, customers, or agents which may cause injuries or damage giving rise to claims against Seller, or (b) an alleged infringement of any patent when the claim arises out of Products manufactured to specifications provided by Buyer, or where the alleged infringement arises out of Buyer’s use of the Products or incorporation of the Products into any product

9. TOOLING: Buyer shall pay for tooling costs I00% upon delivery of approved parts unless otherwise specified in quotation. Seller retains ownership and proprietary rights of the complete tool and any other tooling components, including all related tooling designs, unless otherwise specified in the quotation. All processes, parameters,  and techniques remain the sole property of Seller. Notwithstanding the foregoing, in the event Seller ceases operations without having made arrangements for assignment of this contract to another entity capable of performing Seller’s obligations hereunder, the tooling shall be transferred to Buyer, without representation or warranty of any kind, for the sum of $1.00. Tooling inactive for over 2 years will be considered obsolete and will require replacement at buyer cost unless otherwise agreed upon by PICA management.

10. TOOLING MAINTENANCE: Seller agrees to responsibility for tooling preventative maintenance. Buyer is responsible for all other tooling repairs and replacement due to wear and tear under normal use.

11. BUYER’S PROPERTY: Seller assumes no responsibility for loss or damage to customer- owned parts and materials in Seller’s possession for processing.

12. CONFIDENTIALITY: Buyer shall not disclose Seller’s confidential business or technical information, including trade secrets, to any entity or person, nor to use such information for its own benefit, whether during or subsequent to the buying and selling relationship of Buyer and Seller and for a period of three (3) years from and after such relationship ceases. As used herein, confidential business or technical information includes, but is not limited to, information disclosed during the course of doing business, including: the identity of or other pertinent information with respect to actual or potential customers or customer contacts; bidding and pricing strategies; market studies, penetration data, or other market information; research and development activities, information and plans; technical, proprietary and know-how information; plans for new products; methods, practices, procedures, processes and formulas with respect to manufacture, assembly, design, or processing; sources of supply for products, components, and services; and any other secret processes, formulas, or methods. Confidential information does not include information which Buyer can demonstrate was available to it on non-confidential basis prior to its disclosure to Buyer by Seller or its representative; was independently developed by Buyer or is or becomes known to the public other than by act of Buyer or Buyer’s representative subsequent to disclosure thereof to Buyer by Seller, or became available to Buyer on a non-confidential basis from a source other than Seller or its representatives, provided that such source is not known by Buyer after due inquiry to be bound by a confidentiality agreement with Seller or its representatives, or is otherwise prohibited from transmitting the information to recipient by contractual,  legal, or fiduciary obligation. 

13. IMMUNITY FROM PATENT LITIGATION: Seller is contracted by Buyer to produce tooling and parts from said tooling, and Seller assumes no responsibility for any violation or infringement of any patent by Buyer.

14. CANCELLATION: Cancellation will only be agreed to by the Seller on condition that all costs and expenses incurred by the Seller up to the time of cancellation and all loss of profits and other loss or damage resulting to the Seller by reason of such cancellation will be paid forthwith by the Buyer to the Seller.

15. MISCELLANEOUS. This Agreement may be amended or supplemented only by a writing that refers explicitly to this Agreement and that is signed by the authorized representatives of both parties. No right or interest in this Agreement shall be delegated or assigned by Buyer without the written permission of Seller. Any attempt at assignment or delegation shall be void unless made in conformity with this paragraph. Buyer warrants that it is purchasing for its own account and not as an agent. This Agreement shall be governed by and construed in accordance with the law of the state of New Hampshire without regard to its conflict of law principles. No waiver, alteration, or modification of any of the provisions hereof shall be binding on Seller unless made in writing and duly authorized and executed by Seller. A waiver or modification by Seller of any condition or obligation of Buyer hereunder shall not be construed as a waiver or modification of any other condition or obligation and no waiver or modification by Seller granted on any one occasion shall be construed as applying to any other occasion. If any of the provisions in this Agreement are held to be in violation of applicable law or applicable court decision, then such provisions are hereby waived or amended to the extent necessary to achieve the same economic effect for this Agreement to be enforceable in such jurisdiction and the rest of the Agreement shall remain in full force and effect. All notices, reports, requests, approvals, and other communications required or permitted hereunder must be in writing, sent to the receiving party’s address as specified by the receiving party and shall be deemed delivered upon receipt.

PF-0001 Rev C