Terms and Conditions of Sale and Service

1. DEFINITIONS

• “Seller”, when used herein, means DM Solutions, a subsidiary of Dapra Corporation.
• “Buyer”, when used herein, means the person or entity purchasing or receiving goods and/or services from Seller.
• “Goods” means the equipment, products, articles, supplies or other property sold by Seller to Buyer under an order.
• “Services” means the services provided by Seller to Buyer under an order.
• “Contract” means the purchase order or purchase agreement between Seller and Buyer for Goods and/or Services.
• “Order” means the Buyer’s order for the Goods.
• “Order Confirmation” means the Supplier’s written acceptance of the Order.
• “Standard Product” means the Supplier’s products that are offered or made available generally, such as an ‘off-the-shelf’ item.

2. GENERAL

Any action for breach of contract hereunder must be commenced within one year after the cause of action has accrued or they are waived. Any failure by Seller to enforce its rights under this Contract will not be deemed a waiver of such rights.

All disputes arising under or in connection with this Contract shall be resolved by:

• good-faith negotiations by knowledgeable, responsible representatives of each party who are fully authorized to settle any such dispute, or
• in the event such negotiations do not resolve such dispute within a thirty (30) day period (or such longer period as the parties may agree), binding arbitration to be held in Hartford, Connecticut by a single arbitrator mutually agreed by the parties, conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association.

Each party shall bear its costs of these procedures; the parties shall equally split the fees of the arbitration and the arbitrator. Notwithstanding the above, either party shall have the right to seek a temporary restraining order, or an injunction related to the purposes of this Contract, to compel compliance with confidentiality obligations, or to file suit to compel compliance with this dispute resolution process.

Buyer may not assign, novate, or otherwise transfer its rights or obligations under this Contract without Seller’s prior written consent, and any attempt to do so shall be null and void and of no effect.

3. CONTRACT

These Conditions apply to the Contract to the exclusion of any other terms that the Buyer may seek to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing. The Order constitutes an offer by the Buyer to purchase the Goods in accordance with these Conditions. The Buyer is responsible for ensuring that the terms of the Order and any applicable Specification are complete and accurate.

The Order shall only be deemed to be accepted if and when the Seller issues the Order Confirmation, at which point the Contract shall come into existence. The Contract constitutes the entire agreement between the parties. The Buyer acknowledges that it has not relied on any statement, promise, representation, assurance, or warranty made or given by or on behalf of the Seller which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising produced by the Seller and any descriptions or illustrations contained in the Seller's websites, catalogs, or brochures are produced for the sole purpose of giving an approximate idea of the Goods described in them and they shall not form part of the Contract or have any contractual force.

In the event of any conflict or inconsistency between the documents which together comprise the Contract, the following descending order of priority shall apply:

• the Order Confirmation;
• these Conditions;
• the Installation Conditions;
• the Specification;
• any written agreement made between the parties into which these Conditions are incorporated; and
• the Order.

4. PRICING

Seller’s published price lists, quotations, and estimates are not offers and are subject to change or withdrawal without notice before an order is acknowledged by Seller. Seller reserves the right to adjust the invoice price, after the price is quoted and/or acknowledged, to take account of any material variation in Seller’s costs beyond Seller’s reasonable control since the date of the quotation or (if no quotation is issued) the order acknowledgment, and the invoice so adjusted shall be payable as if the price set out therein were the original contract price.

All sales are subject to increase without notification by the amount of any sales, excise, or other tax or duty levied or charged by any governmental agency and are subject to any price adjustment necessitated by Seller’s compliance with any government action.

Any additional and/or different terms and conditions proposed by Buyer and/or any attempt by Buyer to vary any of these terms and conditions shall be deemed a material alteration and is hereby objected to and rejected unless expressly agreed by Seller in writing. Only variations or modifications to the Contract made in writing and signed by Seller and Buyer shall be enforceable.

5. RETURNS OR TERMINATION

Standard products are eligible for return if they are deemed by Seller to be current, unused, and in original packaging. Returns of standard products, where credit is issued after thirty (30) days of delivery and a replacement order, of greater or equal value, does not accompany a return, are subject to a restocking charge of 25% of the invoice price.

Products identified in writing by Seller as custom, special, or non-stock, may not be returned. If the Buyer cancels or changes an order for a custom solution under this Contract, the Buyer shall reimburse Seller for all reasonable costs incurred in connection with the order, including but not limited to any time and materials expended prior to the cancellation or change.

Returned Goods must also be:

• in new, unused, and resaleable condition.
• returned freight pre-paid.
• securely packaged for transit. Damage by the carrier is the responsibility of the Buyer.

No over shipments of pre-approved quantities are permitted.

Any non-conforming material or Goods not meeting the return conditions will be returned to the Buyer at the Buyer’s expense.

Buyer cannot return products under any circumstances without receiving Seller’s permission in writing (including an RMA).

Credit is issued once Goods have been received and inspected by Seller and found to be in new and saleable condition.

Special products, engineered solutions, and tooling provided by Seller are exempt from this policy and may not be returned.

6. PAYMENT

Invoices are due and payable in full within the specified period stated on the face thereof. Time is of the essence with respect to each payment. A service fee on any past due amounts may be charged by Seller at the lower of (i) 1.5% per month; or (ii) the highest rate permitted by law. In addition to late payment charges, Seller may add to the amount past due any costs associated with collection thereof, including reasonable attorney’s fees.

All Contracts shall be subject to credit review and approval by Seller at its sole discretion. Invoice price shall be payable in U.S. Dollars ($) and may be made in a method as follows:

• Check
• Credit Card
• Wire Transfer

Except to the extent that the Order Confirmation states otherwise, the following payment terms shall apply:

Standard “In-stock” Goods:

• Buyer shall pay an amount equal to 70% of the total price (“Downpayment”) at the time of order. Funds for the Downpayment must be received by the Seller before the shipment will be executed. Balance of payment due Net 30 terms.

“Built-to-order” Goods:

• Downpayment: Buyer shall pay an amount equal to 30% of the total price (“Downpayment”). The Downpayment is not refundable in any circumstances other than if the Customer validly terminates the Contract due to the Seller’s material unremedied breach of the Contract (see RETURNS AND TERMINATION);
• Seller shall not start to manufacture the Goods until it has received full payment of the Downpayment in cleared funds. Downpayment must be received within 7 days of the date of the invoice otherwise the manufacturing slot shall be released, and the estimated delivery time of the machine shall be extended;
• Seller shall notify Buyer in writing, subject to and after receiving full Downpayment, that the Goods have been approved for manufacture. The Seller shall notify the Buyer when the machine is ready for delivery;
• Shipment Installment: Seller shall invoice the Buyer for the shipment installment of an amount equal to 60% of the total price (“Shipment Installment”) before the estimated date of shipment. Payment of the Shipment Installment must be received by the Seller on or before the estimated date of shipment otherwise the Seller may, at its option, suspend shipment or leave the machine in an inoperative state after delivery. If the Buyer pays the Shipment Installment after the machine has been delivered, the Seller reserves the right to make an additional charge at its standard rate for a subsequent visit to put the machine into an operative state;
• Final Installment: Seller shall invoice the Buyer the balance of the total price, which, unless stated otherwise in the Order Confirmation, shall be an amount equal to 10% of the total price on or after delivery or deemed delivery under these Conditions.

In the event of cancellation in accordance with the provisions hereof, or in the event of non-payment (in full or in part) for the Goods by the due date, Buyer hereby irrevocably licenses Seller (insofar as it is able) to enter upon any premises to repossess the Goods. No failure of Seller to exercise any right accruing from any default of Buyer shall impair Seller’s right in case of any shipment default of Buyer.

7. FINANCING

If the Buyer and Seller enter into a separate contract for the financing of any purchases under this contract, and the terms and conditions of this order are inconsistent with the terms and conditions of the contract for financing, then the terms and conditions of the contractor for financing shall govern. Buyer agrees to execute and deliver to Seller all documents necessary to preserve Seller’s security interest in the material merchandise or equipment covered by this transaction.

8. SHIPMENT

Unless specifically agreed otherwise in this Contract, all sales are F.O.B. Seller’s plant. Seller may, at its discretion, select the carrier unless specified in advance by Buyer. Title to the Goods shall transfer to Buyer upon the earlier of full payment therefore and Seller’s delivery of the Goods per the agreed delivery terms. Risk in the Goods shall transfer to Buyer per the agreed delivery terms.

While expected dates of delivery of goods are given in good faith, the same are not of the essence of or in any way terms of this Contract or representations of fact. All shipping dates given are approximate, and while effort is made to maintain schedules, Seller will not be liable for damages on account of delay. In case of delay by Buyer in furnishing complete schedules, materials, or information, delivery dates may be extended for a reasonable time. Seller shall not be responsible for reasonable or excusable delays nor shall the Buyer refuse to accept delivery because of any such delays. Excusable delays include, without limitation, delays resulting from accidents, fires, floods, severe weather or other acts of God, strike, lockout or other labor difficulties, embargoes, government controls or other forms of intervention, inability to obtain labor, materials or services and other causes beyond Seller’s control. If there is a scarcity in any of its products or goods, Seller will allocate its available supply at its sole discretion.

Buyer shall inspect Goods and Services within ten (10) business days after delivery of Goods and completion of Services and notify Seller in writing of any defects or any failure of the Goods or Services to conform to the requirements of this Contract. All claims by Buyer for shortages in a shipment of Goods or Goods damaged in transit must be made against the carrier. All claims by Buyer against Seller for nonconforming Goods or Services and claims for shortages in a shipment or damaged Goods (other than claims to be made against the carrier) must be made in writing to Seller within ten (10) business days after receipt of shipment or Buyer shall be deemed to have accepted such Goods and Services and any claims for nonconforming Goods or Services shall be waived.

9. LIMITATION OF LIABILITY, ENGINEERING CRITERIA

The Goods furnished by Seller are sophisticated engineered products; accordingly, Buyer undertakes:

• That it has provided, and will promptly provide, all information reasonably necessary to enable Seller to (i) evaluate the requirements for performing and (ii) perform the Contract, and that all such information is full and accurate;
• That all premises, plant, engineering support, spare parts, safety requirements, connected work and machinery and inputs that Buyer is required to provide for the design, engineering, installation, testing, and use of the Goods are fit for their purpose and of good engineering quality;
• To use the Goods for the intended purpose only and in accordance with published standards and the literature provided with the Goods by Seller; and
• Not to use or undertake any unapproved spare part, connected machinery, service, repair, modification, or alternation, and agrees that any breach of these negative criteria will negate all specific and implied warranties, conditions and obligations on the part of Seller relating to the quality of the Goods.

Buyer further agrees that it will be liable to Seller for any costs, expenses, and losses it suffers by reason of any breach of these undertakings.

Unless otherwise agreed by Seller in writing, Seller reserves the right to change, modify, or discontinue the design and construction of any product or to substitute material equal to or superior to that originally specified, without notice to the Buyer.

10. INTELLECTUAL PROPERTY RIGHTS

All of Seller’s specifications, designs, drawings and indications of physical, chemical and electronic properties (“the Designs”) are made in good faith and are approximate indications only and are not binding in detail unless Seller has agreed in writing to a particular Design upon which Buyer has indicated it is relying; Seller shall be entitled to vary the same and/or to correct errors and omissions provided the Goods remain in substantial conformity with the contractual requirements.

The Designs and all other designs, drawings, know-how, technologies, proprietary information, and other intellectual property concerning Seller’s products or services (including all patents, copyright, design right, know-how, trade secret, and other intellectual property in them) are and shall remain, as between the parties, the sole property of Seller. Buyer is not entitled, licensed, or authorized to make any use of the Designs or other intellectual property of Seller other than for the use of the Goods and/or Services as contemplated by this Contract.

Unless specifically agreed in writing otherwise, any inventions, modifications, improvements, techniques, know-how, or intellectual property rights affecting Seller’s products or services made or gained in the course of performing this Contract shall belong to Seller absolutely.

Neither party shall disclose to third parties or use for its own purposes any confidential or proprietary information of the other party without the prior written consent of the other party.

11. LIMITED WARRANTY

Except as specifically agreed otherwise in this Contract, Seller warrants that Goods sold by Seller hereunder shall conform to specifications agreed in writing and shall be free from material defect in material and workmanship for a period of twelve (12) months from date of shipment (the “Warranty Period”). In the event of a breach of such warranty, Seller’s sole responsibility shall be to either repair or replace, at Seller’s option, any nonconforming Goods. Such replacement parts shall be provided at no cost to Buyer, during regular working hours. Seller’s obligation under this warranty shall not include any cost of removal, installation, duty, taxes, or any other charges whatsoever. Further, unless agreed otherwise by Seller, Goods alleged to be defective must be returned to Seller at the Buyer’s expense; Seller will pay for freight expenses back to the Buyer upon confirmation that the defects are subject to warranty.

EXCEPT FOR THESE EXPRESS LIMITED WARRANTIES, DAPRA CORPORATION’S WARRANTY IS, TO THE EXTENT PERMITTED BY LAW, IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY PRIOR WRITTEN OR ORAL REPRESENTATIONS REGARDING SUCH PRODUCTS MADE BY DAPRA CORPORATION, IT’S EMPLOYEES, AGENTS OR REPRESENTATIVES.

Seller shall be under no liability for breach of the warranty set forth herein for wearing and consumable parts or to the extent any damage or nonconformity is caused by: (i) improper installation (if installed by other than Seller), use, maintenance and/or service; (ii) modification or alternation by other than Seller; (iii) delays in notifying Seller of the alleged defect; (iv) equipment, component, materials or parts supplied by or on behalf of Buyer.

If Buyer informs Seller of a defect after the Warranty Period has expired, then Seller may, in its discretion, offer advice (free of charge) and repair or replacement of goods or additional services at Buyer’s expense.

There are no third-party beneficiaries of the warranty granted by Seller herein.

12. WARRANTY OF OTHER MANUFACTURER’S PRODUCTS

Except as expressly agreed by Seller, Seller makes no warranties or representations of any kind whatsoever, either expressed, implied, or statutory on any component parts or accessories sold hereunder which are not manufactured by Seller. Seller hereby extends the manufacturer’s warranty or guarantees, if any, given to Seller by the manufacturer of said component parts and accessories, but only to the extent Seller would be able to enforce such warranty or guarantees itself. Seller does not guarantee warranties of other manufacturers’ products. Claims under any manufacturer’s warranty shall be made in accordance with the manufacturer’s requirements regarding the return, repair, or replacement of the goods. Seller agrees to cooperate with Buyer in enforcing any claims against the manufacturer(s) for defects that may occur.

13. INDEMNITY

Indemnification. Each party agrees, if promptly notified by the other and given the right to control the defense and approve any settlements thereof, to indemnify and hold harmless the other from and against all claims or liabilities brought against it by third parties resulting directly or indirectly from any breach by the indemnifying party, its employees, agents of any obligation under this Agreement or arising out of any negligent, reckless, willful act of the indemnifying party, its employees, agents. Such indemnification shall include the payment of reasonable attorneys' fees and other costs incurred by the indemnified party in defending against such claims.

14. LIABILITY

IN NO EVENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL SELLER BE LIABLE FOR LIQUIDATED, INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES OR COSTS, INCLUDING BUT NOT LIMITED TO: (1) LOSS OF PROFITS, BUSINESS OR GOODWILL; (2) LOSS OF USE OF EQUIPMENT OR FACILITIES; OR (3) LOSS RESULTING FROM UNUSABLE MACHINERY OR FACILITY DOWNTIME, HOWSOEVER CAUSED AND EVEN IF THE POTENTIAL FOR SUCH DAMAGES WAS DISCLOSED AND/OR KNOWN.

15. CONFLICTING LAW

Some jurisdictions provide rights in addition to those listed above or do not allow the exclusion or limitation of implied warranties, or liability for incidental or consequential damages. If any provision or part of a provision of these terms is found to be illegal, invalid, or unenforceable under any applicable law, such provision or part of a provision shall, insofar as it is severable from the remaining terms, be deemed omitted from these terms and shall in no way affect the legality, validity, or enforceability of the remaining terms.