1. Application

These General Terms and Conditions of Sale (“Terms and Conditions”) are hereby incorporated into the quotation, invoice, online order form or system, order confirmation or acknowledgment, or other document to which they are attached or referenced (“Order” and, together with the Terms and Conditions, the “Contract”), and apply to the purchase of Goods (defined below) by the customer, owner or its agent (“Buyer”) and Code 3, Inc., as applicable (“Seller”). All purchases by Buyer and sales by Seller are expressly limited and conditioned upon acceptance of the Terms and Conditions. Seller objects to and rejects any provision additional to or different from the Terms and Conditions that may appear in Buyer’s purchase order, acknowledgement, confirmation, writing, or in any other prior or later communication from Buyer to Seller, unless such provision is expressly agreed to by Seller in a writing signed by Seller. These Terms and Conditions do and shall prevail over any of Buyer’s general or standard terms and conditions of purchase, or any other terms or conditions which Buyer purports to apply to Seller’s sale of Goods, regardless of whether or when Buyer has submitted an Order or such terms. Fulfillment of Buyer’s Order by Seller shall not in any manner or to any extent constitute acceptance by Seller of any of Buyer’s terms and conditions and does not serve in any respect to modify or amend these Terms and Conditions. For the purposes of these Terms and Conditions, the term “Goods” will refer to the goods listed on the Order. These Terms and Conditions may be amended only as set forth in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.

2. Quotations & Prices

Unless specifically stated otherwise in Seller’s quotation, prices are FOB Seller’s location listed in the Order (Incoterms 2020). Prices are subject to change upon notification by Seller. All amounts are quoted in US dollars unless specifically noted otherwise. Seller reserves the right to increase prices upon giving notice to Buyer. Once Seller provides notice of a price increase, the new price will be effective for all orders placed 30 days from notification date (unless Seller provides notice to Buyer of a different applicable notice period). If Seller issued a written quotation for the Goods, written quotations automatically expire 60 calendar days from the date issued and are subject to termination by notice within that period. Quotations may not be disclosed to any third party or used in preparation of any request for quotation for goods similar to, or as a substitution for, Goods quoted by Seller. Prices for Goods are exclusive of all city, state and federal excise taxes, including taxes on manufacture, sales, receipts, gross income, occupation, use, and similar taxes. Wherever applicable, such tax or taxes will be added to the invoice as a separate charge to be paid by Buyer.

3. Delays

Goods will be made available to Buyer within a reasonable time after the receipt of Buyer’s Order and, unless otherwise expressly and mutually agreed in writing by the Parties, delivered using Seller’s standard methods for packaging and shipping such Goods. Seller will use reasonable efforts to meet Buyer’s requested delivery date. In addition, delivery of Goods and Services are subject to, and contingent upon, delay directly or indirectly caused by, or in any manner arising from, fires, epidemics, floods, accidents, weather related events, disease, riots, acts of God, war, government interference, embargoes, priorities, regulations, strikes, labor difficulties, shortages of labor, fuel, power, materials or supplies, transportation delays, compliance with any law, statute, ordinance, regulation, policy, order or request of any federal, state, provincial or local government unit, or any officer, department, agency, or committee thereof, Seller's production schedules, or any other cause or causes (whether or not similar in nature to the causes identified in this Section 3 beyond Seller's reasonable control and Seller will not be liable for any loss or damage suffered by Buyer arising therefrom. Seller will have the right, in the event of the happening of any of the above contingencies, at its option, to cancel the Contract or any part thereof without any resulting liability. If, for any reason, Buyer fails to accept delivery of any of the Goods, or if Seller is unable to deliver the Goods because Buyer has not provided appropriate instructions, documents, licenses or authorizations, then (i) risk of loss to such Goods regardless shall pass to Buyer on such date, (ii) such Goods shall be deemed to have been delivered by Seller to Buyer on such date, and (iii) Seller, at its option, may store the Goods until Buyer picks them up, with Buyer bearing liability for storage in accordance with Section 6.

4. Partial Shipment

Seller reserves the right to make partial shipments of the Goods ordered by Buyer. Seller may make delivery in installments. All such installments will be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Buyer of its obligation to accept remaining deliveries.

5. Release Quantity

The total release quantity of Goods used for pricing must be requested for shipment. If multiple shipments are required, unless otherwise specifically agreed to in writing by an authorized representative of Seller, all requested shipments must be within a 60-calendar day period after purchase order placement. Modifications in schedule made by Seller will not affect Buyer pricing. Invoicing is based on Buyer accepting all scheduled shipments. If shipments are cancelled or reduced in quantity, Seller reserves the right to invoice with prices based on the actual shipped quantity meeting the indicated requirements. Buyer claims for shortages in quantity shipped must be filed in writing to Seller within twenty (20) days from the date of shipment. Claims for damage or loss in transit must be filed by the Buyer against the carrier.

6. Storage

In case of any delay in shipment of Goods caused by Buyer’s failure to accept delivery of the Goods for any reason, Seller may place the Goods in storage and Buyer will pay all handling, insurance and storage charges. Buyer will pay such charges promptly upon receipt of invoice and will pay for Goods placed in storage in accordance with the terms originally specified by Seller.

7. Transfer of Title

Title to the Goods will transfer from Seller to Buyer at the same time as risk of loss is transferred from Seller to Buyer under the applicable Incoterm.

8. Cancellation, Rescheduling and Returns

1. Orders may not be cancelled or rescheduled, and Goods may not be returned, without Seller’s prior written consent and require a Overstock Return Authorization (“OSR”), the date of shipment and the invoice number. In the event of such acceptance by Seller, Seller reserves all rights to charge Buyer (in the form of a cancellation fee or otherwise) for recovery of Seller’s costs and loss of profit as a result of any such cancellation, modification or rescheduling and/or to extend the scheduled delivery date. Returns must be in new and unused condition, transportation prepaid. Returns must comply with the requirements set forth in Seller’s Policies & Procedures available at Policies & Procedures - Code 3, as applicable. Failure to comply with the requirements of this Section 8 will result in Seller’s refusal of the return of Goods. If a Contract is terminated, modified or reduced in quantity by mutual agreement of the Parties, Buyer will repurchase any material purchased or ordered by Seller, at Seller’s cost. Shipment of such materials will be made to Buyer unless Buyer provides alternative shipping instructions to Seller.
2. Buyer shall inspect the Goods within 30 days after receipt of the Goods (the “Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as is required and approved by Seller. “Nonconforming Goods” means that the Goods received by Buyer from Seller under an Order: (i) do not conform to the part number listed in the applicable Order, (ii) do not conform to the packaging or labeling required by the Terms and Conditions, or (iii) on visual inspection, Buyer determines the Goods are otherwise defective.
3. In no event shall Seller be obligated to accept returns of (or issue any credit or refund for) any Goods, unless (i) such Goods constitute Nonconforming Goods and (ii) Buyer has obtained prior approval thereof from a sales representative of Seller, as evidenced by a OSR number issued by Seller with respect to such specific Goods. With respect to any such return of Goods, Seller shall have the right, in its sole discretion, to either (A) replace them with conforming Goods or (B) credit or refund the price paid for such Goods by Buyer, in each case subject to the conditions applied by Seller in its discretion.
4. Buyer acknowledges and agrees that the remedies set forth in Section 8(c) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided in Section 8, all sales of Goods to Buyer are made on a one-way basis, and Buyer has no right to return to Seller any Goods purchased under these Terms and Conditions.

9. Limited Warranty

Seller’s sole and exclusive warranty (and Buyer’s sole and exclusive remedy and Seller’s entire liability for any breach thereof) with respect to the Goods is set forth in the Seller’s Limited Warranty available at (Code 3) (the “Limited Warranty”). The Limited Warranty in its entirety is incorporated into and made a part of these Terms and Conditions by this reference.

10. Default

Upon the occurrence of any of the following events: (a) Seller, or any affiliate of Seller, has not received a payment due from Buyer, or any affiliate of Buyer, hereunder by the date such payment is due under Order, and such failure remains uncured for a period of three business days after Buyer’s receipt of written notice from Seller of such non-payment; (b) the failure of Buyer or Seller to perform any other obligation in the Order (excluding providing Performance Assurances (as that term is defined in Section 15), which is subject to (d) below) and such failure is not excused or cured within 30 days after written notice thereof; (c) the occurrence of a Bankruptcy Event; or (d) the failure of Buyer to timely provide prepayment or Performance Assurance, then the non-defaulting party, in its sole discretion and without prior notice (other than as provided above) to the defaulting party, may do any one or more of the following: (x) suspend performance under the Order; or (y) terminate the Order, whereby any and all obligations of the defaulting party, including payments or deliveries due, will, at the option of the non-defaulting party, become immediately due and payable or deliverable, as applicable. If, as a result of a default by Buyer, Seller suspends performance and withholds delivery of the Goods as permitted above, it may sell or scrap the Goods to a third party and deduct from the proceeds therefrom, if any, the purchase price and all reasonable costs resulting from Buyer's default as identified above, including all costs associated with the transportation (including demurrage and other vessel or shipping related charges), storage, and sale of the Goods. The foregoing rights, which will include specific performance, are cumulative and alternative and in addition to any other rights or remedies to which the non-defaulting party may be entitled at law or in equity. The non-defaulting party will be entitled to recover from the defaulting party all court costs, reasonable attorneys' fees and expenses incurred by the non-defaulting party in connection with the defaulting party’s default, and interest on past due amounts as set forth in Section 15. In addition, Seller will have the right to maintain a lien on the Goods until payment in full is received by Seller. “Bankruptcy Event” means the occurrence of any of the following events with respect to either Buyer or Seller: (i) filing of a petition or otherwise commencing, authorizing or acquiescing in the commencement of a proceeding or cause of action under any bankruptcy, insolvency, reorganization or similar law; (ii) making of an assignment or any general arrangement for the benefit of creditors; (iii) having a bankruptcy petition filed against it and such petition is not withdrawn or dismissed within 30 days after such filing; (iv) otherwise becoming bankrupt or insolvent (however evidenced); (v) having a liquidator, administrator, custodian, receiver, trustee, conservator or similar official appointed with respect to it or any substantial portion of its property or assets; or (vi) being generally unable to pay its debts as they fall due.

11. Limitation of Liability

1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO EACH OTHER OR TO ANY THIRD PARTY FOR THE COST OF PROCURING SUBSTITUTE GOODS OR SERVICES, LOST PROFITS, LOSS OF USE, LOSS OF DATA OR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, WHETHER UNDER CONTRACT, TORT, WARRANTY OR OTHERWISE, ARISING IN ANY WAY OUT OF THIS OR ANY OTHER RELATED AGREEMENT, WHETHER OR NOT SUCH PARTY HAD ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
2. IN NO EVENT WILL THE CUMULATIVE LIABILITY OF SELLER AND ITS AFFILIATES BE IN EXCESS OF AN AMOUNT EQUAL TO THE LESSER OF (1) THE PAYMENTS RECEIVED BY SELLER IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM BROUGHT BY BUYER UNDER THIS ORDER, OR (2) $150,000 USD, WHETHER ARISING UNDER WARRANTY/GUARANTEE, CONTRACT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION, DEFENSE OR ANY OTHER CAUSE OR COMBINATION OF CAUSES WHATSOEVER. SELLER’S PRICE HAS BEEN NEGOTIATED IN CONSIDERATION OF THE ALLOCATION OF RISKS AND ESTABLISHMENT OF LIMITATIONS OF LIABILITY STATED IN THIS CONTRACT, BUT FOR WHICH SELLER WOULD NOT HAVE ENTERED INTO THE CONTRACT.
3. BUYER’S REMEDIES ARE LIMITED TO THOSE REMEDIES EXPRESSLY STATED IN THIS CONTRACT; AND THESE REMEDIES WILL NOT FAIL THEIR ESSENTIAL PURPOSE BECAUSE BUYER IS LIMITED TO THE EXCLUSIVE REMEDIES AS STATED HEREIN.
4. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

12. IP Infringement

1. Seller will indemnify, defend and hold harmless Buyer from and against all claims, suits and actions (collectively “Claims”) brought against Buyer, and for any direct damages that arise directly from Claims that the Goods infringe the intellectual property rights of a third party. Seller will not be responsible for any infringement to the extent such infringement is the result of (i) use of the Goods in combination with any other products not provided by Seller if the infringement would not have occurred but for such combination, (ii) any alteration or modification of the Goods not undertaken or authorized by Seller if the infringement would not have occurred but for such alteration or modification, (iii) Seller’s compliance with Buyer’s specifications if the infringement would not have occurred but for such compliance, or (iv) Buyer’s failure to comply with Seller’s instructions regarded as necessary to render the Product(s) non- infringing if the infringement would not have occurred if Buyer would have complied with Seller’s instructions. Buyer will indemnify, defend and hold harmless Seller and its officers, directors, employees, successors and assigns (collectively “Indemnitees”) from and against any Claims brought against Indemnitees by any third party based on claims resulting from exceptions (i) through (iv) above.
2. Upon a finding of infringement, Seller will, at its sole discretion, in addition to any indemnification, take one of the following actions: (i) obtain all rights required to permit the manufacture, sale, import, and use of the Goods, (ii) modify or replace the Goods so that they are no longer infringing, or if (i) and (ii) are not commercially reasonable alternatives, (iii) refund Buyer’s purchase price for any Goods found to be infringing and returned to Seller.

13. Intellectual Property

As between the Parties, Seller retains and owns all right, title, and interest in and to (i) all intellectual property rights in and to the Goods, (ii) any software or code owned by Seller or its affiliates that is incorporated into the Goods, (iii) user manuals and documentation provided with or incorporated in the Goods, and (iv) Seller’s Confidential Information, as defined below. Without Seller’s express prior written consent in each instance, Buyer will not, and will not permit any other person or entity to, (i) alter, modify, translate, disassemble, decompile, reverse engineer, copy, reengineer, create derivative works of, or otherwise seek to duplicate the performance or characteristics of, the Goods, Seller’s software, or any of Seller’s intellectual property, or (ii) seek to defeat or circumvent any safety or security feature of the Goods, Seller’s software, or Seller’s intellectual property. Buyer will not, and will not authorize any other person or entity to, remove, obscure, or alter any Seller notices, legends, labels, or marks, including any of Seller’s trademarks, from the Goods.

14. Changes in Specifications or Drawings

All additional expense to Seller due to changes in specifications or drawings and for any Goods furnished in addition to that herein specified, will be added to the purchase price and paid by Buyer.

15. Tooling

1. All special tooling or molds required to produce the Goods shall remain the property of the Seller unless specific arrangements are made otherwise.
2. If tooling is supplied by Buyer (“Buyer Tooling”), Seller will be reimbursed for all maintenance and repair costs that may be incurred, including major repairs, replacement caused by normal wear, polishing or other reworking.
3. If Buyer requests alterations to Buyer Tooling, Buyer will pay for and assume any responsibility connected with such alterations, and will assume any additional expense of production directly caused by such alterations.
4. Molds ordered from or through Seller shall remain in the possession of Seller until the purchase price for the mold has been paid in full. Buyer will provide Seller at least 180 days prior written notice of its intent to remove Buyer’s mold or Buyer Tooling. Buyer will pay Seller for all pieces on hand of good quality made from Buyer’s mold or Buyer Tooling prior to removal from Seller’s possession.
5. Except as provided in Section 15(b), Seller will maintain all molds and tooling in a condition to furnish molded pieces to original specifications; provided that Seller will not be responsible for the replacement of any mold or tooling after the time such mold or tool becomes unusable due to excessive wear.

16. Payment Terms and Revocation of Credit

Invoice payment terms are Net 30 days from invoice date. If the payment due date is not a business day, Seller must receive such payment on the next business day after such due date. Each shipment of Goods and each provision of services is a separate transaction and payment will be made accordingly. Seller may provide Buyer updated Seller payment account directions in writing from time to time. In order to accept and rely on Seller payment account directions, Buyer must confirm Seller’s written payment instructions by a phone call to Seller’s Finance Manager. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed the maximum rate permitted by applicable law, from the date on which it is due until it is paid. Seller reserves the right at any time to revoke any credit extended to Buyer because of Buyer's failure to pay for any Goods when due or for any other reason deemed good and sufficient by Seller, and in such event all subsequent shipments will be paid for on delivery. In addition, Seller may require Buyer to provide collateral in the form of either cash or letter(s) of credit in a form, and from an issuing bank, acceptable to Seller (collectively, “Performance Assurances”), upon notice no later than three business days prior to a scheduled shipment of Goods or provision of services. If Buyer requests delayed shipment, Seller may bill for Goods when ready for shipment and charge reasonable daily storage fees. Buyer shall not be entitled to withhold from Seller payment of any amounts due and payable by reason of any set-off of any claim or dispute by Buyer against Seller or any of its affiliates.

17. Reservation of Rights

Payment by Buyer of any "tooling charge" or other similar expense will not vest any right or title in Buyer, and Seller will have unrestricted right and authority to produce, use and/or sell identical machinery, Goods or Services to others.

18. Export Compliance

1. Buyer hereby agrees to comply fully with all applicable U.S., E.U. and other national sanctions and export control laws and regulations, including those regulations maintained by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”), Department of State, ITAR Regulations, and the U.S. Commerce Department’s Bureau of Industry and Security. Specifically, Buyer covenants that it will not directly or indirectly sell, provide, export, re-export, transfer, divert, loan, lease, consign, or otherwise dispose of any product, services, software, source code, or technology (collectively, “Product”) received from Seller under an Order to any person, entity, or destination, or for any activity or use prohibited by the laws or regulations of the United States without obtaining prior authorization from the competent government authorities, including but not limited to the Dept. of State and/or Dept. of Commerce, as required by those laws and regulations. Buyer will indemnify, defend, and hold harmless Seller from all Claims resulting from Buyer’s failure to comply with this Section 17(a).
2. To the extent required under U.S. law, Buyer further covenants to screen all customers and business partners against all relevant U.S., EU and Canadian Government lists of persons denied export privileges or otherwise subject to trade, export, or financial sanctions, including the U.S. Treasury Department’s OFAC list of SDN, U.S. Department of Commerce “BIS” Denied Persons List and Entity List, U.S. State Department DPL, The Canadian DPL, and the EU Consolidated List before providing or agreeing to provide any Goods to any person.
3. Buyer acknowledges and agrees that Seller’s right to furnish certain products to Buyer is subject to and conditioned upon applicable sanctions and export control laws and regulations, and that Seller will have no liability for acting in a manner Seller deems to be in compliance with such laws and regulations.

19. Anti-Bribery and Corruption Laws

Each Party represents and warrants compliance with all applicable U.S. and foreign anti-bribery and corruption laws and regulations including, but not limited to, the U.S. Foreign Corrupt Practices Act (“FCPA”), the U.K. Bribery Act, The OECD Anti-Bribery Convention and the Brazilian Clean Companies Act. Each Party agrees to defend, indemnify, and hold harmless the other Party from any claims, costs, liabilities, penalties, obligations, and damages such other Party may incur, including without limitation reasonable court, attorney and expert fees, and costs, as a result of such Party’s breach or violation of this warranty.

20. Governing Law

All questions concerning the validity, operation, interpretation, and construction of these Terms and Conditions will be governed by and determined in accordance with the laws of the State of Delaware, without giving effect to its choice of law provisions. Any action or proceeding between Buyer and Seller relating to the Terms and Conditions will be commenced and maintained exclusively in the State or federal courts in Wilmington, Delaware, and Buyer submits itself unconditionally and irrevocably to the personal jurisdiction of such courts. BUYER AND SELLER EACH WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUIT, ACTION, CLAIM OR PROCEEDING RELATING TO THE CONTRACT.

21. Notice

All notices, consents, communications or transmittals under the Terms and Conditions will be in writing and will be deemed received on the day of delivery if personally hand delivered or sent by facsimile or electronic transmission (with written confirmation of the completed transmittal); or within two business days if mailed as certified or registered mail with return receipt, postage prepaid addressed to the party to whom such notice is given at the address of such party stated in the Order.

22. Entire Agreement; Amendment; Waivers

The Terms and Conditions will supersede all prior negotiations, discussions, and dealings concerning the subject matter hereof, and will constitute the entire agreement between Seller and Buyer concerning the subject matter hereof. There are no understandings, inducements, commitments, conditions, representations or warranties of any kind, whether direct, indirect, collateral, express or implied, oral or written, from either party to the other, other than as contained in these Terms and Conditions. Neither party will claim any amendment, modification or release of any provisions hereof unless the same is in writing and signed by both parties. No waiver by Buyer of any breach of any terms, conditions or obligations under the Terms and Conditions will be deemed a waiver of any continuing or subsequent breach of the same or any other terms, conditions or obligations hereunder.

23. Electronic Transactions

The Terms and Conditions may be digitally copied and stored on computer tapes and disks (the “Imaged Agreement”). The Imaged Agreement (once digitally regenerated to paper form), and any facsimile, and all computer records of the foregoing, if introduced as evidence in any judicial, arbitration, mediation or administrative proceedings, will be admissible as between the parties to the same extent and under the same conditions as other business records originated and maintained in documentary form and neither party will object on the basis that such business records were not originated or maintained in documentary form under any rule of evidence.

24. Severability

The invalidity or unenforceability of any provision of the Terms and Conditions will not affect the validity or enforceability of its other provisions, and the remaining provisions will remain in full force and effect.

25. Confidentiality

All information that Buyer acquires from Seller hereunder, directly or indirectly, and all information that arises out of the sale of the Goods, concerning such Goods and/or proprietary processes involved, including information concerning Seller’s current and future business plans, information relating to Seller’s operations, know-how, and other Seller-furnished information will be deemed Seller’s “Confidential Information”. Buyer will (a) hold Seller’s Confidential Information in strictest confidence, (b) not disclose it to others, (c) use it solely for purposes of these Terms and Conditions and (d) upon Seller’s request, either promptly deliver to Seller all such Confidential Information that is in written, electronic or other form, including copies and summaries, or, at Seller’s option, destroy such Confidential Information and provide Buyer certification of such destruction. The obligations under this Section will survive the expiration or termination of these Terms and Conditions.

26. Miscellaneous

The captions and section headings set forth in the Terms and Conditions are used for convenience only and will not be used in defining or construing any of the terms and conditions set forth in the Terms and Conditions. The term “days”, as used herein, will mean actual days occurring, including, Saturdays, Sundays and holidays where banks are authorized to be closed in the city where Seller’s chief executive office is located. The term “business days” will mean days other than Saturdays, Sundays and holidays where banks are authorized to be closed in the city where Seller’s chief executive office is located. The term “including” or any variation thereof means “including, without limitation” and will not be construed to limit any general statement that it follows to the specific items immediately following it. Unless the context indicates otherwise, words importing the singular number will include the plural and vice versa, and words importing person will include firms, association, partnerships and corporations, including public bodies and governmental entities, as well as natural persons, and words of masculine gender will be deemed to include correlative words of the feminine gender and vice versa as the circumstances may require. The United Nations Convention on Contracts for the International Sale of Goods will not apply.