PALLITE Inc. Terms and Conditions of Sale – May 2022

      1. Acceptance.  In this document (these “Terms”) Pallite Inc., whether acting on its own or through one of its business units or divisions, or on behalf of or through a parent company or any subsidiary of a parent company, is referred to as “Pallite,” and the customer purchasing products (“Products”) from Pallite is referred to as “Purchaser”. These Terms, any Pallite quote, acknowledgment or invoice and all documents incorporated by specific reference herein or therein (“Pallite Documents” and together with these Terms, the “Agreement”), constitute the complete terms governing the sale of Products. Pallite HEREBY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PROPOSED BY PURCHASER, WHETHER OR NOT CONTAINED IN ANY OF PURCHASER’S BUSINESS FORMS OR IN PURCHASER’S WEBSITE, AND SUCH ADDITIONAL OR DIFFERENT TERMS WILL BE OF NO EFFECT. Commencement of any work by Pallite or Purchaser’s acceptance of delivery of the Products will manifest Purchaser’s assent to the Agreement. Additional or different terms applicable to a particular sale may be specified in the body of the Pallite Documents or agreed to in writing by the parties. In the event of a conflict, the following order of precedence will apply: (a) terms agreed to in writing and executed by an authorized officer of Pallite; (b) Pallite Documents terms; (c) these Terms.


      1. Quotes. Quotes are only valid in writing and for 30 days from the date of the quotation. All quotes are subject to change or withdrawal without prior notice to Purchaser. Quotes are made subject to approval of Purchaser’s credit. Pallite may refuse orders and has no obligation to supply Products unless Pallite issues an order acknowledgement or upon the shipment of Products.


      1. Prices and Payment Terms. Prices are in U.S. Dollars unless otherwise stated in the Pallite Documents and are subject to change without notice. All orders are accepted subject to Pallite’s price in effect at time of shipment. Prices do not include any sales, use, value-added or other taxes, import duties, license fees or like charges (“Fees”) related to the sale, importation, or use of Products, and Purchaser is responsible for those Fees. If Pallite is subsequently required to pay any Fees, Purchaser shall fully defend and indemnify Pallite therefor. If a raw material, component, or service provider raises its prices, or imposes a surcharge on Pallite, Pallite reserves the right to increase prices and/or surcharge Purchaser and Purchaser agrees to accept such price increase or surcharge for the term of such price increase or surcharge or until the termination of the contract to which these terms and conditions apply is reached. Payment terms are as specified in the Pallite Documents and time of payment is of the essence. Overdue invoices will incur interest at the rate of 1.5% per month, or at the maximum rate allowable by governing law. Purchaser’s inspection rights do not affect the payment terms. Under no circumstances will Purchaser have a right of set-off. If Purchaser fails to make any payment as required, Purchaser agrees to indemnify Pallite for all associated costs incurred by Pallite, including reasonable attorney fees and court costs.


      1. Credit Approval. All shipments are subject to approval by Pallite’s credit department. Pallite may invoice Purchaser and recover for each shipment as a separate transaction. If, in Pallite’s sole judgment, Purchaser’s financial condition is or becomes unsatisfactory, then Pallite may, without prejudice to any of its other remedies: (a) defer or decline to make any shipments except upon receipt of satisfactory security or cash payments in advance; and/or (b) terminate any or all of Purchaser’s purchase orders.


      1. Cancellation or Modification. Pallite may cancel any purchase order or release thereunder or terminate any agreement relating to the purchase of Pallite’s Products upon reasonable prior written notice to Purchaser. Once Pallite has accepted a purchase order or begun taking actions with respect to a purchase order, Purchaser cannot cancel or modify that purchase order except with Pallite’s written consent. In such event, Purchaser will be liable for cancellation or modification charges and all costs incurred and committed for the order or in connection with the cancellation or modification, as applicable, together with a reasonable allowance for prorated expenses and anticipated profits.


      1. Inspection / Non-Conforming Shipments. Purchaser may inspect Products for a period of 15 business days after delivery (“Inspection Period”). Purchaser must notify Pallite in writing of any Products that do not conform to the specifications applicable to their sale within the Inspection Period and afford Pallite a reasonable opportunity to inspect such Products and cure any nonconformity. If Purchaser fails to provide Pallite such written notice within the Inspection Period, Purchaser will be deemed to have accepted the Products. Purchaser may not return any Product without Pallite’s prior written authorization. Any return authorized by Pallite must be made in accordance with Pallite’s return policies. Purchaser will be responsible for all costs associated with returns of Products and will bear the risk of loss, unless Pallite agrees otherwise in writing or determines that the Products do not conform to the applicable terms of sale. Any variation in quantities shipped over or under those ordered (not to exceed 10%) will constitute compliance with Purchaser’s order, and the stated price per item will continue to apply.


      1. Delivery, Risk & Title. All Products will be made available for collection FCA Pallite’s facility (Incoterms 2020) unless otherwise stated in the Pallite Documents. Collection dates are approximate and are based upon prompt receipt of all necessary information from Purchaser. Pallite may make items available for collection in a single or multiple shipments. Title to the Products shall only pass to Purchaser upon receipt of full payment from the Purchaser to Pallite. Purchaser assumes all risk and liability for the Products after Products are loaded onto Purchaser’s transport at Pallite’s facility. Until title passes to the Purchaser, they may use the Products but shall maintain them in satisfactory condition and keep them insured against all risks for their full price. Purchaser must notify Pallite within 15 business days from date of collection of Products, of any damage or shortage, and afford Pallite a reasonable opportunity to inspect the Products. Any loss occasioned by damage or shrinkage in transit will be for Purchaser’s account and claims for such loss must be made solely against their carrier.


      1. Warranty. Pallite warrants that it will convey the Products free and clear of all liens, security interests and encumbrances created by, through or under Pallite. Pallite further warrants that for a period of 24 months for PIX™ and 12 months for PIX™ SLOTS Products from the date of delivery, under normal use and given proper storage, installation and maintenance as determined by Pallite, the Products: (a) will conform to Pallite’s specifications for the Products; and (b) will be free from substantial defects in material and workmanship.


      1. In the event of a breach of the warranties set forth above (the “Warranties”), Pallite’s sole liability and Purchaser’s sole remedy will be (at Pallite’s option), for Pallite to repair, replace or credit Purchaser’s account for, any Product or part thereof that fails to conform to the Warranties, provided that (i) during the Warranty Period Pallite is promptly notified in writing upon discovery of such failure with a detailed explanation of any alleged deficiencies; (ii) Pallite is given a reasonable opportunity to investigate all claims; and (iii) Pallite’s examination of such Product confirms the alleged deficiencies and that the deficiencies were not caused by accident, misuse, neglect, improper installment, unauthorized alteration or repair or improper testing. No Products may be returned to Pallite until inspection and approval by Pallite.


      1. The Warranty against defects does not applyto: (1) consumable components or ordinary wear items; (2) use of the Products with equipment, components or parts not specified or supplied by Pallite or contemplated in the Product documentation. EXCEPT AS SET FORTH ABOVE, PALLITE MAKES NO WARRANTY OR REPRESENTATION OF ANY KIND, EXPRESS OR IMPLIED (INCLUDING NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE).




      1. Product Use & Technical Data. Purchaser is solely responsible for determining if a Product is fit for a particular purpose and suitable for Purchaser’s method of application. Accordingly, and due to the nature and manner of use of Pallite’s Products, Pallite is not responsible for the results or consequences of use, misuse, or application of its Products. All physical properties, statements and recommendations are either based on the tests or experience that Pallite believes to be reliable, but they are not guaranteed. Purchaser is solely responsible for ensuring the suitability of Products for its own uses and Purchaser accepts all liability resulting from the Products being exposed to moisture (including precipitation and humidity in the atmosphere).


      1. Except as provided in Sections 6 and 8 hereof, Pallite will neither accept return of Product, nor be responsible for its destruction.


      1. Ownership of Intellectual Property. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights and other information or intellectual property disclosed or otherwise provided to Purchaser by Pallite, and all rights therein (collectively, “Intellectual Property”) will remain the property of Pallite and will be kept confidential by Purchaser in accordance with these Terms. Purchaser has no claim to, nor ownership interest in, any Intellectual Property, and such information, in whatever form and any copies thereof, shall be promptly returned to Pallite upon request from Pallite. Purchaser acknowledges that no license or rights of any sort are granted to Purchaser hereunder in respect of any Intellectual Property, other than the limited right to use Pallite’s Products purchased from Pallite.



      1. Use of Trademarks and Trade Names.Purchaser shall not use, directly or indirectly, in whole or in part, Pallite’s name, or any other trademark or trade name that is now or may hereafter be owned by Pallite (collectively the “Trademarks”), as part of Purchaser’s corporate or business name, or in any way in connection with Purchaser’s business, except in a manner and to the extent authorized herein or otherwise approved by Pallite in writing. Purchaser hereby acknowledges Pallite’s ownership of the Trademarks, and the goodwill associated therewith. Purchaser shall not infringe upon, harm, or contest the validity of any Trademarks. Purchaser shall be entitled to use the Trademarks only in connection with the promotion or sale of the Products pursuant to the terms of the Agreement. Purchaser shall reproduce the Trademarks exactly as specified by Pallite. Purchaser shall not use the Trademarks in combination with any other trademarks or names. Purchaser agrees that it will not register or attempt to register any Trademark or any colorable imitation thereof (including any non-English language variation thereof) or use such Trademarks for any products or for any purposes other than those set forth in the Agreement. Purchaser shall not at any time during or after termination of the Agreement use in its business any other trademark that is similar to or in any way resembles the Trademarks so as to be likely to cause deception or confusion with the Trademarks. Purchaser shall provide reasonable cooperation to Pallite with respect to any efforts of Pallite to protect, defend or enforce its rights to the Trademarks. Should Purchaser cease being an authorized customer of Pallite for any reason, Purchaser shall immediately discontinue any formerly permitted use of Pallite’s name or the Trademarks.


      1. Confidential Information. All information furnished or made available by Pallite to Purchaser in connection with the subject matter hereof shall be held in confidence by Purchaser. Purchaser agrees not to use (directly or indirectly), or disclose to others, such information without Pallite’s prior written consent. Purchaser agrees not to use (or assist other to use) any of Pallite’s confidential information to obtain a commercial advantage over Pallite or to circumvent its interests or take any other action to emulate products developed, manufactured, or supplied by Pallite using any such confidential information. Nothing in the arrangements between the parties operates to licence (or grant any other right to use) any of Pallite’s confidential information to any person.  Purchaser acknowledges that the fact of the disclosure or misuse of Pallite’s confidential information could be damaging to Pallite’s confidential information interests and agrees to hold Pallite harmless in respect of any such disclosure or misuse resulting from Purchaser’s breach of these terms and conditions. The obligations in this section will not apply to any information that: (a) at the time of disclosure was or thereafter becomes generally available to the public by publication or otherwise through no breach by Purchaser of any obligation herein; (b) Purchaser can show by written records was in Purchaser’s possession prior to disclosure by Pallite; or (c) is legally made available to Purchaser by or through a third party having no direct or indirect confidentiality obligation to Pallite with respect to such information.


      1. Infringement and Indemnification. Except as set forth below, Pallite agrees to defend and indemnify Purchaser against any claims, costs, damages, liability and expenses resulting from actual patent, trademark or copyright infringement, misappropriation of confidential information, or violation of any other Intellectual Property right, domestic or foreign that may arise from the sale of Pallite’s proprietary Product to Purchaser as such pertains to the subject matter of the Agreement (each, a “Claim”); provided, however, (a) Purchaser supplies Pallite written notice of such Claim immediately after the Purchaser has notice of such Claim, (b) Purchaser cooperates with Pallite in the defense and settlement of such Claim; and (c) Purchaser allows Pallite the right to defend and settle such Claim at Pallite’s expense. If a suit or claim results in any injunction or order that would prevent Pallite from supplying any part or Product falling under the Agreement, or if the result of such a suit or claim would, in the reasonable opinion of Pallite, otherwise cause Pallite to be unable to supply such parts or Products, Pallite may do one or more of the following: (i) secure an appropriate license to permit Pallite to continue supplying those parts or Products; (ii) modify the appropriate part or Product so that it becomes non-infringing; (iii) replace the appropriate part or Product with a non-infringing but practically equivalent part or Product; or (iv) if Pallite cannot reasonably accomplish the actions specified in subsections (i) – (iii), then in Pallite’s sole discretion, Pallite may discontinue selling the part or Product without any further liability to Purchaser. Notwithstanding the foregoing, Pallite shall have no liability or duty to defend and indemnify Purchaser against any Claim relating to: (1) the use of any part or Product, (2) the combination of any part or Product with any other part or product not supplied by Pallite, or (3) any part or Product or process that is designed or specified by Purchaser.


      1. Pallite Employees. Pallite sales employees do not have the training or authority to make legal representations or enter into any agreements or execute any Purchaser documents affecting legal responsibilities or waiving legal rights, including those regarding the transfer of intellectual property rights or related to privacy laws. Any such representations, agreements or documents will not be binding on Pallite or such Pallite employees.


      1. Third Party Rights. With the exception of Pallite’s business units, divisions, parent company or appointed contract manufacturers, a person who is not a party to the Agreement shall not have any rights under or in connection with it.


      1. Compliance. Purchaser agrees to comply with all federal, state, local and foreign rules, regulations, ordinances, and laws applicable to Purchaser’s obligations hereunder and Purchaser’s use of the Products, including import/export laws, labor laws and anti-corruption laws.


      1. Relationship of the Parties. Nothing in the Agreement or the course of dealing of the parties may be construed to constitute the parties hereto as partners, joint venturers or as agents for one another or as authorizing either party to obligate the other in any manner.


      1. Force Majeure. Pallite will not be responsible for failure to perform in a timely manner under the Agreement when its failure results from events beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of Pallite’s employees or the employees of others), failure of energy sources or transport network, raw material shortages and material increases in costs of raw materials. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable Pallite to perform.


      1. Assignment; Binding Effect. No assignment of any rights or interest or delegation of any obligation of Purchaser under the Agreement or Purchaser’s purchase order may be made without Pallite’s prior written consent. Any attempted assignment will be void. Pallite may assign the Agreement or otherwise transfer its rights and/or obligations under the Agreement. The Agreement will inure to the benefit of and be binding upon the parties and their respective permitted successors and assigns.
      2. Remedies Upon Default; No Waiver. In the event of any default by Purchaser, Pallite may decline to ship Products, or may take any other commercially reasonable actions allowed by law. If Pallite elects to continue shipping or otherwise fails to insist upon strict compliance with the Agreement, Pallite’s actions do not constitute a waiver of Purchaser’s default or any other or future default or affect Pallite’s legal remedies.


      1. Bankruptcy. If either party becomes insolvent, is unable to pay its debts when due, files for or is the subject of involuntary bankruptcy, has a receiver appointed or has its assets assigned, the other party may cancel any unfulfilled obligations hereunder.



      1. Choice of Law/ Limitation of Actions/Litigation Costs. Any dispute arising out of or related to the Agreement will be governed by and construed according to the laws of the state of Delaware and litigated exclusively in a state or federal court located in Delaware. Notwithstanding any contrary statute of limitations, any cause of action for any alleged breach of these terms and conditions by Pallite shall be barred unless commenced by the Purchaser within one (1) year from the accrual of such cause or action. The parties hereto expressly release and waive any and all rights to a jury trial and consent to have any dispute heard solely by a court of competent jurisdiction.  The parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the Agreement. If either party commences litigation or mutually agreed upon alternative dispute resolution concerning any provision of the Agreement, the prevailing party is entitled, in addition to the relief granted, to a reasonable sum for their attorney’s fees in such litigation or mutually agreed upon alternative dispute resolution, provided that if each party prevails in part, such fees will be allocated in the manner as the court or arbitrator determines to be equitable in view of the relative merits and amounts of the parties’ claims.


      1. Survival. Any provisions in the Agreement which, by their nature, extend beyond the termination or expiration of any sale of Products, will remain in effect until fulfilled.


      1. Severability. If any provision of the Agreement is held to be unlawful or unenforceable, the remaining provisions of the Agreement will remain in effect.
      2. Integration and Modification. The Agreement constitutes the entire agreement between Pallite and Purchaser with respect to the Products covered by the Agreement, and supersedes any prior agreements, understandings, representations, and quotations with respect thereto. No modification hereof will be of any effect unless in writing and signed by the party bound thereby.

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