TERMS AND CONDITIONS
DCT MFG
(a division of Diverse Corporate Technologies, Inc.)

I. Acceptance. No terms and conditions other than the terms and conditions contained herein (the “Agreement”) shall be binding upon DCT MFG (“DCT MFG”) unless accepted by it in a writing signed by DCT MFG. All terms and conditions contained in any other oral or written communication which are different from or in addition to the terms and conditions herein are hereby rejected and this document is the complete and exclusive statement of the terms, save for purchase orders (“PO”) submitted by Buyer for the purchase of the items contemplated by this Agreement (the “Products”) which are consistent with this document and which are accepted by DCT MFG.

II. Shipment and Inspection. Subject to any contrary terms contained in a PO which are accepted by DCT MFG, in writing, all Products are shipped F.O.B. DCT MFG’s facility and Buyer shall be responsible for and paying the carrier. Risk of loss and title shall pass to Buyer upon delivery to Buyer’s carrier. The cost of any special packing or handling required by Buyer or the nature of the Products shall be borne by Buyer. Claims for damage, shortage or errors in shipping must be reported within five (5) days following delivery to Buyer. Buyer shall have twenty (20) days from the date Buyer receives any Products to inspect such Products and services for defects and nonconformance which are not due to damage, shortage, or errors in shipping and notify DCT MFG, in writing, of any defects, nonconformance, or rejection of such Products. Buyer hereby agrees that such period is a reasonable amount of time for such inspection. After such twenty (20) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the Products for any reason or to revoke acceptance. Buyer agrees that DCT MFG may over ship Products in any delivery in an amount not to exceed ten percent (10%) of the total order quantity without penalty and with the right to bill for the entirety of such order. Absent gross negligence or willful misconduct on the part of DCT MFG, expedited freight will not be the responsibility of DCT MFG.

III. Force Majeure. DCT MFG shall not be responsible or liable for any cause, event, situation, or agency preventing performance of an obligation under this Agreement which is beyond the reasonable control of any party hereto, and which by the exercise of due diligence could not have been avoided or overcome without undue effort or expense, including without limitation, widespread disease or pandemic (such as COVID-19), acts of governmental authorities (such as quarantines or business shutdowns or other limitations on business operations, or other laws, regulations or orders to address other events or circumstances that would be a Force Majeure under this Agreement), civil commotion (such as riots or protests), cyber attacks (such as hacking, viruses, ransomware or other compromises to IP systems), fire or other casualty, lack of police or fire protection or other governmental services, restrictions or limitations on fuel, transportation or shipping, or the impossibility of the use of railways, aircraft, or other means of public or private transport, failure of public or private telecommunications networks, flood, sabotage, embargo, explosion, war, military actions, terrorist attacks, strikes, labor trouble, material/component shortages or unavailability, accident, other events that materially disrupt business operations or any other event similar in nature, or other acts of God, which shall excuse any failure or delay on the part of DCT MFG, and DCT MFG shall have no obligation or liability whatsoever arising out of or in connection with any such failure or delay.

IV. Molds, Dies, Tools, and Other Equipment. Molds, dies, tools, and other equipment furnished to DCT MFG by Buyer shall be at Buyer’s risk and expense. DCT MFG shall perform or have performed all preventative and basic maintenance to keep the Molds in proper working order and shall invoice the Buyer for all such costs and expenses as incurred. Changes in molds, dies, and tools made necessary by changes in specifications, the design or similar changes in engineering and for any repairs to the Molds, excluding repairs due to damages that are the direct result of gross negligence on the part of DCT MFG, shall be at Buyer’s expense and Buyer shall assume all risk, including any required adjustments in the price of the Products necessitated by the changes in the specifications.

V. Mold Storage/Removal. DCT MFG shall store molds in its possession at its facilities, and the Buyer shall keep the molds insured against any loss or damage while such molds are in DCT MFG’s possession. Buyer will name DCT MFG as the loss payee, and will be responsible for any self-insurance retention or deductible. A removal fee may be charged upon removal of any tool by Buyer. If Buyer fails to remove any tooling or other property from DCT MFG’s facility within a reasonable period (but in no event longer than 30 days) after notice from DCT MFG, then DCT MFG shall be entitled to assess a reasonable storage fee and/or dispose of or return such tooling or property to Buyer at Buyer’s sole expense. Before removal of molds from DCT MFG’s facility, costs incurred by DCT MFG for mold maintenance and repair not otherwise recovered by DCT MFG, shall be paid by Buyer to DCT MFG along with all other costs and amounts due from Buyer to DCT MFG for any specialty or unique raw material, packaging or components specifically to service Buyer. Buyer acknowledges DCT MFG’s right to a molder’s lien with respect to all amounts due DCT MFG, as provided by applicable law. DCT MFG reserves the right to invoice Buyer for all costs and expenses incurred by DCT MFG (including labor costs) in the maintenance and repair of any of Buyer’s tooling upon termination of the supply relationship between the parties.

VI. Price and Payment. A non-refundable deposit of 50% at acceptance of PO and remaining 50% upon fulfillment of PO. DCT MFG reserves the right at any time to suspend, limit or otherwise modify the terms of such credit whenever, in DCT MFG’s opinion, Buyer’s financial condition so warrants (including requiring Buyer to make cash payment prior to or upon tender by DCT MFG of delivery of Products). DCT MFG shall be entitled to all costs of collection (including reasonable attorneys’ fees). Unless otherwise agreed to in writing by DCT MFG, all prices quoted are exclusive of transportation and insurance costs, duties, tariffs, and all taxes including, but not limited to, federal, state, provincial and local sales, excise value added goods and services taxes and any other taxes.

VII. PO Modification/Cancellation. Buyer shall have no right to order any change or modification to any PO or otherwise cancel any PO without DCT MFG’s written consent and payment to DCT MFG of all charges, expenses and reasonable profits owed to or incurred by DCT MFG.

VIII. Limited Warranty. The exclusive and limited warranty provided by DCT MFG hereunder is that the Products will conform to those specifications provided by Buyer and accepted in writing by DCT MFG (the “Warranty”). OTHER THAN THE WARRANTY, DCT MFG MAKES NO WARRANTY WITH RESPECT TO THE PRODUCTS, AND THE BUYER AND DCT MFG HEREBY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. The Warranty applies only to the extent that any nonconforming Products have been properly handled, stored, used, installed and/or maintained. DCT MFG recommends that Buyer independently test the Products to determine suitability for the intended use and of any materials used in the manufacture of the Products (and Buyer is not relying upon DCT MFG to determine said suitability).

IX. Warranty Service: Any claims for breach of warranty shall be made by notifying DCT MFG’s Quality Department in writing and obtaining a Return Material Authorization (“RMA”) Number for the return of the parts (which is to be referenced on all return shipping documents). The warranty service shall be performed at DCT MFG’s facility. In order to receive the warranty service, Buyer must return the defective part within 30 days of notification from Buyer hereunder. All warranty claims will be handled pursuant to DCT MFG’s standard RMA procedures. If DCT MFG determines that the original parts were not defective, Buyer shall reimburse DCT MFG all costs of handling, transportation, and repairs at DCT MFG’s prevailing rates. All defective parts returned under this warranty which are replaced or for which a refund is given to Buyer shall become DCT MFG’s property.

X. Limitation of Liability. In the event that it is determined that the Warranty has been breached, the liability of DCT MFG and the exclusive remedies available to Buyer will be limited to the repair or replacement of the Product by DCT MFG or the return of the purchase price of such Product, as determined by DCT MFG in its sole discretion. SUBJECT TO THE FOREGOING LIMITATIONS, DCT MFG’S LIABILITY FOR ANY OTHER CLAIM RELATING TO THE PRODUCTS OR ANY SERVICE PROVIDED BY IT TO BUYER, WHETHER BASED ON BREACH OF CONTRACT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE NET INCOME EARNED BY DCT MFG FROM THE APPLICABLE PO. IN ADDITION, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS SAVINGS, BUSINESS INTERRUPTION OR LOSS OF ANTICIPATED BENEFITS, ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES AND/OR PRODUCT(S), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

XI. Indemnification. Subject to the limitations on liability set forth in Section X, the parties shall indemnify and hold each other and their respective affiliates, shareholders, members, directors, officers, employees, and agents (“Indemnified Parties”) harmless from and against any loss, liability, damage, or expense, including reasonable attorneys’ fees (“Losses”), such parties may incur as a result or, arising out of or by reason of any breach, misrepresentation, or nonfulfillment on the part of such party of this Agreement. Buyer shall further hold DCT MFG Indemnified Parties harmless from and against Losses resulting from or relating to Buyer’s or Buyer’s customers’ design, use, marketing, distribution, or sale of the Products.

XII. Representations. Buyer represents and warrants that: (a) the Products, their specifications, and their sale or use do not and will not infringe any intellectual property rights of any third party, including, but not limited to, any trade secret, trademark, copyright, or patent (except to the extent designed by DCT MFG), and (b) the marketing, sale, distribution, and use of the Products by Buyer comply and will comply with applicable laws and regulations.

XIII. Improvements. Unless otherwise agreed to in writing by DCT MFG, any and all Improvements shall be the exclusive property of DCT MFG and Buyer agrees to perform all actions necessary or desirable to vest and confirm ownership of Improvements in DCT MFG. “Improvements” shall mean any inventions, developments, enhancements, adaptations, advancements and other intellectual property, whether or not patented or patentable, derived from, associated with or relating to the manufacturing and molding process used for the Products, any component thereof, their tooling, or any production process, technique or procedure which may be discovered, developed, invented or acquired by DCT MFG in whole or in part.

XIV. Lead Time. Delivery lead time will be communicated at the time of order confirmation. Lead times are dependent on machine availability, machine capacity, and material availability.

XV. Miscellaneous. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina (regardless of the laws that might be applicable under principles of conflicts of laws) as to all matters, including, but not limited to, matters of validity, construction, effect and performance. The parties hereby irrevocably consent to the exclusive jurisdiction of the courts of the State of North Carolina, and the federal courts for such jurisdiction, and waive any contention that any such court is an improper venue for enforceability of this Agreement. Buyer acknowledges DCT MFG’s right to a molder’s lien with respect to amounts due hereunder as provided by applicable law. The failure of DCT MFG to insist upon performance of any provision or to exercise any right or privilege granted to DCT MFG in this Agreement shall not be construed as waiving such provision or privilege. The invalidity of any terms or provisions hereof shall not affect the validity of the remaining terms or provisions, and this Agreement shall be construed as if such invalid terms or provisions had been omitted.
XVI. Part Pricing. Product pricing is quoted based on six main variables: price of resin and other purchased components outside of DCT MFG’s control, production scrap, cycle time, geometric dimensioning and tolerancing (“GD&T”) and customer driven changes, part weight, and labor. Product pricing will be reviewed regularly. Future pricing is subject to change upon written notice from DCT MFG based on changes to the six variables discussed herein, as follows:

• Resin and Purchased Component Price: Increase in the cost of resin or purchased components will result in an equitable adjustment of the product price. Substitution of an alternate resin due to obsolescence or availability may also trigger price adjustment.
• Production Scrap: Scrap over the initial estimate may be assessed on future orders by an increase in part price. Examples include mold-caused defects where the Buyer does not wish to pay for the repairs necessary to repair the tool. In such a circumstance, DCT MFG will continue to run in a higher scrap condition yet adjust the part price accordingly.
• Cycle Time: Cycle times that deviate by more than 10% from the estimate will result in an equitable adjustment to the product price.
• GD&T and customer driven design or engineering changes: When such changes require modifications to form, fit, function, or handling, a requote of the price will result.
• Part Weight: When weights are estimated, the product price will be adjusted after actual weight is established through approved sample parts,
• Labor: Changes in the applicable prevailing wage will result in an equitable adjustment to the product price.