Sales Terms and Conditions - Akervall Technologies

1. Acceptance of Terms; Governing Documents.

1.1 Seller has set out in this document Seller’s basic terms and conditions (together with any conditions contained in the quotation, if any, Seller previously furnished to Buyer, “Terms”) that will exclusively govern the sale of Seller’s products to Buyer (“Transaction”). If Buyer provides Seller with any pre-printed terms and conditions that appear on any purchase order or other form document, they are rejected and will be of no force or effect. These Terms are deemed a part of and incorporated by reference into Seller’s published Price List, as it is revised from time to time (“Price List”), and all other documents exchanged between Seller relating to the sale and purchase of Seller’s products, whether electronic or in writing, including, without limitation, all quotations, acknowledgements, packing slips, invoices and purchase orders.

1.2 Seller’s acknowledgement and acceptance of Buyer’s order for Seller’s products is expressly limited to and made conditional upon Buyer’s acceptance of these Terms. Seller deems material, objects to and rejects any of Buyer’s terms and conditions that are in addition to or different from these Terms unless Seller has expressly agreed to them in writing (other than additional provisions specifying quantity, description of the products ordered and shipping instructions). Unless otherwise agreed in writing, Seller will deem Buyer to have waived any objection to these Terms if Seller has not received written notice of such objection within ten (10) days of the date of Buyer’s order. In any event, Buyer will be deemed to have agreed to these Terms if Buyer accept any portion of the products Buyer order from Seller.

1.3 Buyer acknowledge that the prices Seller has quoted are predicated on the enforceability of these Terms, that the price would be substantially higher if these Terms did not apply, and that Buyer accept these Terms in exchange for such lower prices.

2. WARRANTY AND DISCLAIMER. All products are subject to the standard 30-day return policy available here: https://www.sisuguard.com/order-return-information/ (“Return Policy”). Fulfillment of Seller’s obligations under the Return Policy to the purchasers of Seller’s products (or their permissible transferees) is Seller’s sole warranty obligation for Seller’s products. EXCEPT AS EXPRESSLY PROVIDED IN THE RETURN POLICY SELLER DISCLAIMS ALL WARRANTIES TO BUYER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

3. Limitation of Remedies. Buyer’s sole and exclusive remedy against Seller for any breach of Seller’s obligations under these Terms or the Return Policy, or based on any other theory of liability, will be limited to, at Seller’s option, Seller’s repair or replacement of any nonconforming product for which Buyer make a claim or Seller’s issuance of a credit for such nonconforming product in accordance with these Terms, the Return Policy and any instructions Seller may give Buyer for the return of the product or otherwise. Buyer must obtain a return authorization from Seller and give Seller a reasonable opportunity to inspect the product and confirm the nonconformity. This exclusive remedy will not be deemed to have failed of its essential purpose so long as Seller are willing and able to repair or replace the nonconforming product and, in any event, Seller’s liability for any damages due Buyer will be limited to the then-current wholesale price of the nonconforming products, regardless of whether other damages Seller were foreseeable. THIS PARAGRAPH STATES BUYER’S SOLE AND EXCLUSIVE REMEDIES.

4. LIMITATIONS ON ACTIONS AND LIABILITY. Buyer agrees that all of Buyer’s claims arising under these Terms will only be valid for one (1) year from the date of Buyer’s purchase. SELLER WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM DELAY IN DELIVERY OF THE PRODUCTS OR FOR ANY FAILURE TO PERFORM WHICH IS DUE TO

CIRCUMSTANCES BEYOND SELLER’S CONTROL OR THE CONTROL OF ITS SUPPLIERS, INCLUDING WITHOUT LIMITATION FAILURE OR DELAY IN TRANSPORTATION, ACTS OF ANY GOVERNMENT OR ANY AGENCY OR SUBDIVISION THEREOF, JUDICIAL ACTION, LABOR DISPUTES, FIRE, ACCIDENT, ACTS OF NATURE, SHORTAGE OF LABOR, FUEL OR RAW MATERIAL, OR MACHINERY OR TECHNICAL FAILURE. SELLER’S MAXIMUM LIABILITY, IF ANY, FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER’S BREACH OF THESE TERMS, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT WITH RESPECT TO THE PRODUCTS, IS LIMITED TO AN AMOUNT NOT TO EXCEED THE THEN-CURRENT WHOLESALE PRICE OF THE PRODUCTS. IN NO EVENT WILL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IN THIS PARAGRAPH IS BUYER’S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT THE REMEDY IN PARAGRAPH 3 FAILS OF ITS ESSENTIAL PURPOSE.

5. Buyer is permitted to market for sale or sell the products through websites owned or operated by Buyer; provided however, that such websites identify Buyer’s full legal name, mailing address, telephone number and email address. Seller, in its sole discretion, may revoke Buyer’s authorization to sell the products on such websites at any time, and Buyer shall cease marketing for sale and/or selling the products on such website immediately upon notice of such revocation. Buyer shall not sell the products on or through any other website, including any third-party marketplace website such as Amazon, eBay, Jet, Rakuten, Walmart Marketplace, or Sears Marketplace, without the prior written consent of Seller, which is granted solely by Seller in its discretion. No Seller employee or agent can authorize online sales through oral statements, other written agreement, or by any other means.

6. Prices, Terms, Shipment, and Delivery Schedules.

6.1 Unless Seller otherwise agrees in writing, or as may otherwise be provided on the face of Seller’s invoice, Buyer will pay the prices for the products in effect at the time of shipment and all prices are Net 30 Days. No cash discount is allowed unless Seller otherwise specifies to Buyer in writing, and Buyer may not setoff or assert a counterclaim unless Seller agrees in writing. In addition to the prices specified, Buyer agree to pay any federal, state or local excise, use, occupational or similar tax, now in force or to be enacted in the future, assessed against Buyer or Seller due to a transaction.

6.2 Unless Seller otherwise agrees in writing, shipments will be by a carrier and by the route selected by Seller; the carrier will act as Buyer’s agent; delivery by Seller to such carrier will constitute delivery to Buyer; and all shipments under Buyer’s order will be made F.O.B. Seller’s shipping point, at which time title and all risk of loss will pass to Buyer, provided that Seller will retain, and Buyer hereby grant to Seller, a security interest in any products Seller ship to Buyer until the full purchase price is paid by Buyer. Buyer will pay all freight charges and assume the risks of transportation, including delay, damage and loss, unless Seller otherwise agrees in writing. The promised delivery date is Seller’s best estimate possible of when Seller will ship the products.

6.3 All products destined for re-sale must not be advertised at any price lower than the Minimum Advertised Prices (“MAPs”) listed below:

(a) SISU Max guard = $29.99 USD

(b) SISU 3D guard = $24.99 USD

(d) SISU GO guard = $9.99 USD

(e) SOVA Max Night Guard = $29.99 USD

(f) SOVA Max Night Guard with Case = $34.99 USD

(g) SOVA Night Guard (3D) = $24.99

(h) SOVA Night Guard (3D) with Case = $24.99

(i) SOVA Aero Night Guard = $19.99

(j) SOVA Aero Night Guard with Case = $24.99

(k) SOVA Junior Night Guard = $19.99

(l) SOVA Junior Night Guard with Case = $24.99

(m) Case accessory = $8.99

(n) Fresh accessory = $8.99

(o) Heat Pack = $5.00

An advertisement includes any and all promotional or pricing information accessible to consumers via any type of media, marketing, or promotional materials, including, without limitation:

• Flyers, posters, coupons, mailers, inserts, newspapers, magazines, catalogs, mail order catalogues, internet or similar electronic media including web sites, email and email solicitations, newsletters, television, radio, public signage, trade shows, billboards; and

• All forms of Internet advertising, including, without limitation, all websites and website pages and banners, social media, emails, blogs, portal sites, and search engines (including but not limited to Google, Google Shopping, Yahoo, etc.) whether or not products are sold from those sites. This includes prices listed in emails, search engines or placement of ads on any other website, including natural or paid search engine listings, shopping sites, marketplaces and auction sites. Internet sites that ask customers to utilize their shopping cart as a way of displaying pricing are in violation of this Policy. At no time may the Buyer make any statement on its website or other sites in connection with any product that indicates or implies that a lower price may be found at the online checkout stage. Moreover, using another company’s website to display a lower price than the MAP and offering a link to your website or to display a lower price than MAP is prohibited.

Direct or indirect attempts to circumvent this Policy will be considered a violation of this Policy. Such attempts may include, but are not limited to:

• The use of any discount, gift card, coupon, giveaway, rebate offer or incentive (whether in the form of a special event, promotion, condition to doing business or otherwise) in any advertising by a Buyer where the cumulative effect is to reduce the advertised price of any product(s).

• Advertisements that bundle or include free or discounted Seller products with other products or services (whether or not manufactured by Seller) if such bundling has the effect of discounting the advertised price of the Seller product below the MAP. In the case of bundles, the advertised price of the bundle must be equal to or greater than the total of the MAP of each product (from Seller or from other manufacturers) in such bundle. If other products in the bundle do not have a MAP, then its retail price must be used. Other products may be advertised as giveaways with the purchase of any Seller product, but the advertised value of such give-away shall not exceed the MAP price for Seller plus the MAP or SRP of the other product.

• For multipack offers the MAP of the multipack is the quantity of product in the multipack multiplied by the respective MAP of the products that comprise said multipack.

An “advertisement” shall not include any in-store advertising that is displayed only in the store and not distributed to any customer. In-store displays, point-of-sale signs, hangtags or bar codes or similar marks on products or product packaging that merely states the related product’s price are not considered “advertising.” Discontinued merchandise approved by Seller are excluded from the MAP Policy. This MAP Policy does not establish maximum advertised prices. All Buyers may offer products at any price in excess of the respective product MAP.

7. Variations in Quantities, Shortages and Allocation.

7.1 Deliveries scheduled to be made by Seller over an extended number of shipments may vary from Buyer’s order in quantities not to exceed ten percent (10%), plus or minus, of each product involved (unless otherwise agreed to in writing) and Seller will adjust the billing accordingly.

7.2 In the event of receiving discrepancies, these must be documented via photograph and brought to the attention of Seller within thirty (30) days receipt of the products for resolution. All claims submitted after this thirty (30) day period will not be accepted. In the event of a shortage or other contingency due to circumstances beyond Seller’s control or the control of Seller’s suppliers, Seller may allocate production and deliveries among Seller’s customers in such manner as Seller determine in Seller’s sole discretion.

8.Product Care & Quality Controls. Buyer shall care for the products as set forth herein.

Product Inspection. Buyer shall inspect the products upon receipt and during storage for damage, defects, broken seals, evidence of tampering or other nonconformance (collectively, “Defects”). If any Defects are identified, Buyer must not offer the product for sale and must promptly report the Defects to Seller.

Product Storage and Handling. Buyer shall exercise due care in storing and handling the Products, store the products in a cool, dry place, away from direct sunlight, extreme heat, and dampness, and in accordance with any additional storage guidelines specified by Seller from time to time.

Recalls and Consumer Safety. To ensure the safety and well-being of the end-users of the products, Buyer shall cooperate with Seller with respect to any product recall or other consumer safety information dissemination effort.

Alterations & Bundling Prohibited. Buyer shall sell products in their original packaging, with all seals intact. Buyer shall not sell or label the Products as “used,” “open box” or any other similar descriptors. Relabeling, repackaging (including the separation of bundled products or the bundling of products), misbranding, adulterating, and other alterations are not permitted. Buyer shall not tamper with, deface, or otherwise alter any batch code or other identifying information on products or packaging. Buyer shall not remove or destroy any copyright notices, trademarks or other proprietary markings on the products, documentation, or other materials related to the products. Removing, translating, or modifying the contents of any label or literature accompanying the products is prohibited. Buyer shall not advertise, market, display, or demonstrate non-Seller products together with the products in a manner that would create the impression that the non-Seller products are made by, endorsed by, or associated with Seller.

Customer Service & Product Representations. Buyer and Buyer’s sales personnel shall familiarize themselves with the features of all products marketed for sale and must obtain sufficient product knowledge to advise end-user customers on the selection and safe use of the products, as well as any applicable warranty or return policy. Buyer must make itself available to respond to customer questions and concerns both before and after sale of the products and should endeavor to respond to customer inquiries promptly. Buyer and Buyer’s agents must represent the products in a professional manner and refrain from any conduct that is or could be detrimental to the reputation of Seller. Buyer agrees to cooperate fully with Seller in any investigation or evaluation of such matters.

9. Patent or Trademark Infringement. If the products Seller sells to Buyer are manufactured according to Buyer’s specifications, Buyer will defend, hold harmless and indemnify Seller against any claims, liability, costs or attorneys’ fees incurred in relation to any claim arising out of Buyer’s specifications or design, including any claims for patent, trademark or other intellectual property infringement.

10. Confidentiality. If Buyer’s personnel visit Seller’s facility(ies) or Buyer otherwise receives any proprietary or non-public information from Seller, Buyer will retain and treat such information as confidential and will not use or disclose such information to any third party without Seller’s prior written consent. Upon termination of these Terms or an order, Buyer shall return the proprietary and non-public information to Seller and shall not Sellere such information for Buyer’s own or a third party’s benefit.

11. Credit Approval and Past Due Accounts. Buyer will furnish to Seller all financial and related information reasonably requested by Seller from time to time for the purpose of establishing or continuing Buyer’s credit limit. Shipment and delivery of products will at all times be subject to the approval of Seller’s credit department, and Seller may at any time decline to make any shipment or delivery except upon receipt of payment, Buyer’s providing security acceptable to Seller or upon other terms and conditions satisfactory to Seller. Buyer agrees that Seller may file a uniform commercial code financing statement with respect to the products in order to protect Seller’s interest in such products until Buyer makes payment in full. Seller will be entitled to collect from Buyer interest on all past-due accounts at the rate of 1.5% per month, not to exceed the maximum rate of interest allowed by law.

12. Cancellation and Returned Goods. Buyer may cancel orders only with Seller’s written approval. Buyer will need Seller’s approval, and Seller’s issuance of a return authorization, before returning any products to Seller. If Buyer cancels an order, in whole or in part, that incorporates special material, parts, components or other items that Seller do not typically buy, sell or use in connection with Seller’s standard product offerings (i.e., a nonstandard special order), Buyer will pay Seller: (a) the previously agreed upon price of all completed items; (b) that portion of the agreed upon price that is equal to the greater of Seller’s actual cost or the percentage of completion of products in process, effective on the date Seller receives Buyer’s notice of cancellation; (c) the cost of any materials and supplies that Seller has purchased in order to perform and which Seller cannot reuse for other or similar purposes or readily resell at Seller’s full cost; and (d) charges for cancellation of tool orders or tool removal charges.

13. Termination. If Seller defaults on a material obligation, Buyer will provide written notice to Seller specifying Seller’s default and Seller shall have thirty (30) days to remedy such default. If such default is not excusable under any provision of these Terms, and Seller has not remedied such default within thirty (30) days after Seller’s receipt of such notice of default, Buyer may terminate the uncompleted portion of the transaction, in whole or in part, by providing fifteen (15) days’ prior written notice of termination to Seller, during which Seller shall have the right to cure such default. If Seller delivers nonconforming products to Buyer, Buyer will have the rights set forth in Paragraph 3 of these Terms but such delivery will not be deemed a default for which Seller’s performance may be terminated. In the event that Buyer fails to perform any of Buyer’s obligations under these Terms and/or any order, and Buyer fails to cure such breach within ten (10) days after receipt of written notice from the Seller specifying such breach, Seller may, at Seller’s option, immediately terminate these Terms and/or the applicable order(s) upon written notice to Buyer. Upon any such termination by Seller: (a) Seller shall be relieved of any further obligation to Buyer under these Terms and any applicable order(s) (including, without limitation, any obligation with respect to delivery or transition of supply); (b) Buyer shall be liable to Seller for the immediate payment of amounts then billed to date by Seller to Buyer; (c) Buyer shall purchase and pay Seller immediately for all raw materials, components, work in process and finished goods acquired by Seller in connection with all orders; and (d) Buyer shall immediately reimburse Seller for all of Seller’s other losses, costs or expenses as a result of the termination of these Terms or any order(s).

14. Assignment. Buyer cannot assign any order or any claim against Seller arising directly or indirectly out of or in connection with an order without Seller’s prior written consent. Seller may assign, without consent, any transaction and these Terms to any subsidiary or affiliate or to an entity or person that acquires all or substantially all of the business to which the transaction and these Terms relate.

15. Patents, Inventions, Technical Data and Indemnification. Seller owns and shall retain all rights, title and interests, including all intellectual property rights, in and to all products and associated materials, including, without limitation, all related reports, specifications, drawings, designs, computer programs and any other property, tangible and intangible, furnished by Seller in connection with or under these Terms or the applicable order (collectively, “Proprietary Materials”). No Proprietary Materials created by Seller in connection with or pursuant to these Terms or any order shall be considered “works made for hire” as that term is used in connection with the U.S. Copyright Act. Nothing herein shall be deemed a license or transfer of any rights in Proprietary Materials to Buyer. Buyer does not and will not acquire ownership of or any other rights in Seller’s patents, inventions, technical data and/or other intellectual property (such as brands, trade names and copyrights) under any order, regardless of when such patents, inventions, technical data and/or other intellectual property may be or have been issued, conceived, generated or produced. Seller reserves all of Seller’s rights in Seller’s patents, inventions, technical data and/or other intellectual property and Buyer will not reproduce or use it for any purpose whatsoever without Seller’s prior written permission. Seller may provide technical assistance and information to Buyer in connection with the sale of Seller’s products but such technical assistance and information are furnished for Buyer’s accommodation and Buyer are solely responsible for Buyer’s business, including the application of such information, using Buyer’s own technical expertise and know-how. Buyer shall indemnify, defend and hold harmless Seller and Seller’s affiliates, and their respective officers, directors, employees and agents, from and against all liabilities, losses, claims, costs and expenses (including reasonable attorneys’ fees) related to any claim, investigation, litigation or proceeding (whether or not Seller are a party) that arises or is alleged to arise from Buyer’s acts or omissions under these Terms or in any way with respect to Seller’s products.

16. Remedies. Seller’s rights and remedies will be cumulative and additional to all other remedies provided by law or equity. Seller will be entitled to recover costs and attorneys’ fees in the enforcement or defense of any rights under these Terms or with respect to any transaction. Buyer’s rights and remedies set forth in these Terms are exclusive and in lieu of all other rights and remedies provided by law or in equity. Specific performance shall not be available to Buyer as a remedy in connection with Seller’s providing of the products.

17. Programs. All allowances, rebates, incentives and/or other amounts that Seller offers to Buyer from time to time (collectively “Programs”) are earned and payable only if Buyer’s accounts (including those of Buyer’s subsidiaries and affiliates) are current with Seller and Seller’s subsidiaries and affiliates. In addition, Programs are not earned or payable if the ratings issued by any agency, such as S&P, Moody’s or Fitch, relating to Buyer’s company or Buyer’s parent, subsidiaries or affiliates are lower than investment grade quality. Any earned payment may be withheld or be used to satisfy any of the accounts or other obligations to Seller and/or its subsidiaries and affiliates.

18. Governing Law and Forum. These Terms and each transaction will be construed and interpreted, and the rights of the parties determined, in accordance with the laws of the State of Michigan without regard to any conflict of laws provisions that might otherwise apply. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms or any transaction. Buyer agrees to exercise any right or remedy in connection with these Terms or Buyer’s orders exclusively in, and Buyer agree to submit to the jurisdiction of, the appropriate state or federal court of Washtenaw County, State of Michigan. FOR THEIR MUTUAL BENEFIT, BUYER AND SELLER WAIVE ANY RIGHT TO TRIAL BY JURY IN THE EVENT OF LITIGATION REGARDING THE PERFORMANCE OR ENFORCEMENT OF, OR IN ANY WAY RELATED TO, THESE TERMS AND/OR ANY ORDER(S).

19. Force Majeure. Seller shall not be liable for any delay or failure to perform if such delay or failure to perform is caused by circumstances beyond Seller’s reasonable control, including without limitation acts of God or public authority, riots or other public disturbances, labor shortages or disputes of any kind, financial constraints, power shortages or failures, Buyer’s failure to provide required information, Buyer’s failure to provide adequate containers, or the change in cost or availability of raw materials, components or services based on market conditions, Seller’s actions or contract disputes. During any such delay or failure to perform by Seller, Seller’s obligations under these Terms shall be suspended and Seller shall not have any obligation to provide Buyer with products from other sources or to pay or reimburse Buyer for any additional costs to Buyer of obtaining substitute products. Seller may, during any period of shortage due to any of the above circumstances, allocate Seller’s available supply of products among Seller’s customers in any manner that Seller deem fair and reasonable in its sole discretion.

20. Entire Agreement. These Terms contain Seller’s entire agreement relating to each transaction. These Terms may not be waived, changed, modified, extended or discharged except by an agreement in writing that is signed by an authorized representative of the party against whom enforcement of any such waiver, change, modification, extension or discharge is sought.