LPMS USA Terms and Conditions Governing Sales

1. GOVERNING PROVISIONS.

These LPMS USA Terms and Conditions Governing Sales (the “Agreement”) govern the sale of all Products sold by LPMS USA (“LPMS USA”). LPMS USA offers and agrees to sell to Buyer the products, materials, bulk materials, molds and tooling, equipment, components, parts, and other goods and services (collectively, the “Products”) identified in the Quotation, Acknowledgment, Invoice and all other commercial documents provided by LPMS USA herewith or hereafter (collectively, “LPMS Document(s)”) on the terms and conditions set forth herein. Buyer accepts all of the terms of this Agreement and agrees that this Agreement supersedes all of the terms and conditions contained in any of Buyer’s orders, purchase orders, change orders, and other commercial documents. Buyer may not amend, supplement, replace, change, renounce or waive this Agreement or any term or condition contained herein, even if Buyer’s terms recite that any action or inaction by LPMS USA constitutes agreement or consent by LPMS USA to Buyer’s terms. LPMS USA objects to and rejects any additional, different or varying terms proposed by Buyer, and LPMS USA’s offer shall be deemed accepted without any such additional, different or varying terms.

2. ACCEPTANCE.

Buyer shall be deemed to have made an unqualified acceptance of the terms of the offer contained in the LPMS USA Quotation and other LPMS Documents upon the earliest to occur of the following (i) LPMS USA’s receipt of Buyer’s written order or other agreement to purchase the Products identified in the LPMS Documents. Buyer’s order or agreement may be communicated by any commercially reasonable means, including, without limitation, via electronic transmission, scanning or fax, or by Buyer’s separate signed agreement or other acknowledgment; (ii) Buyer’s payment of any amounts due under the LPMS Documents or this Agreement; (iii) Buyer’s delivery of any materials or components to be furnished by Buyer to LPMS USA thereunder; (iv) LPMS USA’s delivery to Buyer of any Products referenced therein; or (v) any other event constituting acceptance under applicable law. LPMS USA Quotations are void unless accepted within 30 days from date of issue. LPMS USA’s printed and digital publications are maintained as sources of general information and are not quotations or offers to sell.

3. ORDERS; CANCELLATION OR MODIFICATION; RETURNS.

(a) Orders. Buyer shall ensure that its orders (also referred to as purchase orders herein) are received by LPMS USA not less than 30 working days before the requested delivery dates. LPMS USA shall have the right to accept or reject purchase orders in its sole discretion. Buyer’s orders or mutually agreed change orders shall be subject to all provisions of this Agreement, whether or not the order or change order so states. Minimum order quantity is $100 per order or blanket release.

(b) Cancellation or Modification. All Buyer purchase orders are firm and noncancellable upon the earliest to occur of: (i) LPMS USA receiving a purchase order for any Products from Buyer, (ii) LPMS USA placing an order for any Products, or materials, parts, or components thereof, with its Suppliers, to fulfill Buyer’s order or Buyer’s forecast (if the forecast anticipates a delivery within less than ninety (90) days thereafter), or (iii) LPMS USA purchasing or manufacturing any Products, materials, parts, or components thereof, for that Buyer order. Buyer may not cancel or modify any order except upon terms accepted by LPMS USA in advance and in writing, as cancellation and modification requests are subject to LPMS USA receiving approval from its suppliers, including, without limitation, LPMS International (“Supplier(s)”). In the event of an agreed cancellation or modification, Buyer shall compensate LPMS USA for all costs and damages resulting therefrom, including, but not limited to, out-of-pocket expenses, lost profits, restocking fees, and any other fees and charges imposed by LPMS USA’s Suppliers.

(c) Returns. No Products may be returned to LPMS USA without its prior written authorization and Products may be returned only on the terms specified in such authorization. Returned Products must be of current manufacture, unused, in resalable condition, securely packed, and received by LPMS USA without damage. Any cost incurred by LPMS USA to put Products in first class condition will be charged to Buyer. All Product returned to LPMS USA shall be subject to a 25% or greater restocking charge (depending on Supplier restocking policies) with a minimum restocking charge of $40.00, plus the costs of freight, packaging, insurance and any import or export costs.

4. DELIVERY.

(a) Generally. Unless previously agreed by LPMS USA and Buyer in writing, for shipments within the United States, LPMS USA shall deliver the Products F.O.B. LPMS USA dock, Downers Grove, Illinois (the “LPMS Facility”). For international shipments, unless previously agreed by LPMS USA and Buyer in writing, LPMS USA shall deliver the Products EXWORKS (INCOTERMS 2020), LPMS Facility. Packaging and delivery shall be made in accordance with LPMS USA’s policies in effect on the date of delivery. Buyer shall pay for all costs of transportation and insurance. All risk of loss, damage or delay, and title to Products, shall pass from LPMS USA to Buyer upon delivery at the LPMS Facility. Partial shipments shall be permitted. Buyer shall accept overrun and/or under runs not exceeding 20% of quantity ordered, to be paid for pro rata. Buyer shall fully insure all Products from time of LPMS USA’s delivery until LPMS USA is paid in full.

(b) Delivery Dates. All delivery dates are approximate. Time of delivery is not of the essence. Delivery dates given by LPMS USA are based on prompt receipt of all necessary information regarding the order. LPMS USA will use reasonable efforts to meet such delivery dates but does not guarantee that it will meet such dates. Failure by LPMS USA to meet any delivery date does not constitute a cause for cancellation by Buyer or grounds for damages of any kind.

(c) Delivery Delays. If any LPMS USA delivery is delayed as a result of a Force Majeure Event, as defined in Section 12.(e), LPMS USA the option to extend the term of delivery by a period equal to the length of such Force Majeure Event, or to modify or cancel deliveries and orders as provided in Section 12(e). In the event of a delay in delivery (i) requested by Buyer, or (ii) caused by Buyer, including, without limitation, Buyer’s failure to supply adequate instructions, failure to arrange for delivery, failure to make any payment of expenses or charges required for timely shipment, failure to supply or approve necessary data in a timely manner, or failure to provide documents required by LPMS USA to effect delivery, or (iii) resulting from Buyer’s requested changes or change orders (collectively, i.-iii., “Buyer Delay”), Buyer shall be liable for all damages and losses arising from such Buyer Delay. In such cases, LPMS USA will store all Products at Buyer’s risk and expense, and Buyer shall pay all storage costs and expenses immediately upon receipt of LPMS USA’s invoice. In the event of Buyer Delay, LPMS USA shall be entitled to deliver the Products to Buyer immediately upon the expiration of sixty (60) calendar days after the original scheduled delivery date for such Products. Payment shall be due as provided in Section 6.

(d) Buyer Duty to Inspect and Related Claims. Buyer shall open, inspect, and test all Products immediately upon receipt at the destination designated in the shipping documents. Product receipt is confirmed or stated in tracking information provided by a common carrier or similar service and may not be disputed by Buyer. LPMS USA classifies its Products as (i) consumable materials, (ii) molds and tooling, (iii) capital equipment, and (iv) Contracted Products, as defined in Section 4.(e) below. Products are deemed accepted, depending on the Product classification, as follows: (A) with respect to consumable materials, Buyer must inspect such Products and notify LPMS USA, in writing, of any claims for defects, damages, nonconformities, shortages or other errors (collectively, “Defects”) within one (1) calendar day after confirmed receipt at the destination designated for such order; and (B) with respect to molds and tooling, capital equipment, Contracted Products, and Buyer Assemblies, Buyer must inspect such Products and notify LPMS USA, in writing, of any claims for Defects within ten (10) calendar days after confirmed receipt at the destination designated for such order. The foregoing deadlines, (A) and (B), govern all patent and latent Defects. All claims for Defects with respect to each Product must be made in writing to LPMS USA by the deadline applicable to the classification of such Product. Buyer’s failure to perform the inspection or provide written notice of any claims for Defects by the deadline applicable to each of the Products included in each shipment (whether one (1) calendar day or ten (10) calendar days after confirmed receipt) constitutes irrevocable and unqualified acceptance of such Products and a waiver of all Defects and claims relating to such Products. All Defects in Contracted Products and Buyer Assemblies are further subject to the provisions of Section 4.(e). Upon LPMS USA’s receipt of a timely notice of Defects, Buyer shall cooperate with LPMS USA in investigating the source or cause of the Defects, and in determining whether and how to avoid or remedy such Defects in the future. Buyer shall dispose of all Products with Defects at its own expense, subject to LPMS USA’s prior right to inspect.

(e) Contracted Products. LPMS USA designs and manufactures custom-made Products on a contract basis utilizing molds and tooling and resins purchased by the customer and/or provided by LPMS USA (“Contracted Products”). LPMS USA offers the following services with respect to Contracted Products: (a) tooling trials, qualification, and testing (“Trial Phase”), and (b) contract manufacturing, also known as production services (“Contract Manufacturing Phase”). During the Trial Phase, LPMS USA and Buyer will work cooperatively to develop, qualify, test, and validate the Contracted Products and related tooling, designs, specifications, materials, and manufacturing processes (collectively, “Tooling Specifications”). During this Phase, the Contracted Products and Tooling Specifications are under development and have not been fully validated or approved by Buyer. BUYER AGREES THAT ALL CONTRACTED PRODUCTS DELIVERED BY LPMS USA DURING THE TRIAL PHASE ARE SOLD “AS-IS”. LPMS USA MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING SUCH CONTRACTED PRODUCTS AND DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT.
After Buyer approves the final Tooling Specifications (collectively, “Final Specifications”), Buyer and LPMS USA may proceed to the Contract Manufacturing Phase, during which LPMS USA agrees to manufacture the Contracted Products at production levels in accordance with the Final Specifications. During this Phase, LPMS USA may manufacture and deliver Contracted Products: (A) as separate components; or (B) as part of integrated components or assemblies consisting of the Contracted Products and Buyer-supplied components (“Buyer Components”) (collectively, Contracted Products and Buyer Components, “Buyer Assembly[ies]”). BUYER AND LPMS USA AGREE THAT ALL CONTRACTED PRODUCTS DELIVERED BY LPMS USA TO BUYER DURING THE CONTRACT MANUFACTURING PHASE CONFORM TO THE FINAL SPECIFICATIONS AT THE TIME OF DELIVERY, SUBJECT, HOWEVER, TO THE YIELD QUOTED BY LPMS USA FOR BUYER COMPONENTS, IF ANY (“CONTRACT MANUFACTURING WARRANTY”).
During this Phase, LPMS USA may, in its discretion, quote the minimum percentage (or number) of Buyer Components (that are part of Buyer Assemblies) that LPMS USA will deliver without Defects (“minimum Yield” or “Yield”). For purposes of the example below, these Defects might include, without limitation, cosmetic blemishes or cracks in the molded part. All Yields are quoted by LPMS USA on a case-by-case basis and must be approved in advance and in writing by the President, Treasurer, Sales Engineer, or Operations Manager of LPMS USA, or the alleged Yield is void. Buyer agrees that Buyer Components will have different Yields based on many factors, including, without limitation, differences in the Final Specifications and the Buyer Components themselves. Buyer further agrees that certain Defects in Buyer Components are unavoidable, that it is difficult or impossible for LPMS USA to identify or cure such Defects, and that these Defects are factored into the purchase price of Buyer Assemblies.
In order to recover any claims under the Contract Manufacturing Warranty for failure to comply with the Yield quoted by LPMS USA for Buyer Components, Buyer must inspect each shipment of Buyer Assemblies, notify LPMS USA of all Defects therein, and specify which Defects relate specifically to the Buyer Components, all within the timeframes stated in Section 4.(d)(B), above, or the Defects in the Buyer Components are waived. Assuming no Defects in the Contracted Products: (a) Buyer is obligated to purchase all Buyer Assemblies delivered within the stated Yield, at the price set forth in the related firm purchase order. For example, if LPMS USA delivers 1,000 Buyer Assemblies with a Yield of 95%, and Buyer reports no Defects in 950 or more Buyer Components (for example, Buyer’s circuit boards), Buyer shall be obligated to purchase all 1,000 Buyer Assemblies at the price stated in the firm purchase order; and (b) as to those Buyer Components having Defects in excess of the quoted Yield (“Deficiency Units”), Buyer shall receive a credit for the sum of the Raw Cost and LPMS USA’s per unit purchase price of each. For example, if LPMS USA delivers 1,000 Buyer Assemblies with a Yield of 95%, and Buyer reports Defects in the Buyer Components of 60 units, Buyer shall: (i) receive a credit (i.e., discount) for the Buyer’s Raw Cost of 10 Buyer Component units (i.e., the deficiency between the quoted Yield of 950 units and the actual yield of 940 units), and (ii) be obligated to purchase 990 units at the price specified in the related firm purchase order (i.e., the total number of units delivered minus the Deficiency Units). The Raw Cost is the Buyer’s actual out-of-pocket cost for the materials and labor specifically incurred by Buyer for the manufacture of the Deficiency Units, and excludes any overhead costs, other costs, or work performed by Buyer or any third party in connection therewith. Buyer must provide detailed supporting documentation confirming the Raw Cost of the Deficiency Units, along with a proposed Raw Cost credit memo, subject to LPMS USA’s reasonable approval. If LPMS USA does not quote a Yield for any Buyer Assemblies, Buyer is obligated to accept and pay the balance owed for all Buyer Assemblies delivered by LPMS USA at the price stated in the firm purchase order, regardless of Defects in the Buyer Components.
EXCEPT FOR THE CONTRACT MANUFACTURING WARRANTY AS DEFINED ABOVE, LPMS USA MAKES NO WARRANTY CONCERNING BUYER ASSEMBLIES OR BUYER COMPONENTS. In the event of LPMS USA’S breach of the Contract Manufacturing Warranty, Buyer’s sole remedy shall be a credit for the purchase price of the specific Contracted Products that Buyer rejects on a timely basis, and the Raw Cost of the Deficiency Units that Buyer rejects on a timely basis. If applicable law mandates any other remedy, Buyer agrees that such remedy is subject to the Limitation of Warranties and Remedies, and Limitations of Damages, Sections 8.(h)-(i), below. In addition, If Buyer makes any change to the Final Specifications at any time, Buyer agrees to pay LPMS USA for all costs of developing and making such changes, including, without limitation, a renewed Trial Phase, together with all losses and damages incurred by LPMS USA during the Contract Manufacturing Phase, including, without limitation, finished products, work in process, materials, supplies, labor, administrative overhead, restocking fees, and any other costs incurred or allocated thereto during the Contract Manufacturing Phase.
Buyer is solely responsible for determining the suitability of all Contracted Products for their intended uses or end uses, and for approving the Final Specifications. This Section 4(e) supersedes all inconsistent terms of this Agreement.

5. PRICES; TAXES AND COSTS.

Buyer agrees to pay LPMS USA the purchase price of each Product as stated in LPMS USA’s Quotation, Acknowledgment, or other LPMS Documents. All prices stated in this Agreement and in any LPMS Documents are in U.S. Dollars. In addition to the purchase price, Buyer shall pay in advance and/or when due all taxes (including, without limitation, sales tax), customs duty, tariff, any other fee imposed on, in connection with or measured by the transaction, inspection and testing fees, costs of loading, rigging, transportation and insurance, and all other charges and expenses arising from the sale, delivery, and shipment of the Products. If LPMS incurs any such expenses for any reason, Buyer agrees to immediately reimburse LPMS USA in full. If the LPMS Documents do not specify a purchase price, the purchase price shall be the highest of LPMS USA’s most recent quotation to Buyer, prevailing market price, LPMS USA’s list price, or the last price charged by LPMS USA to Buyer for the same Products. LPMS USA may increase the purchase price of any Products, effective immediately on notice to Buyer, in proportion to any increase of three percent (3%) or more in the prices of materials, parts or components that LPMS USA pays or is charged by its Suppliers for such items. In addition, for a purchase order which contemplates delivery of Products (either in whole or in part) more than thirty (30) days after the date of such purchase order, LPMS USA may increase the purchase price of the Products delivered more than thirty (30) days after the date of the purchase order in order to cover any increase in the costs of any labor, materials, parts, components or overhead allocated to the order. LPMS USA shall give Buyer oral or written notice of the price increase at the time that LPMS USA is made aware of such increase, and its effective date.

6. TERMS OF PAYMENT.

Payment terms for all Products are as stated in LPMS USA’s Quotation or other LPMS Documents for such Products. In the absence of such payment terms, unless otherwise agreed by LPMS USA in writing signed by an officer of LPMS USA, payment terms are as follows: (a) if Buyer is located within the United States, payment terms are net 30 days from date of LPMS USA ‘s invoice; and (b) if Buyer is located outside the United States, Buyer shall pay LPMS USA, in advance, or by irrevocable Letter of Credit, including such provisions as are determined by LPMS USA at time of the Quotation, in LPMS USA’s discretion. All banking and other charges for any Letter of Credit are the sole responsibility of Buyer. Credit terms are subject to the approval of LPMS USA’s credit department and may be changed at any time by LPMS USA in its sole discretion. Time is of the essence with respect to all payments due by Buyer under this Agreement and the LPMS Documents. If Buyer fails to remit payment when due, Buyer agrees to pay a late fee on the balance due in the amount of one and one-half percent (1.5%) per month or the highest rate permitted by law, whichever is less, until payment is made in full. In the event of Buyer’s breach of this Agreement or any LPMS Documents, Buyer shall pay LPMS USA all amounts due or to become due, including, without limitation, the price of all Products, late fees, all other damages and remedies provided in this Agreement, the LPMS Documents, and applicable law, and all attorney fees, costs, and disbursements incurred by LPMS USA in enforcing its rights under this Agreement, regardless of whether a lawsuit is commenced. Payment is due immediately upon receipt of LPMS USA’s invoice(s) for each obligation. LPMS USA reserves the right to negotiate any payment obligation hereunder, in its discretion.

7. SECURITY.

(a) Generally. If, at any time, LPMS USA determines that Buyer’s financial condition or other circumstances do not justify the foregoing terms of payment, LPMS USA may (i) demand, before proceeding with delivery of Products, full or partial payment in advance, or by wire transfer or other instructions, satisfactory security, or guaranties of payment, and (ii) at its option and without prejudice to any other remedies, delay delivery of the Products or cancel the order. Buyer releases and indemnifies LPMS USA from an against all liability arising from LPMS USA’s exercise of its remedies under this Section 7.

(b) Security Interest. . In order to secure Buyer’s payment and performance of all of Buyer’s obligations to LPMS USA under this Agreement, the LPMS Documents, and on any other basis, Buyer hereby grants to LPMS USA and LPMS USA hereby retains a security interest in the following collateral, whether now owned or hereafter acquired by Buyer: (i) all Products sold to Buyer, (ii) all materials, parts and components thereof, (iii) all returns, replacements, and substitutions thereof, (iv) all accessories, additions and accessions thereto, (v) all Products bearing any trademark or trade name of LPMS USA or its Suppliers, (vi) Buyer’s inventory and equipment, (vii) all documents of title covering any of the foregoing (i-vi), and (viii) all cash and noncash proceeds of the foregoing (i-vii), including, without limitation, insurance proceeds, and proceeds from products in which the Products are or become an input (collectively, the “Collateral”). Buyer agrees, at Buyer’s expense, to execute and file financing statements and other documents evidencing LPMS USA’s security interest in the Collateral, and to take such actions as may be required by LPMS USA to evidence and perfect its security interest (including any purchase money security interest) granted herein. With respect to such financing statements and documents, Buyer represents and warrants that LPMS USA is authorized in Buyer’s name, and otherwise, to take all such actions as are deemed appropriate by LPMS USA in its discretion, including, without limitation, endorsing, signing, and filing the same on Buyer’s behalf, and Buyer hereby appoints LPMS USA as its attorney-in-fact for all such purposes.

8. LIMITED WARRANTIES AND REMEDIES; DISCLAIMER OF ALL OTHER WARRANTIES; BUYER’S OBLIGATIONS.

(a) Product Descriptions. LPMS USA classifies Products as: (i) consumable materials, (ii) molds and tooling, or (iii) capital equipment. Each product classification has a separate and independent limited warranty referenced below. Except for the limited warranties specifically stated below, LPMS USA makes no warranties, express or implied, concerning such Products, and disclaims implied warranties of merchantability, fitness for a particular purpose, noninfringement, and title. Except for the limited warranties expressed below, Buyer purchases all Products, “as is”.

(b) Limited Warranty for Consumable Materials Labelled LPMS USA. This limited warranty governs consumable materials delivered in packaging labelled LPMS USA. LPMS USA warrants to Buyer that the Products will be free from material defects in materials and workmanship under normal use and service until the earlier of: (i) the expiration date of such Products as set forth on the Certificate of Analysis that accompanies each shipment of Products (or stated on the Product packaging), or (ii) one year from the date of LPMS USA’s delivery of such Products. LPMS USA further warrants that the Product packaging will have a moisture seal at the point of delivery; however, if the moisture seal is lost at any time thereafter, including during transportation or at the Buyer’s location, this warranty is void (collectively, “Moisture Seal Warranty”). LPMS USA makes no warranty that such materials are suitable for use with or in Buyer’s manufacturing equipment and processes, or that the materials are suitable for Buyer’s products and subsequent uses. Buyer must test all such materials for suitability in their manufacturing processes and for any intended subsequent use thereof and is solely liable for such processes and uses. This limited warranty is subject to the Limitation of Warranties and Remedies, and Limitations of Damages, Sections 8.(h)-(i), below.

(c) Limited Warranty for Consumable Materials Provided by Suppliers. This limited warranty governs all consumable materials manufactured by LPMS USA’s Suppliers and distributed by LPMS USA. With respect to such consumable materials, LPMS USA only warrants that the Product packaging will have the Moisture Seal Warranty. LPMS USA makes no other warranty, express or implied, regarding such consumable materials. Buyer is only granted the manufacturer’s warranties provided by the Supplier of such Products, if any. Buyer assumes all liability with respect to such Products and releases and indemnifies LPMS USA from and against all claims arising under the manufacturer’s warranties for such Products. LPMS USA does not warrant that the Supplier will comply with the terms of the manufacturer’s warranty for such Products.

(d) Product Molds and Tooling Limited Warranty. The limited warranty for molds and tooling is based solely on mold cycles. LPMS USA warrants to Buyer that such Products will be free from material defects in materials and workmanship under normal use and service for the following number of mold cycles: (i) for prototype molds, one thousand (1,000) mold cycles; and (ii) for production molds, one million (1,000,000) mold cycles. In addition, LPMS USA will provide spare parts for molds and tooling during the remaining term of such Product’s original limited warranty. Spare parts are limited to replacement parts only. Spare parts are warranted to be free from material defects in materials and workmanship under normal use and service for the lesser of (A) three (3) months from the date of delivery or (B) the remaining warranty for the related molds and tooling. This limited warranty is subject to the Limitation of Warranties and Remedies, and Limitations of Damages, Sections 8.(h)-(i), below.

(e) Capital Equipment Limited Warranty. With respect to capital equipment, LPMS USA warrants to Buyer that the moving parts of such equipment will be free from material defects in materials and workmanship under normal use and service for one (1) year from the date of delivery. LPMS USA will also provide spare parts for capital equipment during the term of such Product’s original warranty. Spare parts are limited to replacement moving parts only. All replacement parts must be installed by a trained individual (or other individual authorized by LPMS USA) and can only be replaced with authorized replacement parts. Spare parts are warranted to be free from material defects in materials and workmanship under normal use and service for the remaining term of the original capital equipment limited warranty.

The limited warranties for capital equipment and replacement parts for capital equipment are void upon the occurrence of any of the following and do not cover any damages or losses arising from the same: (i) any damages or loss caused by Buyer negligence or misuse; (ii) the replacement or use of any replacement parts with parts that were not previously approved by LPMS USA or its Supplier in advance and in writing; (iii) the use or processing of any resin or any other consumable Products with or within such capital equipment that are not approved in advance and in writing by LPMS USA and its Suppliers; (iv) Buyer’s failure to operate, follow any instructions, or maintain the equipment in compliance with the owner’s and/or operator’s manual and maintenance manual for such capital equipment; or (v) Buyer making any changes to any capital equipment, except as specifically permitted under Section 8.(f). Buyer assumes all responsibility and liability for operating the equipment, training its employees, and maintaining the equipment in compliance with all manuals, instructions and training. Failure to do so voids all LPMS USA limited warranties for such equipment. Except for the foregoing LPMS USA limited warranty, Buyer is only granted the manufacturer’s warranties provided by the Supplier of such capital equipment, if any, and Buyer releases and indemnifies LPMS USA from and against all claims arising under the manufacturer’s warranties for such Products. LPMS USA does not adopt, guarantee or represent that the Supplier will comply with any of the terms of the manufacturer’s warranty for such Products. This limited warranty is subject to the Limitation of Warranties and Remedies, and Limitations of Damages, Sections 8.(h)-(i), below.

(f) Limited Warranty for Capital Equipment Modifications. If Buyer makes or initiates any modifications to capital equipment, depending on the circumstance, such modifications may or may not void the LPMS USA limited warranties and Supplier’s manufacturer’s warranties for such Products. The following terms govern Buyer modifications to capital equipment: (i) Original Design Modifications. If the Buyer communicates any specific design requirements or specifications to LPMS USA or its Supplier, LPMS USA makes no warranty, express or implied, regarding such capital equipment, and disclaims implied warranties of merchantability, fitness for a particular purpose, noninfringement, and title. In such circumstances, Buyer agrees that the only warranty available as to the Products shall be the manufacturer’s warranty provided by the Supplier, if any. (ii) Buyer-Originated Modifications After Delivery. If Buyer makes modifications to the capital equipment after delivery, LPMS USA and Supplier do not make any warranty, express or implied, concerning the modifications or the capital equipment itself. All such Buyer-originated modifications immediately void all limited warranties of LPMS USA and the Supplier’s manufacturer’s warranty. In some cases, these modifications can be dangerous. For example, a Buyer may change the “gun nozzle” through which the melted plastics are extruded. In such cases, the gun nozzle could be an incorrect size or not be capable of handling the pressure, and it could explode on the operator. (iii) Insignificant/Cosmetic Changes. Insignificant/cosmetic changes refer to changes that are approved, in advance and in writing, by LPMS USA and which do not affect the operation, safety or quality of the capital equipment or any materials processed or manufactured with the capital equipment. For example, it may involve changing the location of a start/stop switch for operator convenience. In each case, LPMS USA will evaluate the Buyer’s request for the change and will confirm, in advance and in writing, whether it is an insignificant/cosmetic change, in LPMS USA’s sole discretion. If it is deemed an insignificant/cosmetic change, and LPMS USA grants prior written approval to such change, LPMS USA’s limited warranty for such capital equipment shall remain in effect for the remaining term of the original capital equipment limited warranty.

(g) Warranty Exclusion Applicable to Changes to Software and Software Functions. Buyer may not make any changes to software or software functions (including, without limitation, any function regulated by the software, for example, sensors). LPMS does not approve any such changes or modifications. If Buyer makes any modifications to software or software functions, such modifications shall immediately void all LPMS USA limited warranties relating to such capital equipment. All changes to software and software functions must be approved in advance, and made and installed by, Supplier, and are subject exclusively to the Supplier’s manufacturer’s warranty offered with respect to such changes. LPMS USA makes no warranty, express or implied, regarding any changes to software and software functions, and disclaims all warranties, express and implied, including, without limitation, implied warranties of merchantability, fitness for particular purpose, noninfringement, and title with respect to such changes and the related capital equipment. Buyer agrees that the manufacturer’s warranty, if any, is the only warranty available regarding such changes, and releases and indemnifies LPMS USA from and against all claims arising under such manufacturer’s warranty.

(h) Limitation of Warranties and Remedies. EXCEPT FOR THE LIMITED WARRANTIES EXPRESSED ABOVE, LPMS USA MAKES NO WARRANTY, EXPRESS OR IMPLIED, CONCERNING THE PRODUCTS, AND DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, AND TITLE, WITH RESPECT TO ALL PRODUCTS. In addition, the following actions and misconduct immediately void all of the foregoing limited warranties: damage caused or occurring, or resulting directly or indirectly from, Buyer’s or any third party’s negligence, abuse, abnormal usage, or misuse, damages occurring in loading, rigging, transit or during transportation, accidents, environmental or natural elements or events, failure to comply with LPMS USA’s or Supplier’s instructions regarding operation, use or maintenance (whether included in manuals or not), improper installation, and damages occurring in storage (including, without limitation, damages arising from humidity, temperature or any other cause). LPMS USA and Supplier make no warranties relating to Buyer’s requested specifications. All warranty claims must be communicated by Buyer to LPMS USA in writing within ten (10) calendar days after discovery of the Defect. Buyer’s failure to make a claim within the applicable limited warranty period, and within ten (10) calendar days after discovery of a Defect, constitutes a waiver of the Defect and claim, and Buyer’s acknowledgment that the Products comply with the limited warranty.
In the event of a timely warranty claim, LPMS USA shall repair or replace, in its discretion, and at its expense, any Products proved to LPMS USA’s reasonable satisfaction to be defective within the warranty period. Such warranty remedies shall be available only if: (i) LPMS USA is notified in writing of the claim within ten (10) calendar days after discovery of an alleged Defect; (ii) the alleged Defect has not been caused by any occurrence or activity that voids the warranty, as described above; and (iii) the warranty had not expired when the alleged Defect was discovered. LPMS USA’S SOLE OBLIGATION AND BUYER’S EXCLUSIVE REMEDY HEREUNDER SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF DEFECTIVE PRODUCTS DETERMINED BY LPMS USA TO BE COVERED BY THIS LIMITED WARRANTY. Notice of any warranty claim or request for warranty service should be sent to LPMS USA at the following address: LPMS USA, 1441 Branding Lane, Suite 110, Downers Grove, IL 60515, Attention: Customer Service. In the event of timely notice of a valid warranty claim, LPMS USA may require Buyer to return to LPMS USA all Products subject to the claim, at LPMS USA’s expense. Any assistance LPMS USA provides to or procures for Buyer outside the terms, limitations or exclusions of this warranty will not constitute a waiver of the terms, limitations or exclusions of its limited warranty, and such assistance will not extend or revive the warranty. LPMS USA will not reimburse Buyer for any expenses incurred by Buyer in repairing, correcting or replacing any defective Products, except for those incurred with LPMS USA’s prior written permission.

(i) LIMITATIONS OF DAMAGES. LPMS USA SHALL NOT BE LIABLE TO BUYER, OR TO ANY THIRD PARTY, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, OR UNDER ANY STATUTE OR OTHER LEGAL THEORY, WITH RESPECT TO THE PRODUCTS OR LPMS USA’S UNDERTAKINGS, ACTS OR OMISSIONS UNDER THIS AGREEMENT, ANY LPMS DOCUMENTS, OR ON ANY OTHER GROUNDS. IN NO EVENT SHALL LPMS USA BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR LOST PROFITS (WHETHER DIRECTLY OR INDIRECTLY INCURRED) EVEN IF LPMS USA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED WARRANTY, THE LIMITATION OF WARRANTIES AND REMEDIES, AND LIMITATIONS OF DAMAGES (UNDER SECTIONS 8.(h)-(i)), OR ANY OTHER REMEDY IN THIS AGREEMENT. LPMS USA’S AGGREGATE LIABILITY WITH RESPECT TO ANY DEFECTIVE PRODUCTS AND THIS AGREEMENT SHALL BE LIMITED TO THE MONIES PAID BY BUYER TO LPMS USA FOR THAT DEFECTIVE PRODUCT. Buyer agrees that LPMS USA has no post-sale duty to warn Buyer or any other party about any matter or, if such duty exists, LPMS USA satisfies that duty by providing any required warnings only to Buyer. Buyer assumes all post-sale duty to warn its customers and any other third-party buyers and indemnifies LPMS USA against any damages in connection with such duty or failure to warn.

(j) Retention of Samples. LPMS USA has no obligation to retain Product samples and Buyer accepts all responsibility for obtaining and retaining any required or desired samples or other retainages.

(k) Buyer’s Obligations. Prior to using or permitting use of the Products, Buyer shall determine the suitability of the Products for the intended use and under Buyer’s operating conditions, and Buyer assumes all risk and liability whatsoever in connection therewith. Buyer agrees to test and evaluate samples to ensure compliance with all specifications, quality requirements and other requirements of Buyer’s application. LPMS USA does not guaranty the accuracy of information given and recommendations made as to suitability of Products for Buyer’s application, operating conditions, or products. Buyer agrees to comply with all laws and regulations now or hereafter in effect and applicable to the purchase, transport, use, supply, storage, sale, offer for sale, lease and/or disposal of the Products (“Laws”) including, without limitation, to the extent applicable, the U.S. Foreign Corrupt Practices Act and all other antibribery laws, all U.S. antiboycott laws, the U.S. Export Administration Act and all regulations thereunder, and all laws relating to exports or re-exports of Products. If Buyer or its affiliates, agents or representatives engages a freight forwarder or similar service provider, Buyer shall provide LPMS USA with copies of freight forwarder (or similar) records regarding Product exports promptly upon request. Buyer shall promptly notify LPMS USA in writing if Buyer receives notice of or otherwise has reason to believe that a violation of U.S. export law has occurred or is likely to occur. Buyer assumes all risk with respect to Product compliance with applicable Laws (including without limitation all Environmental Laws in any jurisdiction). Buyer acknowledges that certain Products have restrictions on who can purchase, transport, use, supply, store, sell, offer for sale, lease and/or dispose of (the “Actions”) the Product and on how and where such Actions may take place. Buyer agrees to be responsible for determining who may take such Actions and how and where such Actions may take place after LPMS USA’s delivery hereunder, and further agrees to ensure that its Buyers comply with such requirements. Buyer shall maintain records pertaining to the Product’s sale and use and Buyer’s and its customers’ and any other third-party buyers’ compliance with applicable Environmental Laws, and Buyer shall make such records available to LPMS USA on demand. “Environmental Laws” means all applicable federal, state and local laws, and other governmental restrictions and requirements relative to or that govern air quality, soil quality, water quality, solid waste, hazardous waste, hazardous or toxic substances, or pollution or the protection of employee health and safety, public health, or the environment, including, but not limited to, the Comprehensive Environmental Response Compensation and Liability Act, the Hazardous Materials Transportation Act, the Clean Water Act, the Resource Conservation and Recovery Act, the Clean Air Act, and the Toxic Substances Control Act, as each of these laws have been amended from time to time, and any regulations of the U.S. Environmental Protection Agency or any state environmental protection agency now or at any time in the future.

(l) Patent Infringement and Defects in Buyer’s Specifications.LPMS does not represent or warrant that the Products referenced in Sections 8.(c-f) do not infringe the patents or other intellectual property or proprietary rights of any third party. Buyer releases LPMS from all claims arising from any alleged infringement. With respect to any Products manufactured to Buyer’s specifications, drawings, designs or descriptions, Buyer hereby agrees to indemnify and hold harmless LPMS USA from any and all damages sustained by LPMS USA and any third parties, including, but not limited to, reasonable attorneys’ fees, resulting from any action or threatened action against LPMS USA for (a) infringement of the patents or other proprietary rights of any other person, or (b) injury to person or property, including death, relating to defects in specifications, drawings, designs or descriptions provided by or for Buyer.

9. CONFIDENTIAL INFORMATION; TRADEMARKS.

(a) Confidential Information. Buyer acknowledges that all trade secrets and Confidential Information (as defined below) which may be disclosed to it by LPMS USA or its affiliates shall at all times, both during and after expiration or termination of this Agreement for any reason, remain the exclusive property of LPMS USA or its affiliates and that Buyer shall not acquire any proprietary interest whatsoever therein. “Confidential Information” means all knowledge and information disclosed by LPMS USA or its affiliates to Buyer orally or in writing, or acquired by Buyer through observation, regarding LPMS USA’s products, technology, inventions, formulas, know-how, services, forecasts, sales methods, Buyer lists, Buyer usages and requirements, financial information, business plans, strategies and future business relationships, that provides LPMS USA with a competitive advantage or belongs to LPMS or its Suppliers, with the exception of such information which Buyer can demonstrate by written evidence: (i) was already part of the public domain at the time of the disclosure by LPMS USA or its affiliates; (ii) becomes part of the public domain through no fault of Buyer (but only after and only to the extent that it is published or otherwise becomes part of the public domain); or (iii) is received (after the disclosure by LPMS USA or its affiliates) by Buyer from a third party who did not require Buyer to hold it in confidence and did not acquire it directly or indirectly from LPMS USA under a continuing obligation of confidence. Except as necessary to perform its duties under this Agreement, Buyer shall not use or disclose any Confidential Information but shall care for such confidential information using at least the same degree of care given its own confidential information. At any time, upon LPMS USA’s demand, Buyer shall immediately deliver to LPMS USA all plans, drawings, specifications, sketches, pictures, films, tapes, computer disks, flash memory and USB drives and other removable data storage devices, literature, samples, documents, other tangible objects, and copies thereof, containing trade secrets and other Confidential Information, and shall destroy all computerized and digital records thereof and immediately provide written certification of such destruction to LPMS USA.

(b) Trademarks. Any use of LPMS USA’s or its affiliates’ or Suppliers’ trademarks or other intellectual property shall be subject to LPMS USA’s prior written approval in each instance and such restrictions as LPMS USA may, in its sole discretion, impose from time to time. Buyer may not register any trademark, service mark, or trade dress owned by LPMS USA or its affiliates or Suppliers under any circumstances. Buyer will not repackage the Products or resell Products without LPMS USA’s prior written consent, which consent may be withheld by LPMS USA in its sole discretion. Any use of LPMS USA’s or its affiliates’ or Suppliers’ trademarks in advertisements or promotion must be preapproved in writing by LPMS USA. Buyer and its affiliates agree to take all steps which LPMS USA may from time to time consider to be necessary to perfect or protect LPMS USA’s or its affiliates’ or Suppliers’ rights in its trademarks including, without limitation, executing all necessary assignments, declarations, and other documents requested by LPMS USA. Buyer shall inform LPMS USA promptly of any potential or actual infringement of any of LPMS USA’s or its affiliates’ or Suppliers’ trademarks and shall provide all assistance and information required by LPMS USA, at Buyer’s expense, in connection with any such infringement.

10. INDEMNIFICATION.

Buyer hereby releases and agrees to indemnify, defend and hold harmless LPMS USA, its shareholders, officers, agents, employees, affiliates, successors, assigns and third-party Suppliers (“LPMS USA’s Indemnified Parties”) from and against any and all direct and indirect claims, debts, actions, causes of action, liabilities, loss, suits, demands, fines, penalties, judgments, omissions, damages or expenses whatsoever, including, without limitation, attorneys’ fees and costs of proceedings (“Indemnified Damages”) incurred by, or alleged against, LPMS USA or any of LPMS USA’s Indemnified Parties due to or arising out of, in connection with, resulting from, or relating to (i) the Products, except as expressly set forth in the limited warranties relating to such Products, subject, however, to the Limitation of Warranties and Remedies, and Limitations of Damages, in Sections 8.(h)-(i); (ii) all duties and obligations assumed or undertaken by Buyer under this Agreement, the LPMS Documents, or otherwise (including, without limitation, the duty to release or indemnify LPMS USA from and against any claims); (iii) Buyer’s breach of any of its obligations, duties, representations, covenants or agreements contained in this Agreement, the LPMS Documents, or otherwise; (iv) any damage to or destruction of property, injury to or death of persons caused, or alleged to have been caused, in whole or in part, by any act (or failure to act) of Buyer or any of Buyer’s employees, agents, customers, or assigns, or by the breach of any of Buyer’s obligations, or (v) losses, damages or injuries caused by any products processed, manufactured, sold, or installed by Buyer, or arising from Buyer’s specifications, designs, approvals or instructions (whether provided to LPMS USA or Supplier or not), or due to improper application or use of the Products, or otherwise. Prior to settling any indemnified claim, Buyer will give LPMS USA an opportunity to participate in the defense and/or settlement of such claim, and it shall not settle any indemnified claim without LPMS USA’s written consent. In the event of a recall of any Products, LPMS USA shall have the right to control the recall process, Buyer shall fully cooperate with LPMS USA in connection with the recall, and Buyer shall indemnify, defend and hold harmless LPMS from all Indemnified Damages and costs of the recall except to the extent such Indemnified Damages arise from LPMS USA’s breach of its limited warranty concerning such recalled Products.

11. ADDITIONAL PROVISIONS.

(a) General Provisions. In addition to all other remedies provided under this Agreement, including without limitation, payment of damages, in the event of Buyer’s breach or threatened breach of this Agreement or any LPMS Documents, or of any legal duty owed to LPMS USA or any third party (whether arising in contract, tort, or under any statute or other legal theory), Buyer shall pay all of LPMS USA’s attorney fees and expenses, as and when incurred, regardless of whether a lawsuit or other proceeding is commenced. The termination of this Agreement shall not impair or prejudice any rights that LPMS USA has under this Agreement. The provisions found in Sections 3(c)(4)(d), 6, 7, 8, 9, 10 and 11, including, without limitation, the Limitation of Warranties and Remedies, and Limitations of Damages, Sections 8.(h)-(i), and any other provision the performance or effectiveness of which naturally survives, shall survive expiration or termination of this Agreement. LPMS USA reserves the right to correct clerical or similar errors in this Agreement. The failure of LPMS USA to enforce any of the terms, covenants and conditions of this Agreement shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance thereof. The invalidity of any provision or clause of this Agreement shall not affect the validity of any other provision or clause hereof. All remedies herein are cumulative and not exclusive of any other remedies available at law, by contract or in equity. Buyer is an independent contractor and neither Buyer nor any of its employees or agents shall be considered an employee or agent of LPMS USA.

(b) Entire Agreement. THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF. ANY PRIOR OR FUTURE NEGOTIATIONS OR UNDERSTANDINGS BETWEEN LPMS USA AND BUYER WHICH ARE NOT CONTAINED IN THIS AGREEMENT (INCLUDING WITHOUT LIMITATION, PURCHASE ORDERS, CORRESPONDENCE OR STATEMENTS THAT ADD TO, SUPPLEMENT, DIFFER FROM OR MODIFY THIS AGREEMENT) SHALL HAVE NO FORCE OR EFFECT, UNLESS IN WRITING AND SIGNED BY AN OFFICER OF LPMS USA. THIS AGREEMENT MAY NOT BE AMENDED EXCEPT IN WRITING SIGNED BY AN OFFICER OF LPMS USA, AND MAY NOT BE AMENDED BY COURSE OF DEALING OR INDUSTRY PRACTICE. LPMS USA’S SALES REPRESENTATIVES HAVE NO AUTHORITY TO CHANGE THE TERMS OF THIS AGREEMENT.

(c) Assignment. Buyer may not assign this Agreement or any rights or obligations hereunder without the prior written consent of LPMS USA. Subject to the foregoing, this Agreement shall bind and inure to the benefit of LPMS USA and Buyer and their successors and assigns.

(d) Governing Law; Dispute Resolution. This Agreement, the LPMS Documents, the Products, and all claims relating thereto, shall be governed by the laws of the State of Illinois, without regard to its conflicts of laws principles. This Agreement, the LPMS Documents, all sales and other transactions involving the Products, and all claims relating thereto shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods in any respect. Subject to the provisions of Section 11.(g), any cause of action, claim, suit or demand by Buyer or LPMS USA for specific performance under this Agreement, the LPMS Documents, or on any other basis, shall be venued exclusively in the state or federal Courts of the State of Illinois, and Buyer and LPMS USA hereby consent to personal jurisdiction of the state and federal Courts of the State of Illinois for all matters. Buyer waives the defense of forum non conveniens.

(e) Force Majeure Event. LPMS USA is not liable for any delay in performance or delivery, or failure to fill any Buyer orders, arising from circumstances beyond the actual control of LPMS USA, including, without limitation, acts of God, war, disaster, terrorism, third-party criminal acts, Buyer Delay, delays caused by any Supplier’s failure to deliver raw materials, consumable materials, Products, components of Products, or spare parts or replacement parts on a timely basis, delays arising from the COVID pandemic or any other pandemic or epidemic, or any related government orders or CDC or state health agency guidelines affecting LPMS USA, any Supplier, or any part of the supply chain, or any of their respective employees, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, the operation of statutes, laws, rules or rulings of any governmental orders or regulations, unanticipated demand for goods exceeding LPMS USA’s capabilities or available supply, or any other cause beyond LPMS USA’s actual control (collectively, “Force Majeure Event(s)”). In the event of any Force Majeure Events, LPMS USA may, at its option and without liability to Buyer or any third party, delay delivery, prorate its deliveries, cancel all or any portion of the affected order or purchase order, and extend any date upon which performance is due hereunder.

(f) Waiver of Subrogation. LPMS USA and Buyer, on behalf of themselves and their respective insurers, hereby release and discharge one another and their respective insurers from all claims, demands, causes of action, and reimbursement arising under or relating to any claims for which either party makes a claim or obtains any insurance coverage from its respective insurers.

(g) Arbitration. All claims for damages or any other remedies, other than specific performance, arising under this Agreement, or under any other contracts between LPMS and Buyer, or relating to the Products, shall be resolved exclusively by arbitration under the then-current rules of the American Arbitration Association for Commercial Disputes, by a panel of three (3) arbitrators. Each party shall pay one-half (1/2) of the arbitration fee. Attorney fees shall be awarded by the arbitration panel in accordance with the terms of this Agreement. Such arbitration awards shall be subject to the terms of this Agreement, the LPMS Documents, and Illinois law, as set forth in Section 12.(d). In the event of any inconsistency, the terms of this Agreement and the LPMS Documents shall govern. Arbitration awards shall be enforceable by subsequent Court order and shall not be appealable except as specifically provided under Illinois law.

Effective 01/01/2024