General Terms and Conditions

1. ACCEPTANCE OF ORDERS: [_____________________]’s (“Buyer”) purchase order, contract, sub-contract or express request, whether written or oral, to purchase (each an “Order”) constitutes an offer by Buyer to purchase products or services (“Products”) from MLD Technologies, LLC (“MLD”). MLD’s sole method of accepting the offer, and any changes thereto, shall be through written notice of MLD’s acceptance signed by an authorized representative of MLD (the “Acknowledgement”) and delivered to Buyer. The Acknowledgment may, without limitation, take the form of Buyer’s purchase order acknowledged and signed by an authorized representative of MLD or a sales order acknowledgement signed by an authorized representative of MLD. Any changes or exceptions to the Acknowledgement or these General Terms and Conditions must be expressly accepted in writing by MLD.
2. ACKNOWLEDGEMENT: The Acknowledgement is made and given on the express understanding that these General Terms and Conditions are incorporated into the Acknowledgment and apply to the sale of Products by MLD to Buyer. MLD’s acceptance of any Order by Buyer is expressly made conditional upon Buyer’s acceptance of all terms and conditions contained herein and on the face of the Acknowledgement. MLD objects to any additional or different terms and conditions, whether contained in Buyer’s forms or otherwise. Buyer’s silence or its acceptance of the Products constitutes its acceptance of these General Terms and Conditions.
3. PRICES & SHIPMENT: Prices are FOB Origin (Eugene, Oregon). MLD will ship via Buyer’s designated method, carrier and account number, or prepay shipping charges and bill Buyer for such charges. In the absence of timely or specific shipping instructions, MLD will ship by any reasonably appropriate method. Unless expressly stated by MLD in writing, prices are for the specified products or services only and do not include non-standard testing, packaging (other than MLD’s normal domestic commercial packaging), or shipping.
4. TAXES & DUTIES: Unless separately agreed to and so stated in the Order, all prices are quoted and all orders are accepted exclusive of all customs duties, tariffs, import taxes, and federal, state, and local taxes of any kind. Except as required by applicable law, MLD will not report, collect, or pay any tax which may be imposed on Buyer and Buyer shall be solely responsible for reporting and paying all such imposed taxes.
5. PAYMENT: Terms of payment are net thirty (30) days from the date of MLD’s invoice. All payments are to be made in United States Dollars. Payments from outside the United States shall be made by wire transfer, with all applicable transfer fees paid by Buyer. Notwithstanding anything to the contrary, MLD reserves the right to amend the terms of payment or to require payment prior to shipment if, in MLD’s reasonable opinion, Buyer’s financial condition or other circumstances do not warrant shipment on the terms specified in these General Terms and Conditions. Payments outstanding more than thirty (30) days from the date of MLD’s invoice shall be subject to an interest charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum interest charge allowed by law.
6. TITLE & RISK: Title to Product shall pass to Buyer upon full payment of invoice(s). Risk of damage or loss shall pass to Buyer at FOB Origin (Eugene, Oregon).
7. CHANGES: Buyer may make changes, by written order only, within the general scope of the Order in any of the following: (i) Buyer’s drawing(s), design(s), specification(s) metrology requirement(s) and inspection requirement(s); (ii) method of packaging and/or shipping; or (iii) place of delivery. All changes must be agreed to in writing by MLD prior to taking effect. If any change causes an increase or decrease in the cost of, or schedule for, the performance of work under the Order, then an equitable adjustment in the price or schedule, or both, shall be negotiated and the Order revised accordingly.
8. CUSTOMER FURNISHED MATERIAL: MLD shall not be liable for any loss of or damage to property or materials provided to MLD in connection with the Order, except for loss or damage caused solely by MLD’s gross negligence; provided, that in no event shall MLD’s liability for loss of or damage to any property or materials provided to MLD in connection with the Order exceed the lesser of (i) the sum of $100,000 or (ii) the actual cost of repair or replacement of the property or materials; provided further, that MLD shall be responsible for actual costs of repair and replacement only to the extent such costs are substantiated to MLD’s reasonable satisfaction. Notwithstanding anything to the contrary in the Order, MLD’s liability in the case of incorrectly coated property or material furnished by Buyer is limited to re-coating of replacement property or material furnished by Buyer. MLD shall have no obligation to maintain insurance coverage for any property or materials provided to MLD unless otherwise agreed to in writing by the parties. The risk of loss for property and materials provided to MLD in connection with the Order shall remain with Buyer. To the extent necessary, Buyer shall maintain appropriate insurance coverage for any property or materials provided to MLD.
9. FIXTURES AND TOOLS: MLD’s means of manufacture are proprietary to MLD and shall remain as such upon completion of the Order. Title to fixtures and tools required for performance of the Order are property interests of MLD and shall remain as such upon completion of the Order. MLD preserves the right to alter, sell, destroy or otherwise dispose of any fixtures and tools manufactured for performance of the Order at any time after one (1) year from the date of final delivery of Product. Invoices for setups, fixtures or tools do not convey any title to Buyer unless so specified in the Order.
10. INSPECTION AND ACCEPTANCE OF PRODUCT: Buyer shall accept the Product or give MLD notice of rejection of such Product within thirty (30) days after delivery of such Product to Buyer. Failure to inspect and reject nonconforming Product during such thirty (30) day period shall be deemed acceptance by Buyer with full responsibility for payment.
11. LIMITATION OF LIABILITY: MLD’s sole and exclusive liability and Buyer’s sole and exclusive remedy under the Order shall be, at MLD’s election, the repair or replacement of any nonconforming Product, or the return to Buyer of monies paid for such Product. These remedies are available only if MLD is promptly notified in writing by Buyer upon discovery of the nonconformance and MLD’s examination of such Product reveals to MLD’s satisfaction that such nonconformance exists and that the Product has not been worked-on, installed or mounted incorrectly, or otherwise damaged by Buyer. Buyer shall have no right to correct defective Products or obtain replacement Products from another source at MLD’s expense (i.e., “cover”).
12. LIMITED WARRANTY: MLD warrants the Product shipped hereunder to be free from non-conformances in material and workmanship for twelve (12) months from the shipment date for the Product. This warranty is the only warranty made by MLD with respect to the Product delivered hereunder and no representative or person is authorized to assume for MLD any obligation beyond this warranty in connection with the sale of MLD’s Product. This warranty is made to the original Buyer only at the original location and is nontransferable, and may only be amended by a written instrument signed by MLD’s authorized representative. All Products which Buyer considers defective shall be returned to MLD’s plant, transportation costs prepaid and borne by Buyer. The risk of loss of the Product shipped or delivered to MLD’s plant for repair or replacement will be borne by Buyer. If it is found that MLD’s Product has been returned without cause and is still serviceable, Buyer will be notified and the Product returned at Buyer’s expense; in addition, a charge for testing and examination may, at MLD’s sole discretion, be applied on Product so returned. If it is found that MLD’s Product has been returned for cause, MLD shall reimburse Buyer for reasonable transportations costs incurred by Buyer in connection with returning such Product to MLD for repair or replacement.

MLD MAKES NO EXPRESS OR IMPLIED WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY SET FORTH IN THE ABOVE WARRANTY.

13. PATENTS AND DATA RIGHTS: a) Patents — Rights in any inventions, discoveries or intellectual property made or developed by MLD, MLD’s employees or persons otherwise under MLD’s control, whether pursuant to the Order or otherwise, including without limitation title to and rights under any patent application or patent which may issue thereon throughout the world shall reside solely with MLD, together with exclusive power to determine whether or not and where a patent application shall be filed and disposition of any rights thereunder. b) Proprietary Data — Sale of Product or performance of any work under the Order does not convey any rights or license to MLD’s intellectual property (including without limitation trade secrets), proprietary data or proprietary know-how, regardless of whether such property, data or know-how are used or developed in the course of the Order. Any data required to be delivered to Buyer by MLD are limited to that data expressly identified on the face of the Order, or in specifications and drawings cited on the face of the Order, as a deliverable item.
14. PATENT INDEMNITY: Buyer shall indemnify, defend and hold harmless MLD and its members, officers, employees, agents and customers against all costs, losses, damages and liabilities of every kind, including reasonable attorney’s fees, arising from or related to claims that the manufacture, use, sale or disposal of Product infringes any patent, trademark, copyright, trade secret or other intellectual property right to the extent the alleged infringement concerns Product made by MLD pursuant to Buyer’s drawings and specifications. MLD will indemnify Buyer against Buyer’s out-of-pocket costs for any third-party trademark, copyright, or patent infringement claims to the extent the claim is based on the manufacture, use, or sale of any work, materials, services, equipment, parts and other items provided by MLD pursuant to the Order, except where the claim relates to aspects of such items embodying Buyer-furnished designs or detailed specifications. MLD will give prompt notice to Buyer of any third-party intellectual property claims relating to the items which claims come to MLD’s attention.
15. ATTORNEY’S FEES: If any legal action is necessary to enforce the terms of the Order, the prevailing party shall be entitled to reasonable attorney’s fees in addition to any relief to which it may be entitled.
16. FINANCIAL DATA: Buyer and MLD agree that MLD’s cost and pricing data are sensitive and proprietary and, therefore, not subject to audit by Buyer, the government, or any third party.
17. WAIVER OF CONSEQUENTIAL DAMAGES: IN NO EVENT SHALL MLD BE LIABLE TO BUYER OR ANY THIRD PARTY UNDER ANY CAUSE OF ACTION INCLUDING NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY OR ANY OTHER LEGAL THEORY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND OR LOST PROFITS INCLUDING, WITHOUT LIMITATION, ANY LIABILITY BY MLD FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES IN ANY WAY RELATED TO OR ARISING FROM ANY PRODUCTS OR SERVICES PROMISED OR FURNISHED BY MLD PURSUANT TO THE ORDER WHETHER OR NOT MLD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. TERMINATION OF ORDER: a) Termination for Buyer’s Convenience—Buyer may terminate the Order for convenience, provided that (i) Buyer shall compensate MLD, at the price stated in the Order, for all Product conforming to the specifications of the Order, whether already delivered or in finished goods inventory at the time of the termination, and (ii) Buyer shall compensate MLD for work-in-process and purchase commitments that cannot be cancelled, the amount of such compensation to be determined by the parties in good faith. b) Termination as a Result of MLD’s Default—In the event (i) MLD fails to deliver Product within the specified time, (ii) MLD delivers nonconforming Product or (iii) a proceeding with respect to MLD is commenced under any applicable law for the benefit of creditors, Buyer may, at its election, terminate the Order, in whole or in part, by giving written notice of default to MLD. Upon termination of all or part of the Order pursuant to this Section 18(b), Buyer shall compensate MLD for all Product that conformed to the specifications of the Order and was delivered to Buyer in a timely manner. In the event Buyer terminates the Order, MLD’s liability to Buyer shall be determined and governed by Section 11 of these General Terms and Conditions, and Buyer shall have no right to obtain replacement Product from another source at MLD’s expense; provided, that in the event that Buyer terminates the Order pursuant to Section 18(b)(i), Buyer shall return to MLD the untimely-delivered Product and Buyer’s sole remedy shall be the refund of monies paid by Buyer for such Product. The termination of the Order shall not terminate any right or obligation set forth in these General Terms and Conditions that would reasonably be expected to survive the termination of the Order.
19. FORCE MAJEURE: MLD shall not be liable for failure in the performance of its obligations under the Order where such performance has been delayed prevented or rendered commercially impractical due to accidents, differences with workmen, strikes, shortage of labor, inability to obtain materials, fuel or power from normal sources, fires, floods or other acts of God, acts or omissions of Buyer, priorities required, requested or granted for the benefit of any Federal or state government, restrictions imposed by Federal or any state legislation or regulations thereunder, or any cause whether similar or dissimilar to those enumerated, beyond the reasonable control of MLD.
20. ORDER OF PRECEDENCE: In the event of a conflict between the provisions of the Order, the Acknowledgement (including these General Terms and Conditions) or any other documents related to the Order, the following order of precedence shall govern: (i) the Order; (ii) the specific terms of the Acknowledgement (including for this purpose these General Terms and Conditions); (iii) the statement of work, drawings, designs, technical specifications or other document describing with particularity the Products to be produced or the work to be performed pursuant to the Order.
21. ENTIRE AGREEMENT: The terms and conditions set forth herein, the Acknowledgement and the Order, including all specifications, drawings’ and other documents expressly referred to in the Order, contain the entire agreement of the parties and supersede all prior negotiations, agreements, understandings or arrangements between the parties with respect to the subject matter hereof. No modifications to the Order shall be binding upon the parties hereto or either party individually, unless such modification is in writing and duly signed by an authorized representative of each party.
22. GOVERNING LAW: The Order, the Acknowledgement, and these General Terms and Conditions shall be governed by the laws of the State of California, excluding the United Nations Convention on Contracts for the International Sale of Goods (as applicable), without giving effect to any conflict-of-law principle that would result in the laws of any other jurisdiction governing this Agreement.
23. VENUE: Any action, suit or proceeding arising out of the subject matter of the Order shall be litigated in courts located in Santa Clara County, California. Each Party consents and submits to the jurisdiction of any local, state or federal court located in Santa Clara County, California.
24. WAIVERS. No waiver shall be binding on a party unless it is in writing and signed by the party making the waiver. A party’s waiver of a breach of any provision herein shall not be a waiver of any other provision or a waiver of a subsequent breach of the same provision.
25. NOTICES. All notices or other communications required or permitted by the Acknowledgement, the Order or these General Terms and Conditions must be (i) in writing, (ii) delivered to the parties at the addresses set forth or referenced below (or any other address that a party may designated by notice to the other party) and (iii) delivered (A) personally against written receipt, (B) by electronic mail, delivery and read receipt requested, (C) by prepaid first class certified mail, return receipt requested, or (D) by overnight courier prepaid.