Terms and Conditions of Sale

1. Applicability: These Terms and Conditions of Sale (“Terms”) are incorporated by reference into every quotation, acknowledgement, invoice, or other sales document (collectively, “Sales Documents”) issued by FUJI-DENSHI US CORPORATION, and/or its applicable affiliate(s) named thereon (“Supplier”), to the buyer and/or its applicable affiliate(s) named thereon (“Buyer”). The Sales Documents constitute an offer or counteroffer by Supplier to sell the goods and/or services described therein (“Goods”) to Buyer, subject in all respects to, and strictly in accordance with, these Terms. These Terms together with such Sales Documents are the only terms and conditions that govern or otherwise apply to any sale of the Goods by Supplier to Buyer.

2. Acceptance: Any of the following acts by Buyer shall constitute Buyer’s acceptance of these Terms and the Sales Documents in their entirety: (a) issuing a purchase order, release, or other similar document (collectively, “Purchasing Documents”) for the Goods on the same or substantially the same terms as reflected on the face of the quotation; (b) accepting delivery of the Goods; or (c) by any other conduct which recognizes the existence of a contract for the purchase and sale of the Goods. Once accepted, the Sales Documents, the applicable final drawings, the specifications, any and all statements of work, and any and all assignment of tasks and responsibilities, as each may be applicable and amended from time to time by mutual written agreement of the parties, are incorporated herein by reference and, together with these Terms, constitute the “Agreement.” Neither Supplier’s issuance of any Sales Document nor Supplier’s manufacture, delivery, or performance of any Goods shall constitute acceptance by Supplier of any additional or different terms and conditions attached to or purportedly incorporated into any request for quote materials, purchase order, release, or other Purchasing Document issued by Buyer. Any such terms and conditions are expressly and specifically excluded from, and are not incorporated into, the Agreement, and any such terms shall have no effect with respect to any sales by Supplier or purchases by Buyer of any Goods. Supplier’s performance under any Purchasing Documents issued by Buyer is expressly limited to and conditioned upon Buyer’s acceptance of these Terms exclusively.

3. Risk Of Loss: Unless otherwise stated on the Sales Documents, all sales of Goods shall be Ex-Works Supplier’s facility listed on the Sales Documents (Incoterms 2020). Title and the risk of loss or other damage to Goods shall pass to Buyer upon delivery of the Goods as determined by the applicable Incoterm.

4. Price; Minimum Purchase Requirements: Price quotations for the Goods shall remain valid only for the period of time specified in the Sales Documents. After such period, or after a reasonable time if no time period is specified, prices are subject to change without notice, and Supplier shall invoice Buyer for Goods based on prices in effect at the time of shipment or performance. Prices are not subject to decrease for any reason. Buyer hereby acknowledges and agrees that the prices set forth in the Agreement are contingent upon Buyer’s agreement to purchase the total quantities during the applicable period as set forth in Buyer’s request for quote or other proposal.

5. Payment: Payment terms are net thirty (30) days from date of delivery or performance, unless otherwise specified in the Sales Documents. Payment is due in U.S. dollars via electronic funds transfer. There will be no discount for earlier payment. A monthly service charge of one and one-half percent (1.5%), or the maximum allowed by applicable law, will be added for each month or part of a month that any amount due remains unpaid after its due date. Notwithstanding the foregoing, Supplier may require advance payment or additional collateral from Buyer in the event: (a) Supplier has reasonable doubt as to Buyer’s credit worthiness; (b) Supplier determines, in its sole discretion, a substantial risk of its claim to payment exists due to declining assets of Buyer; or (c) Buyer is in arrears with respect to any payment owed Supplier. Buyer agrees to promptly provide to Supplier all information reasonably requested by Supplier to make such determinations. If Buyer becomes delinquent in payment, Supplier shall have the immediate right, in addition to any other right it may have, without notice, to terminate the Agreement or otherwise cancel all or any part of any outstanding order, to recall or withhold further deliveries or performance, and declare all unpaid amounts for any Goods previously delivered immediately due and payable. Until the Goods have been paid for in full, Buyer or any agent of Buyer: (i) will hold the Goods subject to a security interest or lien in favor of Supplier allowing for the right of re-possession by Supplier to the extent permitted by applicable law, and (ii) will not alter, remove, destroy, or damage any identifying mark on the Goods or their packaging. Buyer shall also grant to Supplier a security interest in all tooling and other property of Buyer or its affiliates which come into the possession or control of Supplier as security for all sums owing from Buyer to Supplier.

6. Invoice Disputes: Buyer shall notify Supplier in writing of any dispute with respect to any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the date of such invoice. Buyer will be deemed to have waived all rights to dispute any invoice for which Supplier does not receive timely notification of dispute and shall timely pay all undisputed amounts. The parties shall seek to resolve any invoicing disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations during any such dispute, including Buyer’s obligation to timely pay all due and undisputed invoice amounts.

7. No Setoff: Buyer shall perform its obligations under this Agreement without setoff, deduction, recoupment, or withholding of any kind for amounts owed (or to become due and owing) or payable to it by Supplier or Supplier’s affiliates, whether under this Agreement, applicable law, or otherwise, and whether relating to Supplier’s or its affiliates’ breach, bankruptcy, or otherwise.. Buyer shall pay all Supplier’s costs of collection, including Supplier’s attorneys’ fees.

8. Delivery; Packaging: All delivery dates and quantities specified in the Sales Documents are estimates only and are not guaranteed. Notwithstanding the foregoing, Supplier shall use reasonable efforts to meet Buyer’s requested delivery dates and quantities, provided that Buyer has complied with Supplier’s then applicable lead-time requirements. Unless Buyer specifies shipping instructions, shipment and delivery will be made by the carrier and in the manner designated by Supplier. Without limiting the foregoing, Supplier shall not be liable for any delays or defaults in deliveries, except to the extent such delays arise solely and directly as a result of Supplier’s gross negligence or willful misconduct. Goods shall be packaged and shipped as specified in the Sales Documents, or, in the absence of such specifications, Goods shall be packaged in accordance with sound commercial practice. Unless otherwise specified in the quotation, all crating, marking, labeling, corrosion protection, export, or other special packaging will be an additional charge to Buyer and will be specified on the applicable Sales Documents.

9. Lead Time: Unless a longer period is required and communicated by Supplier in writing, Buyer shall provide Supplier no less than six (6) weeks of lead time for all orders of Goods.

10. Inspection of Goods; Remedies for Nonconforming Goods: Buyer shall inspect the Goods on or before five (5) days of taking delivery (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Supplier in writing of any Nonconforming Goods during the Inspection Period and furnishes the results of its internal analysis of the nonconformity and any other written evidence or other documentation as may be reasonably required by Supplier. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in the Sales Documents or Purchasing Documents; or (ii) the product’s label or packaging incorrectly identifies its contents. In the event that the Goods are determined to be Nonconforming Goods, Supplier’s sole liability to Buyer and Buyer’s sole remedy for such Nonconforming Goods is limited to, at Supplier’s option: (a) the repair or replacement, at Supplier’s facility, of such Nonconforming Goods; or (b) refund or credit of the price actually paid by Buyer to Supplier for such Nonconforming Goods. The remedies afforded Buyer under this Section 10 shall be exclusive for any Nonconforming Goods. Failure of Buyer to reasonably inspect the Goods during the Inspection Period shall be deemed an irrevocable waiver by Buyer of the remedies contained in this Section 10 BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN THIS SECTION 10 ARE BUYER’S EXCLUSIVE REMEDIES AND COMPRISE SUPPLIER’S ENTIRE LIABILITY FOR ANY BREACH OF THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11 BELOW. EXCEPT AS PROVIDED UNDER THIS SECTION 10, HAS NO RIGHT TO RETURN GOODS PURCHASED UNDER THIS AGREEMENT TO SUPPLIER.

11. Limited Warranty: Supplier warrants to Buyer: (a) that Supplier has good transferrable title to the Goods delivered, free and clear of liens; and (b) that at the time of delivery, the Goods delivered will conform in all material respects to the final material specifications issued or otherwise approved by Supplier and set forth in the Agreement.. THE FOLLOWING ARE SPECIFICALLY EXCLUDED FROM ANY WARRANTY OFFERED BY SUPPLIER UNDER THE AGREEMENT: (A) DAMAGES OR DEFECTS CAUSED BY A THIRD PARTY OR ANY UNAUTHORIZED OR IMPROPER INSTALLATION, ALTERATION, MODIFICATION, REPAIR, MAINTENANCE, STORAGE, HANDLING, USE, OR OPERATION OF THE GOODS BY BUYER OR ANY THIRD PARTY; (B) DAMAGES OR DEFECTS CAUSED BY ANY EQUIPMENT, COMPONENT, SYSTEM, OR ASSEMBLY NOT MANUFACTURED OR SOLD BY SUPPLIER (“THIRD-PARTY COMPONENTS”); (C) DAMAGES OR DEFECTS ATTRIBUTABLE TO OR CAUSED BY (1) MISUSE, NEGLECT, ACCIDENT, ABUSE, OR VANDALISM OR ANY TRANSIT-RELATED DAMAGE, (2) ACTS OF GOD OR INSURRECTION, (3) NORMAL WEAR AND TEAR, OR (4) ANY OTHER ACTS THAT ARE BEYOND SUPPLIER’S REASONABLE CONTROL; OR (D) DESIGN DEFECTS TO THE EXTENT GOODS ARE DESIGNED BY BUYER, BUYER’S AFFILIATE(S) OR ANY OTHER THIRD PARTY. FOR THE AVOIDANCE OF DOUBT, SUPPLIER SHALL HAVE NO LIABILITY WHATSOEVER FOR THE FOREGOING. THE WARRANTIES SPECIFIED IN THIS PARAGRAPH ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

12. Limitation Of Liability: Except to the extent arising solely and directly as a result of Supplier’s gross negligence or willful misconduct, Supplier’s liability, whether founded in contract tort, or otherwise, arising as a result of or relating to (a) the Agreement or any performance or breach thereof; (b) any design, manufacture, delivery, sale, repair, replacement, or use of Goods; or (c) the furnishing of any service; shall not exceed, in any given calendar year, a maximum of five percent (5%) of the revenue actually received by Supplier from Buyer during the immediately preceding calendar year for the Goods giving rise to such remedy. No legal action arising as a result of or otherwise relating to the Agreement, whether alleging breach of warranty or other breach, default or tortious acts, shall be commenced against Supplier more than one (1) year after delivery of the Goods giving rise to such claim, or one (1) year after claimant could reasonably have discovered the basis for such action, whichever comes first. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH THE AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SUPPLIER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

13. Intellectual Property Rights: Buyer acknowledges and agrees that: (a) any and all of Supplier’s Intellectual Property Rights (defined below) are the sole and exclusive property of Supplier or its licensors; (b) Buyer shall not acquire any ownership interest in any of Supplier’s Intellectual Property Rights under the Agreement or otherwise, or any other rights in or to Supplier’s Intellectual Property Rights; and (c) Buyer shall use Supplier’s Intellectual Property Rights solely for purposes of using the Goods and only in accordance with the instructions provided by Supplier, if any. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) copyrights, works of authorship, expressions, designs, and design registrations, whether or not copyrightable; (iv) trade secrets; and (v) design rights and all industrial and other intellectual property rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing.

14. Indemnification: To the fullest extent permitted by applicable law, Buyer hereby expressly agrees to indemnify, defend, and hold harmless Supplier and Supplier’s affiliates, and its and their officers, directors, managers, employees, agents, successors, and assigns from and against any and all claims, liabilities, lawsuits, losses, costs, expenses, and damages (including attorneys’ and professionals’ fees) of any kind or nature whatsoever, including claims for personal injury (including death) or property damage, whether such claims are founded in contract, tort, or otherwise, including strict liability, which arise as a result of or otherwise relate to the Agreement (including any breach thereof) and/or the Goods, except to the extent arising solely and directly as a result of Supplier’s gross negligence or willful misconduct.

15. Termination By Supplier: Supplier may immediately terminate the Agreement or all or any part thereof, without liability to Buyer or any other party, as a result of: (a) Buyer’s breach, threatened breach, or repudiation of any representation, warranty, covenant, or other term of the Agreement; (b) any assignment for the benefit of creditors or any institution of proceedings in bankruptcy or insolvency by or against Buyer; (c) Buyer entering or offering to enter into one or more transactions effecting a sale of a substantial portion of Buyer’s assets or business or any merger, sale, or exchange of equity interests that would result in a Change of Control (as defend below) of Buyer; or (d) a financial or other condition that could, in Supplier’s sole discretion, endanger Buyer’s ability to make required payments or otherwise perform. In addition, Supplier may terminate the Agreement or all or any part thereof, with or without cause, upon delivery of thirty (30) days’ advance written notice to Buyer. Following Supplier’s termination, Buyer shall reimburse Supplier, upon receipt of Supplier’s written demand, for all Goods completed in accordance with Buyer’s Purchasing Documents, and any work-in-progress, raw materials acquired for manufacture of the Goods, and Supplier’s costs for settling any claims or disputes with its sub-suppliers in connection with component parts, raw materials, or services related to the Goods (collectively, “Termination Costs”). Under no circumstances shall Supplier have any obligation to assist Buyer in any transition of supply of the Goods (or substitutes therefor) to Buyer or any other vendor, except to the extent otherwise expressly agreed by Supplier and only upon Supplier’s actual receipt of all Termination Costs owed by Buyer to Supplier together with any applicable fees for such transition support.

16. Termination By Buyer: Buyer may only terminate the Agreement or all or any part thereof for cause upon a material breach by Supplier which remains uncured thirty (30) days following Supplier’s receipt of written notice of such breach from Buyer (together with all necessary supporting information evidencing such breach), and then, only upon delivery of not less than fifteen (15) additional days’ advance written notice to Supplier. Following Buyer’s termination and upon Supplier’s written demand, Buyer shall reimburse Supplier all Termination Costs. Under no circumstances shall Supplier have any obligation to assist Buyer in any transition of supply of the Goods (or substitutes therefor) to Buyer or any other vendor, except to the extent otherwise expressly agreed by Supplier and only upon Supplier’s actual receipt of all Termination Costs owed by Buyer to Supplier together with any applicable fees for such transition support.

17. Force Majeure: Supplier shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing its obligations when such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Supplier, including, but not limited to, acts of God, flood, fire, earthquake, explosion, foreign or domestic governmental actions, regulations or orders (whether or not later determined invalid), war, invasion or hostilities (whether war is declared), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, disease or other public health emergency (including government-mandated quarantine and travel restrictions), lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, directed suppliers, telecommunication, tooling or other equipment breakdown (or any repair, maintenance or rehabilitation thereof), shortage of fuel, power or other utilities, supplies, infrastructure, or transportation, or other similar or dissimilar events beyond the reasonable control of Supplier or Supplier’s sub-suppliers. For avoidance of doubt, to the extent that any such failure or delay causes Supplier to reduce or suspend its production, deliveries, or performance, the time for Supplier’s performance shall be automatically extended for so long as required for Supplier to remove or otherwise overcome such failure or delay. Supplier reserves the right to equitably allocate available goods, materials, and resources based on production capacity and customer needs, and Buyer shall cooperate with any such allocation.

18. Changes: Supplier shall have no obligation to accept or otherwise implement any change to the Goods requested by Buyer. To the extent requested changes are agreed upon by Supplier, if any, the parties will negotiate appropriate adjustments to the time for performance, an equitable price adjustment for Supplier’s increased costs, and the amount of reimbursement by Buyer for the costs of any finished Goods, raw materials or supplies which become obsolete, or any other costs or appropriate adjustments resulting from the requested changes. Buyer shall issue updated Purchasing Documents, or the parties shall otherwise memorialize such an agreement in writing as an amendment to the Agreement, before Supplier is under any obligation to commence work on any such agreed-upon change.

19. Tooling; Service Parts: All tooling, dies, jigs, and other equipment (including any special tooling) required to produce Goods shall remain Supplier’s property unless otherwise agreed in writing.

20. Compliance With Laws; Export: Buyer shall fully comply with all applicable law, statutes, rules, regulations, conventions, orders, standards, and ordinances, including all applicable anti-corruption laws, as such acts may be amended from time to time. Each party acknowledges and agrees that the Goods are subject to export controls imposed by the U.S. government under various federal laws. Buyer is responsible for compliance with all applicable U.S. export and international trade control laws.

21. Audits And Financial Review: Supplier shall have no obligation to participate in any Buyer financial review or otherwise provide any of Supplier’s financial information to Buyer or any other person, including, but not limited to, information relating to Buyer owned tooling and/or capital equipment. Notwithstanding the foregoing, upon an uncured material breach by Supplier and written request by Buyer, Supplier will only be required to produce financial information relative to the default and ability to perform its obligations in the future.

22. Confidential Information: All non-public, confidential, or proprietary information of Supplier, including specifications, samples, patterns, designs, plans, drawings, documents, data, hardware, software, material formulations and compositions, manufacturing processes and methods, business operations, customer or supplier lists, pricing, discounts, or rebates disclosed or otherwise made available by Supplier or its agents to Buyer, whether or not marked, designated, or otherwise identified as “confidential,” shall be held by Buyer in strict confidence and used solely for the purpose of doing business with Supplier pursuant to the Agreement. Upon Supplier’s request, Buyer shall promptly return all documents and other materials received from Supplier and promptly and securely destroy any compositions, summaries or other embodiments thereof. Supplier shall be entitled to injunctive relief for any violation of this paragraph. Buyer’s obligations under this paragraph shall survive any expiration or termination of the Agreement.

23. Assignment: Buyer may not assign or delegate the Agreement or any of Buyer’s rights or obligations under the Agreement without Supplier’s prior written consent. Any attempted assignment or delegation by Buyer in contravention of this paragraph shall be null and void ab initio. A sale of a substantial portion of Buyer’s assets or a material change in the direct or indirect ownership or control of Buyer (including control of more than twenty-five percent (25%) of Buyer’s equity interests), any merger or consolidation directly or indirectly involving Buyer, or any other substantial change in Buyer’s organization (each, a “Change of Control”) shall be deemed an assignment by Buyer. The Agreement is binding on and shall inure to the benefit of the parties’ to this Agreement and their respective permitted successors and assigns.

24. WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THE AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THE SALES DOCUMENT OR OTHER PART OF THE AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

25. Miscellaneous: The Agreement contains the entire understanding of the parties relating to the subject matter thereof. The Agreement may only be amended or modified in a writing signed by authorized representatives of the parties. Buyer and Supplier are independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. Neither party has the authority to assume or create any obligation on behalf of the other party. In the event of a conflict between these Terms and any other Sales Document made part of the Agreement, the applicable Sales Document shall control. Supplier’s waiver of any breach by Buyer shall not be construed as a waiver of any other breach, and no waiver by Supplier shall be effective unless it is in writing signed by an authorized representative of Supplier. The failure of Supplier to require performance under any provision of the Agreement shall in no way affect Supplier’s right to require full performance at any subsequent time. The validity, interpretation, and enforcement of the Agreement shall be governed by the law of the state of Michigan, without regard to conflicts of law provisions, and the U.N. Convention on Contracts for the International Sales of Goods shall not apply. If any provision of the Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. These Terms shall survive and continue in full force and effect following the expiration, cancellation or termination of the Agreement. Buyer shall, and shall cause its affiliates to, from time to time at Supplier’s request and without any additional consideration, furnish Supplier such further information or assurances; execute and deliver such additional documents and instruments; and take such other actions and do such other things, as may be reasonably necessary to carry out the provisions of the Agreement and give effect to the transactions contemplated hereby.