M-COR INC.

TERMS AND CONDITIONS OF SALE

These Terms and Conditions of Sale (the “Terms”) govern the sale of products (the “Products”) by M-Cor Inc. (“M-Cor”) to the purchaser identified on the applicable order acknowledgment (the “Customer”). These Terms, together with M-Cor’s written order acknowledgment (the “Acknowledgment”) and any specifications attached by M-Cor thereto, constitute the entire agreement between M-Cor and Customer with respect to the Products (the “Agreement”).

1.  CONTRACT FORMATION; CONDITIONAL ASSENT

Conditional Assent. The Acknowledgment and these Terms constitute M-Cor’s offer to sell, or its acceptance of Customer’s offer to purchase, and in either case such acceptance is EXPRESSLY MADE CONDITIONAL on Customer’s assent to these Terms. M-Cor hereby objects to and rejects any additional, different, or conflicting terms contained in any purchase order, release, or other communication from Customer, and no such terms shall become part of the Agreement.

Acceptance. Customer’s acceptance of these Terms shall be deemed to occur upon the earliest of: (i) Customer’s written or electronic confirmation; (ii) Customer’s failure to object in writing within five (5) business days of receipt of the Acknowledgment; (iii) shipment of Products by M-Cor; or (iv) Customer’s payment of any invoice issued by M-Cor.

2.  PRICES AND TAXES

Prices are as stated in the Acknowledgment. Prices exclude all taxes, duties, VAT, freight, insurance, and government charges, which are the sole responsibility of Customer.

Raw Material Surcharge. Prices are based on raw material costs as of the date of the Acknowledgment. If M-Cor’s raw material costs increase by more than five percent (5%) prior to production, M-Cor reserves the right to adjust the price via a surcharge to reflect such increase. M-Cor shall provide reasonable documentation evidencing such cost increases upon request.

3.  PAYMENT TERMS; INTEREST; SECURITY INTEREST

Terms. Invoices are issued at shipment. Payment is due net thirty (30) days from invoice date.

Late Payments. Past due amounts shall accrue interest at the rate of one and one-quarter percent (1.25%) per month (15% per annum) or the maximum rate permitted by Montana law (MCA § 31-1-107), whichever is lower.

No Set-Off. Customer shall pay all invoices in full when due and shall not withhold, deduct, or set off any amount on account of any claim, dispute, or alleged non-conformance, all of which shall be pursued separately.

Collection Costs. Customer shall reimburse M-Cor for all costs incurred in collecting past due amounts, including reasonable attorneys’ fees and court costs.

Security Interest. Customer grants M-Cor a Purchase Money Security Interest (PMSI) in the Products and proceeds thereof until the full purchase price is paid. Customer authorizes M-Cor to file UCC financing statements to perfect this interest and irrevocably appoints M-Cor as its attorney-in-fact for such purpose.

4.  DELIVERY; TITLE; RISK OF LOSS

Incoterms. Delivery is Ex Works (Incoterms® 2020) M-Cor’s facility. Title and risk of loss pass to Customer upon M-Cor’s delivery of the Products to the carrier. Customer is responsible for selecting and insuring the carrier; if M-Cor arranges carriage at Customer’s request, it does so as Customer’s agent and at Customer’s risk and expense.

Schedule. Delivery dates are estimates only. M-Cor is not liable for any damages arising from delay, and delay shall not be grounds for cancellation.

Quantity Tolerance. Due to manufacturing variances, M-Cor reserves the right to ship and invoice for quantities within plus or minus ten percent (±10%) of the ordered quantity, and the order shall be considered complete upon delivery of a quantity within such tolerance.

5.  CANCELLATION AND LIQUIDATED DAMAGES

Orders are NON-CANCELLABLE and NON-RETURNABLE once an Acknowledgment is issued, except with M-Cor’s prior written consent.

Liquidated Damages. The parties acknowledge that M-Cor’s actual damages from a cancellation are difficult to calculate with precision (MCA § 30-2-718). Therefore, if M-Cor agrees in writing to a cancellation, Customer shall pay liquidated damages—agreed to be a reasonable estimate of M-Cor’s damages and not a penalty—equal to the sum of:

1. the contract price of all finished Products;
2. the full cost of all raw materials and components purchased or committed by M-Cor;
3. the full cost of all work-in-process (WIP);
4. M-Cor’s lost profit margin on any portion of the cancelled order not represented by finished Products; and
5. any non-recoverable engineering or tooling costs.

Such liquidated damages shall be calculated to avoid duplication of recovery, and in no event shall the total liquidated damages exceed the total contract price of the cancelled order.

6.  INSPECTION; ACCEPTANCE

Inspection Window. Customer shall inspect all Products within fifteen (15) business days of receipt.

Waiver. Failure to provide written notice of any visible (patent) non-conformance within this period constitutes unqualified acceptance of the Products and a waiver of all claims with respect to such non-conformance.

Returns. No returns will be accepted without a valid Return Material Authorization (“RMA”) number issued by M-Cor. Authorized returns must be shipped prepaid within ten (10) days of RMA issuance.

7.  LIMITED WARRANTY

Scope. M-Cor warrants solely that, at the time of shipment, the Products will conform to the written specifications expressly identified in the Acknowledgment. This warranty extends only to Customer and is non-transferable.

O-Ring Warranty and Sole Responsibility. With respect to o-rings, M-Cor’s sole and entire responsibility, and Customer’s sole and exclusive remedy, is limited to the replacement of o-rings that are determined by M-Cor, in its sole and reasonable discretion, to be defective. A determination of whether any o-ring is defective shall be made solely by M-Cor, and Customer shall return any o-ring alleged to be defective to M-Cor, freight prepaid and pursuant to a valid RMA, for such evaluation. M-Cor shall have no obligation with respect to o-rings found by M-Cor not to be defective, or that have been subjected to misuse, improper installation, improper storage, chemical or thermal exposure outside specification, alteration, or normal wear.

Conditions and Exclusions. This warranty does not apply to any Product that has been modified, misused, mishandled, improperly installed, improperly stored, or used outside the written specifications, or to damage arising from Customer’s designs or specifications. Any warranty claim must be made in writing within the inspection period set forth in Section 6.

DISCLAIMER: THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES. M-COR HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. NO AFFIRMATION, REPRESENTATION, OR SAMPLE SHALL CREATE ANY WARRANTY NOT EXPRESSLY SET FORTH HEREIN.

8.  EXCLUSIVE REMEDY; LIMITATION OF LIABILITY

Remedy. Except as provided in the following sentence, Customer’s sole and exclusive remedy for breach of warranty is limited to, at M-Cor’s option: (i) repair; (ii) replacement; or (iii) credit or refund of the purchase price for the non-conforming Product. Notwithstanding the foregoing, with respect to o-rings, Customer’s sole and exclusive remedy is replacement as set forth in Section 7, and the options of repair and of credit or refund shall not apply to o-rings.

Limitation of Damages. IN NO EVENT SHALL M-COR BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LINE-DOWN CHARGES, OR RECALL COSTS, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Liability Cap. M-COR’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THE AGREEMENT SHALL NOT EXCEED THE LESSER OF $25,000 OR FIVE (5) TIMES THE AMOUNT PAID FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM. This limitation does not limit M-Cor’s affirmative rights to recover the purchase price, liquidated damages under Section 5, interest, or collection costs.

Montana Statutory Exception. The limitations in this Section 8 shall apply to the maximum extent permitted by law but shall not apply to liability resulting from M-Cor’s fraud, willful injury to the person or property of another, or violation of law (MCA § 28-2-702).

9.  TOOLING

Unless otherwise agreed in a separate written agreement signed by M-Cor, all tooling, fixtures, molds, patterns, and software developed or procured by M-Cor to produce the Products shall remain the sole and exclusive property of M-Cor, regardless of any tooling charges paid by Customer. M-Cor may modify, scrap, or dispose of such tooling at its discretion.

10.  INDEMNIFICATION

Customer shall indemnify, defend, and hold harmless M-Cor and its officers, directors, employees, and agents from and against any and all claims, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to: (i) Customer’s use, resale, or incorporation of the Products into other goods; (ii) M-Cor’s compliance with Customer’s designs, specifications, or instructions; or (iii) Customer’s violation of any applicable law or regulation.

11.  COMPLIANCE WITH LAWS

Customer represents and warrants that it is in compliance with all applicable laws and regulations, including U.S. export control laws (EAR/ITAR). Customer shall not export or re-export the Products in violation of such laws and shall indemnify M-Cor for any breach of this Section.

12.  CONFIDENTIALITY

Each party shall protect the other party’s confidential and proprietary information (“Confidential Information”) with the same degree of care it uses to protect its own confidential information of like importance, and in no event less than a reasonable degree of care, for a period of five (5) years from the date of disclosure. Trade secrets shall be protected for so long as they remain trade secrets under applicable law. Confidential Information does not include information that is or becomes publicly available through no fault of the receiving party, was rightfully known prior to disclosure, or is independently developed without reference to the disclosing party’s information.

13.  FORCE MAJEURE

M-Cor shall not be liable for any delay or failure to perform due to causes beyond its reasonable control, including without limitation acts of God, war, terrorism, epidemics or pandemics, governmental action, labor disputes, raw material or component shortages, supplier failures, or carrier delays. In any such event, M-Cor’s time for performance shall be extended accordingly.

14.  GOVERNING LAW; VENUE

This Agreement is governed by the laws of the State of Montana, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is expressly disclaimed. Any dispute arising out of or relating to this Agreement shall be resolved exclusively in the state or federal courts located in Helena, Montana, and each party irrevocably consents to the personal jurisdiction of such courts and waives any objection to venue therein.

15.  MISCELLANEOUS

1. Waiver. Failure to enforce any provision is not a waiver of future enforcement of that or any other provision.
2. Severability. If any provision is held invalid or unenforceable, the remaining provisions shall remain in full force and effect.
3. Assignment. Customer may not assign this Agreement or any rights hereunder without M-Cor’s prior written consent; any purported assignment in violation hereof is void.
4. Survival. Sections 3, 5, 7, 8, 9, 10, 11, 12, 14, and 15, and any other provision that by its nature should survive, shall survive completion, termination, or cancellation of the Agreement.
5. Entire Agreement. This Agreement supersedes all prior agreements, understandings, and communications, and may be modified only by a writing signed by an authorized representative of M-Cor.