Terms and Conditions

Updated October, 2020

Thank you for your interest in TERA-print, LLC!

This document details the Terms and Conditions of Sale, applicable to TERA-print’s sale of products.

Please read this document carefully.

If you have any inquires about our Terms and Conditions, please contact us at support@teraprint.us.

In consideration of the mutual covenants, terms and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1. Definitions: Capitalized terms have the meanings set out or referred to in this Section 1.

"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity or otherwise.

"Additional Expenses" has the meaning set forth in Section 5.1.

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

"Business Day" means any day except Saturday, Sunday or any other day on which commercial banks located in the State of Illinois are authorized or required by Law to be closed for business.

"Buyer Indemnified Parties" has the meaning set forth in Section 10.3. "Buyer's Facility" means Buyer’s place of business set forth on the Purchase Schedule.

"Claim" means any Action brought against a Person entitled to indemnification under Section 10.

"Confidential Information" has the meaning set forth in Section 13.1.

"Control" (and with correlative meanings, the terms "Controlled by" and "under common Control with") means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract, or otherwise.

"DAP" has the meaning set forth in INCOTERMS 2010.

"Defective" means not conforming to the Product Warranty under Section 9.1.

"Defective Products" means Products shipped by Seller to Buyer pursuant to this Agreement that are Defective.

"Disclosing Party" has the meaning set forth in Section 13.1.

"Effective Date" means the date first set forth above.

"Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non- governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

"Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award or determination entered by or with any Governmental Authority.

"INCOTERMS" means the International Commercial terms published by the International Chamber of Commerce.

"Indemnified Party" has the meaning set forth in Section 10.1.

"Indemnifying Party" has the meaning set forth in Section 10.1.

"Initial Term" has the meaning set forth in Section 6.1.

"Inspection Period" has the meaning set forth in Section 4.6.

"Installation Location" means the installation location set forth in the Purchase Schedule.

"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; and (f) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.

"Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.

"Losses" has the meaning set forth in Section 10.1.

"Nonconforming Products" means any Products received by Buyer from Seller pursuant to a Purchase Schedule that: (a) do not significantly conform to the Specifications; or (b) materially exceed the quantity of Products ordered by Buyer pursuant to this Agreement or any Purchase Schedule. Where the context requires, Nonconforming Products are deemed to be Products for purposes of this Agreement.

"Notice" has the meaning set forth in Section 14.5.

"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents and patent utility models), throughout the world.

"Payment Failure" has the meaning set forth in Section 6.3(a).

"Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.

"Personnel" of a Party means any agents, employees, contractors or subcontractors engaged or appointed by such Party.

"Price" has the meaning set forth in Section 5.1.

"Primary Products" means the primary product(s) set forth in the Purchase Schedule.

"Product Warranty" has the meaning set forth in Section 9.1.

"Products" means the products set forth in the Purchase Schedule, including, without limitation, the Primary Products, and any products sold by Seller to Buyer from time to time after the installation of the Primary Products that may not be set forth in the Purchase Schedule.

"Purchase Schedule" means, collectively, the terms set forth on the Purchase Schedule attached hereto and made a part hereof, as Seller may amend in its sole discretion from time to time and any additional Purchase Schedules Seller and Buyer may execute from time to time. For the avoidance of doubt, the term "Purchase Schedule" does not include any general terms or conditions of any purchase order Buyer may deliver to Seller.

"Receiving Party" has the meaning set forth in Section 13.1.

"Renewal Term" has the meaning set forth in Section 6.2.

"Representatives" means a Party's Affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors and permitted assigns.

"Seller's Facility" means Seller's place of business, which is currently 2145 Sheridan Road, Room JG38, Evanston, Illinois, and may be changed by Seller from time to time upon notice to Buyer.

"Seller's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to Seller.

"Seller's Trademarks" means all Trademarks owned by or licensed to Seller.

"Specifications" means the specifications for the Products set forth in a Purchase Schedule, if any.

"Taxes" means any and all present and future sales, income, stamp and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.

"Term" has the meaning set forth in Section 6.2.

"Trademarks" means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures and other confidential and proprietary information and all rights therein.

"Warranty Period" has the meaning set forth in Section 9.1.

2. Purchase and Sale of Products; Installation.

2.1 Purchase and Sale. Subject to the terms and conditions of this Agreement, Seller shall, on a non-exclusive basis, sell to Buyer, and Buyer shall purchase from Seller, the Products. Unless expressly set forth in writing, the terms and conditions of this Agreement shall govern all sales of Products by Seller to Buyer whether or not a Purchase Schedule is executed.

2.2 Terms of Agreement Prevail Over Buyer's Purchase Order. The Parties intend for the express terms and conditions contained in this Agreement (including any Schedules and Exhibits hereto) to exclusively govern and control each of the Parties' respective rights and obligations regarding the subject matter of this Agreement, and this Agreement is expressly limited to such terms and conditions. The terms of this Agreement prevail over any terms or conditions contained in any other documentation and expressly exclude any of Buyer's general terms and conditions contained in any purchase order or other document issued by Buyer. In the event of any conflict between the terms of this Agreement and the terms of any purchase order or any other document issued by Buyer, the terms of this Agreement prevail.

2.3 Installation of Primary Products; Support.

(a) Within ten (10) days of receiving the payment deposit from Buyer as set forth in the Purchase Schedule, Seller shall notify Buyer of the proposed installation schedule for the Primary Products, including, without limitation, when Seller's personnel will arrive at the Installation Location and any conditions for Buyer's Facility for installation, and thereafter Seller shall install the Product at the Installation Location. If the proposed installation schedule is not acceptable to Buyer, Buyer shall notify Seller within two (2) Business Days of receiving Seller's proposed installation schedule, and Seller and Buyer shall agree on a mutually acceptable installation schedule.

(b) In the event Seller is delayed in installation because Buyer's Facility is not ready for the installation in accordance with the preceding section or otherwise on account of Buyer's acts or omissions, Buyer shall reimburse Seller upon demand for any costs that Seller may incur on account of such delay, and Seller reserves the right to establish a new installation schedule upon notice to Buyer.

(c) Seller will provide initial support and training in connection with the Primary Products following the installation of the Primary Products. Seller shall determine whether the support and training will be in person, by telephone or otherwise, provided for up to 365 (1 Year) Business Days following installation, the support and training will be in person. In the event Buyer requires support on account of any damage to the Primary Products that was not caused by Seller, and after the first anniversary of the installation, upon notice to Buyer, Seller may charge Buyer for support and training, including, without limitation, travel and expenses related to visas, and Buyer shall pay any invoices for support and training upon the receipt of Seller's invoice.

3. Ordering Procedure.

3.1 Purchase Schedule. For each purchase and sale of Products, Buyer and Seller shall execute a completed Purchase Schedule, in written form via e-mail, overnight delivery or mail. For the avoidance of doubt, any variations made to the terms and conditions of this Agreement by Buyer (or any other terms included besides the Purchase Schedule) in any purchase order are void and have no effect.

3.2 Binding Effect of Purchase Schedule. Until both Seller and Buyer execute and exchange a Purchase Schedule, neither party is bound for the purchase and sale of any particular Products.

3.3 Cancellation of Purchase Schedule. Seller may cancel a previously exchanged Purchase Schedule, which it may do without liability or penalty, and without constituting a waiver of any of Seller's rights or remedies under this Agreement or any Purchase Schedule, by providing written notice to Buyer specifying the applicable date of rejection or cancellation:

(a) if any one or more of the events described under Sections 6.3(a)-(d) has occurred; or

(b) pursuant to Seller's rights under the last sentence of Section 5.3.

4. Shipment, Delivery, Acceptance and Inspection.

4.1 Shipment. Unless otherwise expressly agreed by the Parties in writing, Buyer shall select the method of shipment of and the carrier for the Products. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Products shipped, in accordance with the payment terms specified herein, whether such shipment is in whole or partial fulfillment of a Purchase Schedule.

4.2 Packaging and Labeling. Seller shall properly pack, mark and ship Products and provide Buyer with shipment documentation showing the Purchase Schedule number, Seller's identification number for the subject Products, the quantity of pieces in shipment, the number of cartons or containers in shipment, Seller's name, the bill of lading number and the country of origin.

4.3 Delivery. Unless otherwise expressly agreed by the Parties in writing, Seller shall deliver the Products to Buyer's Facility, using Seller's standard methods for packaging and shipping such Products. All Prices are on a DAP basis.

4.4 Late Delivery. Any time quoted by Seller for delivery is an estimate only. Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. No delay in the shipment or delivery of any Products relieves Buyer of its obligations under this Agreement, including, without limitation, accepting any delivery of any remaining installment(s) of Products.

4.5 Transfer of Title and Risk of Loss.

(a) Title to Products shipped under any Purchase Schedule passes to Buyer upon delivery of such Products at Buyer's Facility.

(b) Risk of loss to Products ordered under any Purchase Schedule passes to Buyer upon Seller's delivery of such Products at Buyer's Facility to the carrier.

4.6 Inspection. Buyer shall inspect Products received under this Agreement within seven (7) days of receipt and, if applicable, installation of such Products (the "Inspection Period") and either accept the Products by executing the completion and acceptance certificate attached to this Agreement (the "Certificate"), or, only if any such Products are Nonconforming Products, reject such Products. In the event Buyer fails to timely deliver the Certificate, Buyer will be deemed to have accepted the Products unless it provides Seller with written Notice of any Nonconforming Products during the Inspection Period, stating with specificity all defects and nonconformities, and furnishing such other written evidence or other documentation as may be reasonably required by Seller (including the subject Products, or a representative sample thereof, which Buyer contends are Nonconforming Products). All defects and nonconformities that are not so specified will be deemed waived by Buyer, such Products shall be deemed to have been accepted by Buyer, and no attempted revocation of acceptance will be effective. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall determine, in its reasonable discretion, whether the Products are Nonconforming Products. If Seller determines that such Products are Nonconforming Products, Seller shall, in its sole discretion, either:

(a) replace such Nonconforming Products with conforming Products; or

(b) refund to Buyer such amount paid by Buyer to Seller for such Nonconforming Products returned by Buyer to Seller.

Buyer shall ship, at Seller's expense and risk of loss, all Nonconforming Products to Seller's Facility or to such other location as Seller may instruct Buyer in writing. If Seller exercises its option to replace Nonconforming Products, Seller shall ship from Seller's Facility, at Seller's expense and risk of loss, the replacement Products.

BUYER ACKNOWLEDGES AND AGREES THAT THE REMEDIES SET FORTH IN THIS SECTION 4.6 ARE BUYER'S EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING PRODUCTS, SUBJECT TO BUYER'S RIGHTS UNDER SECTION 9.3 WITH RESPECT TO ANY SUCH PRODUCTS FOR WHICH BUYER HAS ACCEPTED DELIVERY UNDER THIS SECTION 4.6.

4.7 Right of Substitution. Notwithstanding the forgoing, in the event the model of Primary Product set forth in a Purchase Schedule is not available, Seller may, in its sole discretion and upon notice to Buyer, deliver an alternative model of Primary Product (the "Substituted Product"), and the Substituted Product shall not be considered a Nonconforming Product for purposes of Section 4.6; provided, however, Seller shall be obligated to upgrade the Substituted Product to the desired model as soon as reasonably possible after delivery of the Substituted Product unless Buyer provides written notice to Seller that it accepts the Substituted Product. The Price for the Substituted Product shall be equal to a percentage of the Price as set forth on the Purchase Schedule. Buyer shall pay the remaining balance of the Price set forth on the Purchase Schedule promptly after Seller upgrades the Substituted Product to the desired model.

4.8 Limited Right of Return. Except as provided under Section 4.6 and Section 9.3, Buyer has no right to return Products shipped to Buyer pursuant to this Agreement.

5. Price and Payment.

5.1 Price. Buyer shall purchase the Products from Seller at the prices set forth on the Purchase Schedule ("Prices"). Prices do not include, and Buyer shall be solely responsible for, any and all Taxes, transfer fees, import and export fees, agent or facilitator fees, and any other charges, costs or expenses imposed by any Person on, or measured by, the transactions between Seller and Buyer contemplated by this Agreement (collectively, the "Additional Expenses"). In the event Seller is required to pay any such Additional Expenses, Buyer shall promptly reimburse Seller upon receipt of written evidence of payment of such Additional Expenses that have not been included in an invoice provided by Seller to Buyer.

5.2 Payment Terms. Seller shall issue an invoice to Buyer for, and in accordance with, each Purchase Schedule setting forth in reasonable detail the amounts payable by Buyer under this Agreement. Buyer shall pay to Seller all invoiced amounts upon receipt of such invoice. Buyer shall make all payments in US dollars, by wire transfer, in accordance with the instructions set forth on the applicable invoice.

5.3 Late Payments. Buyer shall pay interest on all payments that are not paid in strict accordance with Section 5.2, calculated daily and compounded monthly, at the lesser of the rate of two percent (2%) per month or the highest rate permissible under applicable Law. Buyer shall also reimburse Seller for all costs incurred by Seller in collecting any late payments, including attorneys' fees and court costs. In addition to all other remedies available under this Agreement or at Law (which Seller does not waive by the exercise of any rights under this Agreement), if Buyer fails to pay any amounts when due under this Agreement, Seller may (a) suspend the delivery of any Products, (b) cancel accepted Purchase Schedules pursuant to the terms of Section 3.3, or (c) terminate this Agreement pursuant to the terms of Section 6.3(a).

5.4 No Set-off Right. Buyer shall not, and acknowledges that it will have no right, under this Agreement, any Purchase Schedule, any other agreement, document or Law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller or any of its Affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or Seller's Affiliates, whether relating to Seller's or its Affiliates' breach or non-performance of this Agreement, any Purchase Schedule, any other agreement between (a) Buyer or any of its Affiliates and (b) Seller or any of its Affiliates, or otherwise.

5.5 Security Interest. Buyer hereby grants Seller a security interest in all Products purchased hereunder and the proceeds therefrom to secure Buyer's performance of its obligations under this Agreement. Buyer authorizes Seller to file a financing statement or any other documents necessary to perfect, establish or protect such security interest, and Buyer shall execute any such statements or other documentation under applicable Laws necessary to perfect Seller's security interest in such Products.

6. Termination.

6.1 Seller's Right to Terminate. Seller may terminate this Agreement, by providing written Notice to Buyer:

(a) if Buyer fails to pay any amount when due under this Agreement ("Payment Failure");

(b) if Buyer is in material breach of any covenant of Buyer under this Agreement (other than committing a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within thirty (30) days after Buyer's receipt of written Notice of such breach; provided, however, that if the nature of Buyer's obligation is such that more than thirty (30) days are required for its performance, Seller may not terminate this Agreement if Buyer commences and diligently pursues to cure such breach within the thirty (30) day period and thereafter diligently prosecutes the same to completion, provided that no such cure shall extend beyond ninety (90) days;

(c) if Buyer (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business; or

(d) if, without obtaining Seller's prior written consent, (i) Buyer sells, leases or exchanges a material portion of Buyer's assets, (ii) Buyer merges or consolidates with or into another Person, or (iii) a change in Control of Buyer occurs.

Any termination under this Section 6.3 will be effective on Buyer's receipt of Seller's written Notice of termination or such later date (if any) set forth in such Notice.

6.2 Buyer's Right to Terminate. Buyer may terminate this Agreement, by providing written Notice to Seller:

(a) if Seller is in material breach of any warranty or covenant of Seller under this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Seller within thirty (30) days after Seller's receipt of written Notice of such breach; provided, however, that if the nature of Seller's obligation is such that more than thirty (30) days are required for its performance, Buyer may not terminate this Agreement if Seller commences and diligently pursues to cure such breach within the thirty (30) day period and thereafter diligently prosecutes the same to completion, provided that no such cure shall extend beyond ninety (90) days; or

(b) if Seller (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

6.3 Effect of Termination.

(a) Upon the termination of this Agreement, all amounts due from Buyer to Seller under this Agreement of any kind, shall become immediately due and payable to Seller, without further notice to Buyer.

(b) Termination of this Agreement will not affect any rights or obligations of the Parties that:

(i) come into effect upon or after termination or expiration of this Agreement; or

(ii) otherwise survive the expiration or earlier termination of this Agreement pursuant to Section 15.4 and were incurred by the Parties prior to such expiration or earlier termination.

(c) Any Notice of termination under this Agreement automatically operates as a cancellation of any deliveries of Products to Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Products had been accepted by Seller. With respect to any Products that are still in transit upon termination of this Agreement, Seller may require, in its sole discretion, that all sales and deliveries of such Products be made on either a cash-only or certified-check basis.

(d) Subject to Section 6.5(b), the Party terminating this Agreement, or in the case of the expiration of this Agreement, each Party, shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement.

7. Certain Obligations of Buyer.

7.1 Certain Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Buyer nor any Buyer Personnel shall:

(a) make any representations, warranties, guarantees, indemnities, similar claims or other commitments:

(i) actually, apparently or ostensibly on behalf of Seller, or

(ii) to any Person with respect to the Products, which are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims or other commitments in this Agreement or any written documentation provided by Seller to Buyer.

(b) engage in any unfair, competitive, misleading or deceptive practices respecting Seller, Seller's Trademarks or the Products, including any product disparagement; or

(c) separate any software or accessories sold, bundled or packaged with any Product from such Product, reverse engineer the Products or sell, license or distribute such software on a standalone basis, or remove, translate or modify the contents or documentation of or related to such software or accessories, including any customer license agreements or warranty statements.

7.2 Academic Use Restriction. BUYER AGREES THAT THE PRODUCTS SHALL ONLY BE USED FOR SCIENTIFIC OR ACADEMIC PURPOSES. BUYER SHALL NOT RESELL THE PRODUCTS TO ANY PERSON OR USE THE PRODUCTS FOR COMMERCIAL OR FOR PROFIT PURPOSES. BUYER ACKNOWLEDGES AND AGREES THAT SELLER WOULD NOT HAVE SOLD ANY PRODUCTS TO BUYER BUT FOR THE RESTRICTIONS SET FORTH IN THIS SECTION AND ANY BREACH OF THIS AGREEMENT BY BUYER MAY CAUSE SELLER IRREPARABLE DAMAGE, SELLER SHALL BE ENTITLED AS A MATTER OF RIGHT AND WITHOUT NOTICE TO BUYER TO SEEK EQUITABLE RELIEF BY WAY OF INJUNCTION OR OTHERWISE IN THE EVENT OF ANY VIOLATION OF THE PROVISIONS OF THIS AGREEMENT, IT BEING UNDERSTOOD THAT EXERCISE OF SUCH RIGHT SHALL NOT CONSTITUTE A WAIVER OF ANY OTHER OR ADDITIONAL RIGHTS AT LAW OR PURSUANT TO THE TERMS OF THIS AGREEMENT WHICH SELLER MAY HAVE AGAINST BUYER AS A RESULT OF SUCH BREACH.

8. Compliance with Laws. Buyer shall at all times comply with all Laws applicable to this Agreement, Buyer's performance of its obligations hereunder and Buyer's use or sale of the Products. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses and permits necessary to conduct its business relating to the purchase or use of the Products and (b) not engage in any activity or transaction involving the Products that violates any Law. Seller shall comply with all United States Laws in connection with exporting the Products to Buyer's Facility. As a condition to the delivery of the Products, Buyer shall comply with all import Laws. Seller, in its sole discretion, may require Buyer to provide reasonably satisfactory written evidence that Buyer has complied with all import Laws.

9. Limited Primary Product Warranty. Seller warrants to Buyer (the "Primary Product Warranty") that the Primary Product will be free from material defects in material and workmanship for a period of one (1) year from the date of shipment of the Primary Products, subject to the provisions of Section 9.2 (the "Warranty Period"). In the event any applicable Law requires that the Warranty Period be longer than one (1) year, Buyer agrees that, upon notice to Buyer, Seller may impose a charge for such longer period, and Buyer shall pay Seller's invoice for such charge upon receipt.

9.1 Primary Product Warranty Limitations. The Primary Product Warranty does not apply to any Primary Product that:

(a) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller;

(b) has been reconstructed, repaired, modified or altered by Persons other than Seller or its authorized Representative; or

9.2 Buyer's Exclusive Remedy for Defective Primary Products. Notwithstanding any other provision of this Agreement, this Section 9.3 contains Buyer's exclusive remedy for Defective Primary Products. Buyer's remedy under this Section 9.3 is conditioned upon Buyer's compliance with its obligations under Section 9.3(a) and Section 9.3(b) below. During the Warranty Period, with respect to any allegedly Defective Primary Products:

(a) Buyer shall notify Seller, in writing, of any alleged claim or defect within seven (7) Business Days from the date Buyer discovers, or upon reasonable inspection should have discovered, such alleged claim or defect (but in any event before the expiration of the applicable Warranty Period);

(b) Buyer shall ship, at Seller's expense and risk of loss, such allegedly Defective Primary Products to Seller's Facility for inspection and testing by Seller;

(c) If Seller's inspection and testing reveals, to Seller's reasonable satisfaction, that such Primary Products are Defective and any such defect has not been caused or contributed to by any of the factors described under Section 9.2 above, Seller shall in its sole discretion and at its expense, (i) repair or replace such Defective Primary Products, or (ii) refund the Price of such Defective Primary Products; and

(d) If Seller exercises its option to repair or replace such Defective Primary Products, Seller shall, after receiving Buyer's shipment of such Defective Primary Products, ship to Buyer, at Seller's expense and risk of loss, the repaired or replaced Primary Products to Seller's Facility.

Buyer has no right to return for repair, replacement, credit or refund any Primary Product except as set forth in this Section 9.3 (or if otherwise applicable, Section 4.6). In no event shall Buyer reconstruct, repair, alter or replace any Primary Product, in whole or in part, either itself or by or through any third party.

THIS SECTION 9.3 SETS FORTH BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRIMARY PRODUCT WARRANTY SET FORTH IN SECTION 9.1.

9.3 DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN SECTION 9.1, (A) NEITHER SELLER NOR ANY PERSON ON SELLER'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, EITHER ORAL OR WRITTEN, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 9.1 OF THIS AGREEMENT. BUYER ACKNOWLEDGES AND AGREES THAT SELLER DOES NOT PROVIDE ANY WARRANTIES WITH RESPECT TO ANY PRODUCTS OTHER THAN THE PRIMARY PRODUCTS.

10. Indemnification.

10.1 Indemnification. Subject to the terms and conditions of this Agreement, including those set forth in Section 9.2, each party (as "Indemnifying Party") shall indemnify, defend and hold harmless the other Party and its Representatives, officers, directors, employees, agents, Affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, "Losses"), arising out or resulting from any third-party Claim alleging:

(a) a material breach or non-fulfillment of any representation, warranty or covenant under this Agreement by Indemnifying Party or Indemnifying Party's Personnel;

(b) any negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of this Agreement;

(c) any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or negligent acts or omissions of Indemnifying Party or its Personnel; or

(d) any failure by Indemnifying Party or its Personnel to comply with any applicable Laws.

Notwithstanding anything to the contrary in this Agreement, this Section 9.1 does not apply to any Claim (whether direct or indirect) for which a sole or exclusive remedy is provided for under another section of this Agreement, including, without limitation, pursuant to Section 9.2.

10.2 Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, an Indemnifying Party is not obligated to indemnify or defend (if applicable) an Indemnified Party against any Claim if such Claim or corresponding Losses arise out of or result from, in whole or in part, the Indemnified Party's or its Personnel's:

(a) negligence or more culpable act or omission (including recklessness or willful misconduct);

(b) bad faith failure to comply with any of its obligations set forth in this Agreement; or

(c) use of the Products in any manner not otherwise authorized under this Agreement or that does not materially conform with any usage instructions provided by Seller.

10.3 Seller Intellectual Property Indemnification. Subject to terms and conditions of this Agreement, including Section 9.4 and Section 10, Seller shall indemnify, defend and hold harmless Buyer and its Representatives (collectively, the "Buyer Indemnified Parties") from and against all Losses arising out of any Claim of a third party alleging that any of the Products infringe any Intellectual Property Right of a third party. If the Products, or any part of the Products, becomes, or in Seller's opinion is likely to become, subject to a third-party Claim that qualifies for intellectual property indemnification coverage under this Section 9.3, Seller shall, at its sole option and expense, notify Buyer in writing to cease using all or a part of the Products, in which case Buyer shall immediately cease all such use of such Products on receipt of Seller's Notice.

10.4 Exceptions to Seller's Intellectual Property Indemnification. Notwithstanding anything to the contrary in this Agreement, Seller is not obligated to indemnify or defend any Buyer Indemnified Party against any Claim under Section 9.3 if such Claim or corresponding Losses arise out of or result from, in whole or in part:

(a) the circumstances described in Section 9.2(a), Section 9.2(b) and Section 9.2(c);

(b) Buyer's marketing, advertising, promotion or sale or any product containing the Products;

(c) use of the Products, including use of the Products in combination with any products, materials or equipment supplied to Buyer by a Person other than Seller or its authorized Representatives, if the infringement would have been avoided by the use of the Products or use of the Products not so combined;

(d) any modifications or changes made to the Products by or on behalf of any Person other than Seller or its Representatives, if the infringement would have been avoided without such modification or change; or

(e) goods, products (including Products) or assemblies manufactured or designed by Buyer.

10.5 EXCLUSIVE REMEDY. THIS SECTION 10 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF SELLER AND EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY AND BUYER INDEMNITEE FOR ANY LOSSES OR DAMAGES COVERED BY THIS SECTION 10.

11. Limitation of Liability.

11.1 NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. IN NO EVENT SHALL SELLER OR ITS REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

11.2 MAXIMUM LIABILITY FOR DAMAGES. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SELLER PURSUANT TO THIS AGREEMENT IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

11.3 ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.

12. Intellectual Property Rights.

12.1 Ownership. Buyer acknowledges and agrees that, except to the extent expressly provided in Section 12.3 below:

(a) Seller (or its licensors) will retain all Intellectual Property Rights used to create, embodied in, used in and otherwise relating to the Products and any of their component parts;

(b) any and all Seller's Intellectual Property Rights are the sole and exclusive property of Seller or its licensors;

(d) any goodwill derived from the use by Buyer of Seller's Intellectual Property Rights inures to the sole and exclusive benefit of Seller;

(e) if Buyer acquires any Intellectual Property Rights in or relating to any product (including any Product) purchased under this Agreement (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either Party; and

(f) Buyer shall use Seller's Intellectual Property Rights only in accordance with this Agreement and any instructions of Seller.

12.2 Prohibited Acts. Buyer shall not:

(a) take any action that interferes with any of Seller's rights in or to Seller's Intellectual Property Rights, including Seller's ownership or exercise thereof;

(b) challenge any right, title, or interest of Seller in or to Seller's Intellectual Property Rights;

(d) register or apply for registrations, anywhere in the world, for Seller's Trademarks or any other Trademark that is similar to Seller's Trademarks or that incorporates Seller's Trademarks in whole or in confusingly similar part;

(e) use any mark, anywhere in the world, that is confusingly similar to Seller's Trademarks;

(f) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products or any Seller's Trademarks;

(g) misappropriate any of Seller's Trademarks for use as a domain name without prior written consent from Seller; or

(h) alter, obscure or remove any Seller's Trademarks, or Trademark or copyright notices or any other proprietary rights notices placed on the Products, marketing materials or other materials that Seller may provide.

12.3 Limited License. Seller hereby grants to Buyer a non-exclusive license to use and operate all software delivered with, and necessary to operate, the Products for Buyer's ordinary business purposes, and for no other purposes. For each Product, the foregoing license shall be effective only as long as Buyer retains physical possession and ownership of the Product. Upon any disposition of any kind of the Product, either in terms of physical possession or ownership thereof, the software license associated with the Product shall immediately and irrevocably terminate. Other than the limited license granted to Buyer in this Section 12.3, nothing in this Agreement or elsewhere gives Buyer any right, authorization, license, or permission to, without limitation: reproduce the software; prepare derivative works based upon the software; or distribute the software, or copies thereof, to the public by sale or other transfer or ownership, or by rental, lease, or lending.

12.4 Seller's Trademarks. Nothing in this Agreement or elsewhere gives Buyer the right, authorization, license, or permission to use any of Seller's Trademarks, including, without limitation, TERA-print or TERA-Fab, or any mark similar thereto.

13. Confidentiality.

13.1 Scope of Confidential Information. From time to time, either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs, Products and services, confidential information and materials comprising or relating to Intellectual Property Rights, Trade Secrets, third-party confidential information and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," is collectively referred to as "Confidential Information" hereunder. Notwithstanding the foregoing, Confidential Information does not include information that, at the time of disclosure and as established by documentary evidence:

(a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 13 by the Receiving Party or any of its Representatives;

(b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;

(c) was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party;

(d) was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or

(e) is required to be disclosed pursuant to applicable Law.

13.2 Protection of Confidential Information. The Receiving Party shall, for five (5) years from receipt of such Confidential Information:

(a) protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;

(b) not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and

(c) not disclose any such Confidential Information to any Person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

The Receiving Party shall be responsible for any breach of this Section 13 caused by any of its Representatives. At any time, at the Disclosing Party's written request, the Receiving Party and its Representatives shall promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.

14. Miscellaneous.

14.1 Further Assurances. Upon a Party's reasonable request, the other Party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.

14.2 Relationship of the Parties. The relationship between Seller and Buyer is solely that of vendor and vendee, and they are independent contracting parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement or undertaking with any third party.

14.3 Entire Agreement. This Agreement, including and together with the Purchase Schedule and any related exhibits and schedules, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

14.4 Survival. Subject to the limitations and other provisions of this Agreement, any provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement.

14.5 Notices. All notices, requests, consents, claims, demands, waivers and other communications under this Agreement (each, a "Notice") must be in writing and addressed to the other Party at its address set forth below (or to such other address that the receiving Party may designate from time to time in accordance with this Section 15.5). All Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 14.5.

14.6 Interpretation. For purposes of this Agreement: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (i) to sections, exhibits, schedules, attachments and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (ii) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (iii) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.

14.7 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

14.8 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

14.9 Amendment and Modification. No amendment to this Agreement is effective unless it is in writing and signed by each Party.

14.10 Waiver.

(a) No waiver under this Agreement is effective unless it is in writing and signed by the Party waiving its right.

(b) Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.

(c) None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege or condition arising from this Agreement:

(i) any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or

(ii) any act, omission or course of dealing between the Parties.

14.11 Assignment. Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller, which shall not be unreasonably withheld, delayed or conditioned.

14.12 Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

14.13 No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

14.14 Governing Law; Forum Selection. The Agreement, including all exhibits, schedules, attachments and appendices to the Contract, and all matters arising out of or relating to the contract, are governed by, and construed in accordance with, the Laws of the State of Illinois, United States of America, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Products does not apply to this Agreement. Disputes between the Parties with respect to the Contract shall be brought solely and exclusively in the federal and state courts located in County of Cook, State of Illinois, U.S.A. The Parties consent to the sole and exclusive jurisdiction of the federal and state courts located in County of Cook, State of Illinois, U.S.A., and waive all objections to venue and jurisdiction within the forum.

14.15 Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

14.16 Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, if such failure or delay is caused by or results from acts beyond Seller's control, including: (a) acts of nature; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) requirements of Law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any Governmental Authority (whether or not having the effect of Law); (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns or other industrial disturbances; (i) shortages of or delays in receiving raw materials; or (j) shortage of adequate power or transportation facilities.