Sales Terms & Conditions Revision 4.0 | 2024-10-15

1. GENERAL

DSTI agrees to provide products ordered by Customer (the “Products”) in accordance with these Terms and Conditions, which shall be deemed a part of any Purchase Order and shall be incorporated therein by this reference. If Customer has not otherwise agreed to these Terms and Conditions, Customer’s accepting delivery, making payment, or making use of the Products will constitute Customer’s acknowledgment of its agreement to these Terms and Conditions. To the extent of any conflict or inconsistency between these Terms and Conditions and the terms and conditions set forth in any Customer purchase order, order confirmation or other document, these Terms and Conditions shall take precedence. If Customer deems any of these Terms and Conditions not to be acceptable, Customer’s recourse shall be to cancel Customer’s order by written notice to DSTI within five (5) days of receipt of these Terms and Conditions. Any Purchase Order, these Terms and Conditions, and any attachments hereto shall be collectively referred to herein as the “Agreement.”

2. PAYMENT TERMS

In consideration of the delivery of the Products, Customer agrees to pay DSTI the purchase price as set forth in the Purchase Order or otherwise specified by DSTI. If a credit terms account has been established, and unless otherwise agreed to in writing by DSTI, payment of such purchase price shall be due within thirty (30) days of the date of DSTI’s invoice for the Product. The purchase price shall be payable in U.S. Currency. If Customer believes that any invoice is incorrect, Customer must notify DSTI in writing within twenty (20) days after receipt of the applicable invoice. If Customer does not so notify DSTI, Customer shall be deemed to have waived the right to further dispute the accuracy of the invoice. If at any time DSTI determines that Customer’s financial condition or credit rating does not justify a sale on credit, DSTI reserves the right to require advance payment, a personal guarantee and/or may ship C.O.D.

3. LATE PAYMENT

All payments not made as and when required hereunder shall bear interest at the rate of one and one-half percent (1.5%) per month, or the maximum rate allowed by law, whichever is less, commencing on the date that the purchase price payment was due pursuant to Section 2 above. Delinquent account balances are subject to placement for collection, and Customer will pay any reasonable fees and expenses incurred by DSTI for such collection activities including attorneys’ fees. DSTI reserves the right to cancel or suspend any outstanding orders upon written notice to Customer in the event of Customer’s failure to make timely payment hereunder.

4. TAXES

DSTI’s prices do not include any personal property, value-added, sales, excise, use or other taxes. Customer shall be liable for all such taxes whether or not invoiced by DSTI. Any sales tax to be collected by DSTI shall be reflected on the Purchase Order and/or invoice.

5. SHIPMENT

Unless otherwise agreed in writing, (i) delivery will be FCA Free Carrier DSTI’s Premises (Incoterms 2010) and delivery will be Exworks DSTI’s premises (Incoterms 2010) for international shipments; (ii) DSTI shall have the right to determine the method of shipment and routing of the Products, and (iii) Customer shall pay all Product shipping and delivery charges, which will be included on Customer’s invoice. DSTI shall not be liable for damages caused by delays in shipping or delivery for any reason whatsoever. Delay in the delivery of any Products hereunder shall not relieve Customer from the obligation to accept and pay for such Products.

6. SERVICES

Unless otherwise agreed in writing by the parties, DSTI shall have no obligation for installation of the Products or the performance of any work at Customer’s facility or other services in connection with Products.

7. EXPRESS WARRANTY

DSTI warrants all Products to be free of defects in workmanship or materials for a term of two (2) years from the date of delivery of the Products. Field services or labor provided to Customer by DSTI at Customer’s site shall be performed in a good, workmanlike manner in accordance with industry standards and warranted for a period of ninety (90) days after completion of the service provided. In the event of a breach of this express field services or labor warranty, DSTI’s sole responsibility shall be to re-perform the field services or labor in question. The Customer shall promptly notify DSTI if it deems any of the Products to be noncompliant with this express warranty and return the affected to DSTI, at Customer’s expense. If DSTI determines, after testing, that the Product has failed during the warranty period because of a defect in workmanship and material, DSTI’s sole responsibility under this express warranty shall be either to repair or replace, at DSTI’s option, any such Product. Return shipping of repaired or replacement Products within the continental United States shall be at DSTI’s expense. CUSTOMER ACKNOWLEDGES THAT THE REMEDY EXPRESSED HEREIN IS ITS SOLE AND EXLUSIVE REMEDY UNDER ANY AND ALL CIRCUMSTANCES. Notwithstanding any other provision of this Agreement, materials or Products manufactured by persons other than DSTI are sold exclusively under such warranty as the manufacturer provides to DSTI. As an accommodation to Customer, DSTI will assign to Customer any rights it may have arising out of the warranties given to DSTI by any manufacturer of materials or Products purchased by DSTI and resold to Customer, to the extent permissible or enforceable by DSTI. In no event shall DSTI be responsible to Customer for warranties on purchased Products or materials that are more extensive than the warranty provided to DSTI by the manufacturer. his warranty does not extend to any Product that is: (1) subjected to misuse, abuse, neglect, accident, improper repair, improper installation or abnormal operation; (2) installed, altered or repaired by persons not authorized by DSTI; (3) damaged during shipment; (4) consumable parts; (5) normal wear and tear; or (6) not manufactured or designed by DSTI.

8. INTELLECTUAL PROPERTY AND NRE

Payment for Non-Recurring Engineering (NRE) services by Customer does not confer/transfer any rights of the intellectual property related to a design. NRE services are utilized for the effort required to complete drawings, documentation and compliance matrixes and are not utilized for concept and design. All rights, title and interests in and to the Deliverables and any and all intellectual property rights and other rights therein, including, without limitation, all trademark rights, patent rights, copyrights and trade secret rights in the design, shall be and remain the property of DSTI. It is not the intent of this Agreement to provide for joint developments. This Agreement shall not be construed as conferring or granting on a receiving Party by implication, estoppel or otherwise, any right, title or interest in, or any license under any patent or pending patent, trade secrets, know-how or other intellectual property right now or subsequently owned by a disclosing Party. Nothing herein shall be construed as transferring ownership of any intellectual property of a Party existing prior to the date hereof or conceived, discovered, invented, created, developed and/or reduced to practice by a Party after the date hereof. The receiving Party shall not reverse engineer any Confidential Information for any purpose.

9. Disclaimer

CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EXPRESS WARRANTY SET FORTH IN SECTION 7 ABOVE IS THE SOLE WARRANTY WITH REGARD TO THE PRODUCTS. DSTI EXPRESSLY DISCLAIMS ANY OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO, THEIR QUALITY, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR CUSTOMER. CUSTOMER MODIFICATION OR DISASSEMBLY OF THE PRODUCTS WILL VOID THE WARRANTY.

10. LIMITATION OF LIABILITY

IN NO EVENT SHALL DSTI BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THE PRODUCTS, THE AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, IRRESPECTIVE OF WHETHER LIABILITY IS ASSERTED IN CONTRACT, TORT, OR OTHERWISE OR WHETHER DSTI HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. DSTI’S LIABILITY TO CUSTOMER UNDER ANY LEGAL THEORY SHALL IN NO EVENT EXCEED THE LESSER OF (A) PURCHASE PRICE OF THE APPLICABLE PRODUCTS SOLD TO CUSTOMER OR (B) CUSTOMER’S DIRECT DAMAGES ACTUALLY INCURRED.

11. FORCE MAJEURE

DSTI shall not be liable for any delays in delivery, or for non-delivery or nonperformance in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of either DSTI or its suppliers including but not limited to one or more of the following causes: non-availability or shortage of materials, fire, destruction of plant, strike, labor disputes, epidemic, flood, delay in transportation, war, insurrection, embargo, acts, or demands or requirements of any governmental body. The existence of any such cause or causes of delay shall extend the time of performance to the extent of the resulting delay.

12. CANCELLATION, COUNTERMAND AND RETURN OF GOODS

Orders accepted by DSTI cannot be cancelled or countermanded, or shipments deferred or product returned, except with the prior written consent of DSTI and upon such terms that may be reasonably established by DSTI, including but not limited to Customer’s payment to DSTI for all costs incurred for work in progress with respect to the Purchase Order.

13. NON-DISCLOSURE

Customer shall not disclose any technical or other proprietary information furnished by DSTI or obtained by virtue of Customer’s dealings with DSTI and shall make all efforts to ensure that such technical or other proprietary information is kept confidential. Title to such technical or other proprietary information disclosed or supplied by DSTI to Customer shall at all times remain the absolute property of DSTI.

14. INDEMNITY

Customer will defend, indemnify and hold DSTI harmless from and against all damages, losses, claims and expenses, including reasonable attorneys’ fees incurred by DSTI, as a result of any breach by Customer of the Agreement, or any violation by Customer of applicable law.

15. ASSIGNMENT

The Agreement may not be assigned or delegated by any party without the prior written consent of the other party. The Agreement may only be amended or modified by a writing duly executed by the parties hereto.

16. SEVERABILITY, WAIVER, AND SURVIVAL

In case any provision in or obligation under the Agreement shall be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions or obligations shall not in any way be affected or impaired thereby. The waiver of any provision or condition or the breach of any term will not be a waiver of any subsequent breach of the same or any other term or condition. The Agreement constitutes the complete and final integrated agreement between the parties in regards to the specific terms contained herein. All prior negotiations, discussions and representations are merged into the Agreement. The Agreement shall be binding upon and inure to the benefit of the parties and their respective heirs, personal representatives, successors, and assigns. The acknowledgements, covenants and obligations of the parties set forth in the Agreement shall survive the expiration or termination of the Agreement, unless inapplicable by their terms.

17. INSURANCE

DSTI agrees to maintain insurance that is customary in the industry in connection with the performance of its obligations under the Agreement.

18. EXPORT CONTROL

In consideration of the delivery of the products, (a) Customer agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the requirements of the Arms Export Control Act, 22 U.S.C.2751-2794, including the International Traffic in Arms Regulation (ITAR), 22 C.F.R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 730-774; including the requirement for obtaining any export license or agreement, if applicable. Without limiting the foregoing, Customer agrees that it will not transfer any export controlled technical data, article or services, to include transfer to foreign persons employed by or associated with, or under contract to Customer or Customer’s lower-tier suppliers, without the authority of an export license, agreement, or applicable exemption or exception. (b) Customer agrees to notify DSTI if any deliverable under the Agreement is restricted by export control laws or regulations. (c) Customer shall immediately notify DSTI if Customer is, or becomes, listed in any Denied Parties List or if Customer’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. Government entity or agency. (d) If Customer is engaged in the business of either exporting or manufacturing (whether exporting or not) defense articles or furnishing defense services, Customer represents that it is registered with the Office of Defense Trade Controls, as required by the ITAR, and it maintains an effective export/import compliance program in accordance with the ITAR. (e) Where Customer is a signatory under a DSTI export license or export agreement (e.g., TAA, MLA), Customer shall provide prompt notification to DSTI in the event of changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR, and the initiation or existence of a U.S. Government investigation, that could affect the Customer’s performance under the Agreement. (f) Customer shall be responsible for all losses, costs, claims, causes of action, damages, liabilities and expense, including attorneys’ fees, all expense of litigation and/or settlement, and court costs, arising from any act or omission of Customer, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under this Section 17.

19. ANTI-CORRUPTION

Neither party has engaged or shall engage in any bribery; provision or receipt of payment, gift, or thing of value (other than the provision or receipt of reasonable gifts and entertainment provided in the ordinary course of business that do not violate this Section 19); kickbacks; collusive bidding; price fixing; or other unfair trade practices. Each party (and its partners, employees, representatives and agents) shall comply with the U.S. Foreign Corrupt Practices Act (“FCPA”) and the applicable anti-bribery and anti-corruption laws of any country outside the United States (“Corrupt Practice Laws”). If either party learns of or has reason to know of any payment, offer or agreement in connection with these Terms and Conditions that represents or could represent a violation of the FCPA or Corrupt Practices Laws, such party shall immediately advise the other party in writing.

20. APPLICABLE LAW

The Agreement shall be interpreted in accordance with the substantive laws of the State of Minnesota, without giving effect to conflict of laws principles. The parties agree that the exclusive venue for any claims or actions arising under or in relation to the Agreement shall be in Anoka County, Minnesota, or in United States District Court for the District of Minnesota. The parties hereto consent to the personal jurisdiction of such courts and waive any argument that such a forum is not convenient.