1.               Applicability.  These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by LR Dynamics, Inc. and its affiliated companies (“Seller”) to the buyer named on the accompanying Sales Confirmation (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms. The accompanying order acknowledgment, sales order, invoice or other similar document provided by Seller issued by Seller (collectively, the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between Buyer and Seller, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, whether written or oral. These Terms prevail over any of Buyer’s terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Buyer’s acceptance of or payment for the Goods shall conclusively confirm assent to these Terms.

2.               Delivery.  Unless otherwise provided in the Sales Confirmation: (i) Seller shall deliver the goods EX WORKS (Incoterms 2010); (ii) Seller will ship by the method it deems appropriate; (iii) risk of loss will pass to Buyer upon tender of the Goods to the carrier at the shipping point, and Seller shall not be liable for any delays, loss or damage in transit, in each case, regardless of whether or not Seller arranged for shipping on behalf of Buyer; (iii) title will pass to Buyer upon the later of delivery or payment in full for the Goods. Delivery dates are estimates only, and Seller shall use reasonable efforts to deliver the Goods within a reasonable time after the delivery date set forth on the Sales Confirmation, subject to availability of finished Goods and supply chain disruptions. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the quantity shipped whether such shipment is in whole or partial fulfillment of Buyer’s order.

3.               Collateral.  As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to the Goods and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing, wherever located. The security interest granted under this provision constitutes a purchase money security interest under the Utah Uniform Commercial Code.

4.               Amendment.  These Terms may only be amended or modified as expressly set forth in writing which specifically states that it amends these Terms and is signed by an authorized representative of Buyer and Seller. Buyer cannot cancel any order subject to a Sales Confirmation, or increase or decrease the quantity of Goods reflected or accelerate or delay the timing of delivery of Goods reflected in any Sales Confirmation, in each case, without the prior written consent of Seller, which may be given, conditioned (including on Buyer paying any costs or expenses of Seller incurred in connection with such modification) or withheld in Seller’s sole discretion. Buyer acknowledges that production of Goods (including the purchase of raw materials and component parts) begins following Seller’s Delivery of the Sales Confirmation and, accordingly, Seller may not be able to accommodate any such request and that Seller is under no obligation to do so.

5.               Inspection.  Buyer shall inspect the Goods within 10 days of delivery (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing specifying any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only Goods delivered that are different than identified in the Sales Confirmation. If Buyer timely notifies Seller of any Nonconforming Goods, Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility, and Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship the replaced Goods to Buyer at Buyer’s expense and risk of loss. Buyer acknowledges and agrees that the remedies set forth in this Section 5 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 5, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

6.               Prices.  Buyer shall purchase the Goods from Seller at the applicable prices expressly set forth in the Sales Confirmation or, if not set forth in the Sales Confirmation, as set forth in Seller’s published price list in effect as of the date of the Sales Confirmation (the “Prices”). Any Prices expressly set forth in the Sales Conformation shall remain in effect until the delivery date specified in that Sales Conformation or, if none is specified, for a period of 30 days following the date of Sales Confirmation. If any Prices set forth in a Sales Confirmation expire in accordance with the immediately preceding sentence, or if no applicable Prices are set forth in the Sales Confirmation and the Prices set forth on the published price list are increased before delivery of the Goods, then these Terms shall be construed as if the Prices reflected in Seller’s then-current price list (including any increase in Prices therein) were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased Prices. All Prices are EX WORKS (Incoterms 2010) and exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer, and Buyer shall be responsible for all such charges, costs and taxes.

7.               Payment Terms.  Buyer shall pay all invoiced amounts due to Seller when specified in the Sales Conformation or, if not specified in the Sales Confirmation, within 30 days from the date of Seller’s invoice. Buyer shall make all payments hereunder in U.S. dollars by check, ACH or wire transfer of immediately available funds in accordance with the instructions included in the Sales Confirmation or Seller’s invoice. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

8.               Limited Warranty.  

(a)              Seller warrants to Buyer that for the duration of the Warranty Period (as defined below), that such Goods have been manufactured and constructed to conform with Seller’s current procedures and published specifications. This warranty shall be available from the date the Goods are shipped until the following (the “Warranty Period”): (i) with respect to QR, CW, M and HD series winches, the Aut-O-Loc and Curtain Loc series, 5 years and (ii) with respect to key switches, remote control receivers and transmitters, 1 year.

(b)              EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(a), SELLER MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER MAKES NO, AND HEREBY DISCLAIMS ANY, REPRESENTATION OR WARRANTY AS TO NON-INFRINGEMENT WITH RESPECT TO PRODUCTS OR COMPONENTS MANUFACTURED BY A THIRD PARTY THAT ARE CONTAINED IN OR INCORPORATED INTO THE GOODS.          

(c)              Seller shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) if so requested by Seller, Buyer returns the Goods to Seller at Buyer’s sole cost and risk of loss and in accordance with Seller’s instructions; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective. The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods, including any instructions regarding the safe storage, use or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; or (iv) Buyer removes any labeling affixed to the Goods regarding the safe storage, use or maintenance of the Goods. Subject to this Section 8(c), with respect to any such Goods that Seller reasonably determines do not comply with the warranty set forth in Section 8(a) during the Warranty Period, Seller shall, in its sole discretion, either repair or replace such Goods (or the defective part).

(d)              THE REMEDIES SET FORTH IN SECTION 8(c) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).

9.               Limitation of Liability.  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR DAMAGES BASED ON ANY MULTIPLE, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER CLAIM OR THEORY OF LIABILITY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 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 TO SELLER FOR THE GOODS SOLD HEREUNDER PURSUANT TO THE APPLICABLE SALES CONFIRMATION.

10.             Indemnity. Buyer assumes full liability and responsibility for compliance with all information, instructions, manuals, warnings and precautions provided or published by Seller, and with all laws, statutes, ordinances and regulations of any governmental authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, marketing, sale, resale, use, installation, maintenance, disposal and other disposition of the Goods. Buyer further agrees to protect, defend and hold harmless Seller from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys’ fees), penalties, and judgments, and any death, personal injury or damage to any real or personal property, in each case,  arising out of or in connection with, or resulting directly or indirectly from the processing, transportation, delivery, unloading, discharge, storage, handling, marketing, sale, resale, use, misuse, installation, maintenance, failure, disposal and other disposition of any Goods after delivery (a) in a manner other than directed by Seller, or inconsistent with any information, instructions, manuals, warnings and precautions provided or published by Seller; (b) in violation of any applicable law, statute, ordinance or regulation of any governmental authority; or (c) other than as a direct result of Seller’s gross negligence or willful misconduct.

11.             Insurance. During the term of this Agreement and for a period of [one year] after delivery of the Goods, Buyer shall, at its own expense, maintain in full force and effect one or more policies of commercial general liability (including product liability) insurance with a limit of not less than $500,000 per occurrence. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing such insurance coverage and naming Seller as an additional insured. Buyer shall provide, and cause its insurers to provide, Seller with 30 days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer hereby waives, and shall cause its insurer, to waive all rights of subrogation against Seller’s insurers and Seller.

12.             Resale of Goods.  To the extent Buyer resells all or any portion of the Goods, Buyer shall provide to the end purchaser all information, instructions, manuals, warnings and precautions provided to Buyer by Seller. Buyer shall not remove, overwrite, obliterate or obscure any markings, labels or warnings affixed to the Goods. Buyer shall create and maintain clear records documenting any sale or resale of the Goods made by Buyer to third parties sufficient to trace the sale and resale of the Goods, and will make electronic copies of such records available to Seller upon request and cooperate with Seller in the event of any product recall, field campaign, field fix, field repair, retrofit, upgrade or other effort to trace the sale and resale of the Goods.

13.             Compliance with Law.  Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall not export or reexport the Goods, except in accordance with all applicable laws (including the Export Administration Regulations and the Internal Traffic in Arms Regulations) and subject to any required export license or other authorization. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.

14.             Termination.  In addition to any remedies that may be provided under these Terms, Seller may terminate any order placed by Buyer under this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with the Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

15.             Waiver.  No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

16.             Confidential Information.  All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, sources of replacement parts or components, pricing, discounts or rebates, disclosed or made available by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is and shall at all times remain confidential and proprietary information of Seller, and may be used by Buyer solely for the use of performing this Agreement, and may not be used by Buyer for any other purpose or benefit, or disclosed or copied by Buyer, unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain through no breach or violation hereof by Buyer or its affiliates or representatives; (b) known to Buyer without restriction at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Seller does not, by entering into or performing this Agreement or selling any Goods to Buyer, transfer, license, or assign to Buyer or any other person or entity any right, title, interest, or license to or in any of Seller’s intellectual property, including, without limitation, patents, trade secrets and trademarks, and all such rights, titles and interests are reserved by Seller. Unless otherwise agreed by the parties in writing, any and all developments and improvements to Goods made or implemented by Seller or Buyer shall be the sole and exclusive property of Seller, regardless of Buyer’s participation therein. Buyer shall not copy, modify, disassemble, decompile or reverse engineer any Goods for any purpose or benefit, including, but not limited to, any attempt to learn Seller’s confidential or proprietary information, trade secrets, design specifications or manufacturing methods, or to create, design, sell or license any product or system that is based on or is designed to compete with, supplement or replace all or any material part of any Goods.

17.             Force Majeure.  Seller shall not be liable or responsible to Buyer, and shall not be in breach or default under this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, to the extent such failure or delay is caused by or results directly or indirectly from facts, events or circumstances beyond Seller’s reasonable control (each, a “Force Majeure Event”), including, without limitation, the following: (a) acts of God; (b) floods, fires, earthquakes, explosions, pandemics, epidemics, outbreaks of infectious disease, quarantines or public health emergencies, including efforts to comply with public health orders or guidance; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate supply of utilities; (i) any shortage, delay or disruption of supply or transportation; and (j) the worsening of any of the foregoing. Seller shall use reasonable efforts to give notice of a Force Majeure Event to Buyer and resume performance of its obligations as soon as reasonably practicable after the resolution of the Force Majeure Event.

18.             Assignment.  Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation shall relieve Buyer of any of its obligations under this Agreement.

19.             Relationship of the Parties.  The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, teaming arrangement, 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.

20.             No Third-Party Beneficiaries.  This Agreement shall inure to the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

21.             Governing Law.  This Agreement and all matters arising hereunder or relating hereto is governed by and construed in accordance with the internal laws of the State of Utah, without giving effect to any choice or conflict of law provision or rule (whether of the State of Utah or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Utah. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION ARISING UNDER THE AGREEMENT.

22.             Submission to Jurisdiction.  Any litigation arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Utah, in each case located in Salt Lake County, Utah. Buyer irrevocably submits to the personal jurisdiction of such courts in any such suit, action or proceeding and waives any objection as to venue or forum therein.

23.             Notices.  All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) 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 (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.

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

25.             Survival.  This Agreement shall survive delivery of the Goods and remain in full force and effect.

Rev A December 2021