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Engage Technologies Corporation Terms and Conditions of SALE

1. Agreement. Any order placed by a Buyer, whether oral, written, or by facsimile shall be deemed to constitute an offer to enter into a contract to purchase Seller’s (Engage Technologies Corporation does business as Squid Ink Manufacturing, Eastey Enterprises, and Cogent Technologies, hereinafter referred to as "Engage") products ("Goods") on these Terms and Conditions of Sale (“T&C”) which are hereby incorporated into any such order. Buyer’s order shall be accepted by Engage Technologies and a contract entered into on these T&C, upon the transmittal of Engage Technologies Order Acknowledgment or upon the shipment of the Goods, whichever occurs first. Engage Technologies OBJECTS TO, AND IS NOT BOUND BY, TERMS OR CONDITIONS ON BUYER'S PURCHASE ORDER, CONFIRMATION FORMS, OR OTHER DOCUMENTS, WHICH ATTEMPT TO IMPOSE UPON Engage Technologies ANY TERMS OR CONDITIONS AT VARIANCE WITH OR IN ADDITION TO THESE T&C. SHIPMENT OR OTHER PERFORMANCE BY Engage Technologies SHALL NOT CONSTITUTE ASSENT TO ANY SUCH INCONSISTENT OR ADDITIONAL TERMS OR CONDITIONS. BUYER'S PAYMENT OR ACCEPTANCE OF THE GOODS SHALL CONSTITUTE ASSENT TO THESE T&C.

2. Orders. All customer orders are subject to acceptance by Engage Technologies, in its sole discretion, at its general offices, even if such orders are taken elsewhere by an authorized sales representative of Engage Technologies.

3. Inspection. Buyer must inspect the Goods within ten (10) days of delivery to Buyer’s facility or the Goods shall be irrevocably accepted according to these T&C. Buyer agrees that ten (10) days is a reasonable amount of time for inspection of the Goods.

4. Payment Terms.
(A) Domestic Sales. Pending credit approval, payment terms for domestic sales are net thirty (30) days after the date of Engage Technologies invoice. If Buyer fails to fulfill the terms of payment or if Engage Technologies shall have any doubt as to Buyer’s financial condition, Engage Technologies may, in addition to any other of Engage Technologies rights on Buyer’s default, decline to make further deliveries until receipt of cash or satisfactory security.  Special payment terms for large or custom equipment may require 50% down payment, with the balance due net thirty (30) days after the date of Engage Technologies invoice. When necessary, special payment terms will be clearly communicated with purchaser on the quotation provided by Engage Technologies.
(B) Export Sales. Payment terms for export sales are one hundred percent (100%) net cash in U.S. currency upon presentation of invoices, bills of lading, or other appropriate shipping documents. In addition, Buyer shall establish an irrevocable letter of credit in favor of Engage Technologies sufficient to cover the price of the Goods, bank charges, and all other related expenses which are for Buyer’s account. The letter of credit must be issued or confirmed by a U.S. bank located in Minnesota and must remain open for a sufficient period of time for Engage Technologies to complete the transaction.

5. Security Interest. Engage Technologies hereby reserves and Buyer grants a purchase money security interest in the Goods sold and the proceeds thereof, in the amount of the purchase price. If Buyer defaults on any of its obligations to Engage Technologies, Engage Technologies shall have the right, in addition to any other rights and remedies available, to repossess the Goods sold hereunder. In such event, Buyer agrees to make the Goods available for repossession. These security interests may be perfected by payment in full.

6. Price. Prices shown in Engage Technologies sales literature are subject to change without notice and should not be construed as a definite quotation or offer to sell. A signed and dated quote by an authorized representative of Engage Technologies is an offer to sell that shall expire not more than thirty (30) calendar days from the date it is transmitted to Buyer. Engage Technologies’ quote is expressly conditional on Buyer’s assent to these T&C. Engage Technologies reserves the right, upon notice to Buyer, to correct miscalculations, omissions, and typographical errors on any quote or offer.

7. Taxes. Prices quoted or accepted by Engage Technologies are exclusive of all federal, state, municipal, or other government excise, sales, use, occupational, or like taxes, tariffs, fees, export duties, and other export costs. All of the foregoing shall be for the account of Buyer. Consequently prices are subject to increase by the amount of any such tax, tariff, duty, or fee that Engage Technologies pays or is required to pay or collect upon sale or delivery of the Goods. Any such taxes, tariffs, duties, fees, and costs, when applicable to sales or to the Goods, shall appear as separate items on Buyer’s invoice.

8. Shipping. Unless otherwise agreed in writing all deliveries are shipped F.O.B. Engage Technologies factory and Buyer assumes the risk of loss, delay, and damage immediately upon delivery of the Goods to a suitable common carrier. All delivery expenses including transportation, freight, insurance, and any other shipping cost shall be for the account of Buyer. Notwithstanding, the Parties agree to cooperate to recover from the common carrier for any loss or damage resulting from the transportation of the Goods by the carrier. Unless otherwise indicated in writing selection of a carrier shall be at Engage Technologies discretion. Charges for special packaging shall apply on Buyer’s request or if the Goods are particularly susceptible to breakage.

9. Delays in Delivery and Force Majeure. Engage Technologies shall use commercially reasonable efforts to meet any delivery date(s) quoted. However, under no circumstance shall Engage Technologies be liable for any delay in shipment, failure to meet any quoted delivery date(s), or for any delay in performance hereunder. In addition, Engage Technologies shall have the right to postpone the time for delivery due to unforeseen circumstances or cause(s) beyond its control. Examples of such causes are acts of God, wars, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, strikes, transportation delays or shortages, inability to obtain material or supplies, excessive demand over available supply, interruption in the manufacture of products needed to produce Engage Technologies Goods, or other causes not within Engage Technologies control.

10. Installation and Repair Assistance. Unless otherwise agreed to under the warranty provisions of this Agreement, all Goods shall be installed and repaired by and at the expense of Buyer. If Buyer so desires, Engage Technologies shall furnish an experienced person to supervise and assist in the installation or repair of the Goods. Service personnel will be billed on an hourly basis according to Engage Technologies then current rates. Engage Technologies shall not be liable for the negligent, reckless, or intentional acts of anyone not employed by Engage Technologies who installs, repairs, operates, or handles the Goods under this Agreement.

11. Buyer Cancellation, Return, and Chargeback.
(A) Cancellations: Any request for order cancellation, rescheduling, or modification by Buyer must be made in writing and approved by an authorized agent of Engage Technologies. Such cancellation, rescheduling, or modification shall be subject to a 25% minimum restocking fee if cancelled after down payment is collected to cover expenses already incurred for labor and material, overhead, commitments made by Engage Technologies, a chargeback for unearned discounts, and a reasonable profit. Buyer shall have no rights in partially completed Goods.
(B) Returns: Any request for a return by Buyer must be made in writing. A return of Goods shall not be accepted for any reason without the prior written consent of Engage Technologies and issuance of a Return Material Authorization (RMA) number. If Engage Technologies grants such authorization, and the Goods are not covered by the limited warranty provided herein, Buyer shall pay Engage Technologies a restocking fee equal to twenty five percent (25%) of the then current list price of the Goods. The Buyer shall also pay adjustments for unearned discounts and other reasonable charges for handling. The RMA paperwork shall specify additional terms and conditions for returns. Buyer shall not return material without first obtaining an RMA number. Returns made without obtaining prior authorization shall be returned to sender at Buyer’s expense. Except as provided for in Engage Technologies limited warranty to Buyer, Engage Technologies, in its sole discretion, may accept or reject any request by Buyer to return Goods for cash or credit.
(C) Return of Custom Equipment: Engage Technologies will not accept any custom or modified equipment for return.
(D) Chargeback: Prices indicated to the Buyer are based upon the quantity ordered. If, through no fault of Engage Technologies, the total quantity ordered is not purchased during the scheduled delivery period, in addition to any other rights available to Engage Technologies (including enforcement of the original agreement to purchase), Engage Technologies may “chargeback” Buyer. The chargeback shall equal an amount not less than the difference between the list price of the Goods on the date of Engage Technologies Invoice(s) and the amount Buyer actually paid for such Goods.

12. No License. Goods offered for sale by Engage Technologies are subject to the condition that such sale shall not convey any right to reproduce, copy, or duplicate the Goods in whole or in part either, expressly or by implication, under any intellectual property rights, with respect to any inventions of Engage Technologies or others, patented or not patented, embodied in Engage Technologies Goods, processes, sales literature, or manufacturing operations. Unless expressly stated otherwise in a signed writing, Engage Technologies reserves all its rights in such intellectual property and no manufacture to Buyer’s specifications entails ownership by or conveyance to Buyer of any property right.

13. Intellectual Property Rights Infringement. Engage Technologies agrees to indemnify and defend Buyer against any claim that the Goods purchased hereunder, as manufactured by Engage Technologies, infringe on a United States Patent, United States Copyright, United States Trademark, or other United States intellectual property right, provided Engage Technologies is promptly advised of any such claim or action and has sole control of the defense of any such action and all negotiations for its settlement or compromise. However, Engage Technologies will not indemnify or defend Buyer from claims that Goods designed specifically to Buyer’s specifications infringe on any intellectual property right.

14. Warranty. Engage Technologies exclusive warranty is set forth separately at WWW.SQUIDINK.COM, WWW.EASTEY.COM, or WWW.COGENT-TECH.COM and it is hereby incorporated by reference into this Agreement as if fully set out within.

15. Limitation of Liability. THE WARRANTIES ABOVE ARE IN LIEU OF ALL OTHER WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITTNESS FOR A PARTICULAR PURPOSE. ENGAGE TECHNOLOGIES LIABILITY UNDER, FOR BREACH OF, OR ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED IN AMOUNT TO THE NET PURCHASE PRICE OF THE GOODS SOLD. IN NO EVENT SHALL ENGAGE TECHNOLOGIES BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE GOODS OR LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, ECONOMIC, DIRECT, INDIRECT, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF PROFIT) WHETHER OR NOT ENGAGE TECHNOLOGIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY WHICH MAY ARISE OUT OF ANY THIRD PARTY CLAIMS AGAINST BUYER.

16. Limitation on Actions. Buyer may not commence litigation or any other legal action against Engage Technologies for breach of warranty or breach of this Agreement unless the suit or action is brought within one (1) year of the date of Engage Technologies invoice.

17. Confidential Information. Buyer shall not, without Engage Technologies express written consent, disclose drawings, data, designs, plans, specifications, know how, production methods, or other confidential information belonging to Engage Technologies to any person not directly involved with the completion of this Agreement or operation of the Goods. Confidential information does not include information that is public, the receiving party lawfully knew prior to this Agreement, or that the receiving party could otherwise independently discover without the aid of the disclosing party.

18. Software License. If computer software is in or among the Goods to be transferred hereunder, Engage Technologies hereby grants to Buyer, effective upon sale of the items covered by this order, a perpetual non-exclusive non-transferable license to use such software, provided that such use shall be only for Buyer’s business and shall be limited to use on the Goods transferred hereunder.

19. Export Regulations. Buyer shall adhere to all provisions of the U.S. Government Export Administration Regulations, related documentation requirements, and internal control procedures. Buyer shall be responsible for obtaining any and all necessary export or import licenses and permits.

20. Notice. Any notice, demand, or other communication given or made under or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered by reputable overnight courier service or pre-paid first class mail to the other party's address.

21. Waiver. No failure or delay by Engage Technologies in exercising any right, power, or privilege hereunder shall operate as a waiver thereof.

22. Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the Parties, their successors, and assigns.

23. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but if any provision of this Agreement is held to be invalid, illegal, or unenforceable under any applicable law or rule, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.

24. No Assignment. This Agreement all rights, duties, and obligations thereto shall not be assigned, delegated, or transferred by either party without prior written consent of the other party, which it may withhold or grant in its sole discretion. Any attempted assignment or transfer in violation of this section is void and unenforceable.

25. Governing Law. This Contract shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to the conflicts of law principles of such State, except that the United Nations Convention on Contracts for the International Sale of Goods, if otherwise applicable pursuant to such laws, shall be excluded in favor of the Uniform Commercial Code as in effect at the time in the State of Minnesota.

26. Entire Agreement. In order of precedence (1) special terms and conditions agreed to in a writing signed by both Parties (2) Engage Technologies Order Acknowledgement (3) these T&C (4) specifications and (5) all other exhibits or warranties incorporated by reference constitute the complete Agreement between the Parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. No other act, document, usage, or custom shall be deemed to amend or modify this Agreement.


Engage Technologies Corporation Terms and Conditions of PURCHASE

1. Definitions. “Goods” means the goods or services described in Engage Technologies Purchase Order. “Buyer” means Engage Technologies Manufacturing, Inc. “Seller” means the supplier furnishing the Goods or services described in Engage Technologies Purchase Order. “Order” means Engage Technologies Purchase Order, these Terms and Conditions of Purchase and any product specification exhibits.

2. Agreement. Engage Technologies Order, whether oral, written, or by facsimile is an offer that is expressly conditional on Seller’s assent to these Terms and Conditions of Purchase. Engage Technologies offer shall be accepted by Seller and a contract on these terms and conditions entered into upon the transmittal of Seller's Order Acknowledgment or upon the shipment of the Goods, whichever occurs first. ENGAGE TECHNOLOGIES OBJECTS TO AND IS NOT BOUND BY ANY TERMS OR CONDITIONS ON SELLER'S ORDER ACKNOWLEDGEMENT, CONFIRMATION FORMS, OR ANY OTHER DOCUMENTS WHICH ATTEMPT TO IMPOSE UPON ENGAGE TECHNOLOGIES ANY TERMS OR CONDITIONS AT VARIANCE WITH THE TERMS AND CONDITIONS SET FORTH HEREIN. PAYMENT OR OTHER PERFORMANCE BY ENGAGE TECHNOLOGIES SHALL NOT CONSTITUTE ASSENT TO INCONSISTENT TERMS.

3. Changes. Engage Technologies may, by a written change order, suspend performance in whole or in part, make changes in drawings, designs, specifications, method of shipment, packing, time or place of delivery, require additional work, or direct the omission of work. If any such change order causes an increase or decrease in the cost of, or the time required for the performance of an Order, an equitable adjustment shall be made in the contract price or delivery date and the Order shall be modified accordingly. Any claim for adjustment under the Order shall be deemed waived if not communicated in writing to Engage Technologies within (30) thirty days of the date the change order was received by Seller.

4. Packaging. All shipments to Engage Technologies shall be in standard commercial containers capable of safe delivery to Engage Technologies. No charge shall be made for packaging unless specifically agreed to in writing. All packaging shall bear marking and labels required by applicable federal, state, and municipal laws and regulations.

5. Shipping. Unless otherwise agreed to in writing all Goods shall be shipped F.O.B. Engage Technologies factory, freight prepaid at the lowest lawful transportation and insurance rates. The risk of loss, delay, and damage shall be borne by the Seller until the Goods are accepted by Engage Technologies at Engage Technologies primary facility. The Parties shall to cooperate to recover from the common carrier for any loss or damage arising out of the transportation of the Goods by the carrier. If the Goods originate outside the United States, Seller shall be the importer of record, with responsibility for obtaining clearance of the Goods through U.S. Customs and payment of any import or export duties and fees.

6. Delivery. Time is of the essence. Over-shipments and shipments arriving substantially earlier than scheduled shall be returned or retained at Seller’s expense and risk. If delivery is not completed by the time promised, Engage Technologies reserves the right, without liability and in addition to any other rights and remedies, to terminate the Order by notice effective when received by Seller.

7. Delays in Delivery and Force Majeure. Seller shall use its best efforts to meet any delivery date(s) quoted in the Order. However, neither party shall be liable to the other for failure to fulfill any promises, representations, or warranties pertaining to delivery dates when such failure is due to unforeseen circumstances or cause(s) beyond its control. Examples of such causes are acts of God, wars, riots, embargoes, acts of military authorities, fires, floods, accidents, strikes, transportation delays, or shortages.

8. Inspection/Rejection. Payment of Seller’s invoice shall not constitute acceptance of the Goods. All Goods shall remain subject to inspection and test by Engage Technologies for a reasonable period of time. If Engage Technologies determines that a shipment is nonconforming Engage Technologies shall have the right to either (1) accept the Goods and adjust payment to compensate for the nonconformity (2) reject the shipment in full or in part and return the rejected Goods at Seller’s expense (3) demand specific performance or (4) procure substitute Goods at Seller’s expense. Seller bears the risk of loss for Goods rejected by Engage Technologies. Engage Technologies failure to inspect shall not relieve Seller of any express or implied warranty obligations.

9. Termination.
(A) Without Cause. Engage Technologies may terminate its Order in whole or in part at any time without cause upon notice to Seller. If Engage Technologies terminates without cause it will reimburse Seller for the reasonable and necessary direct expenses incurred in connection with the Order and prior to termination. However in no event will Engage Technologies be liable for any loss of profits or other indirect, special, incidental, or consequential damages.
(B) With Cause. Engage Technologies may, in addition to any other right or remedy under the law, terminate an Order for cause without incurring liability of any kind to Seller. Cause means, without limitation, Seller’s (1) material failure to comply with the terms of the Order (2) bankruptcy or other similar proceeding (3) assignment or attempted assignment of the Order or (4) failure to give adequate assurances of performance.

10. Price. Engage Technologies will not accept price increases without its express written consent.

11. Taxes. The prices on Engage Technologies Order shall include all taxes, duties, fees, and charges except state sales taxes and other taxes imposed on Engage Technologies by law. Seller shall list the amount of state sales tax(s) and any other tax(s) imposed on Engage Technologies by law as separate items on Seller’s Invoice.

12. Payment Terms. After each shipment Seller shall send an invoice to Engage Technologies accounting department listing the agreed upon price, quantity, Engage Technologies Purchase Order number, a description of the Goods (including serial numbers if applicable), and the date of expected delivery.

13. Seller Represents and Warrants:
(A) Compliance. That the Goods furnished hereunder are designed, manufactured, and sold in compliance with applicable Federal, State, and municipal laws, rules, and regulations.
(B) Title. That the Goods furnished hereunder have good title and are free of any liens or encumbrances.
(C) Specifications. That the Goods furnished hereunder (1) are free from defects in design (except to the extent such defective design is attributable to Engage Technologies), material, and workmanship (2) are merchantable and fit for their particular purpose(s) and (3) conform to applicable specifications, drawings, samples, or other descriptions. Such warranties shall survive delivery, shall not be deemed waived either by reason of Engage Technologies acceptance of or payment for the goods, and shall remain in force for a period of time consistent with the normal warranty of Seller.
(D)Seller warrants that the prices on Engage Technologies Order are not higher than the prices Seller charges other companies ordering similar quantities of the same Goods.

14. Intellectual Property Rights Infringement. Seller agrees to indemnify, defend, and hold harmless Engage Technologies, its directors, officers, employees, and agents against all liability, losses, claims, damages, and expenses arising out of any actual or alleged claim that Goods or services purchased under this Agreement infringe on any intellectual property rights.

15. Confidential Information. Seller shall not, without Engage Technologies express written consent, disclose drawings, data, designs, plans, specifications, know how, production methods, or other confidential information belonging to Engage Technologies to anyone not directly involved with the completion of the Order. Confidential information does not include information that is public, the Seller lawfully knew prior to this agreement, or that the Seller could independently discover without the aid of Engage Technologies confidential information.

16. Notices. Any notice, demand, or other communication given or made under or in connection with the matters contemplated by this Agreement shall be in writing and shall be delivered personally, by reputable overnight courier service, or by pre-paid first class mail to the other party's address.

17. Waiver. No failure or delay by Engage Technologies in exercising any right, power, or privilege shall operate as a waiver thereof.

18. Successors and Assigns. This Agreement shall inure to the benefit of and be binding on the parties, their successors, and assigns.

19. Severability. Whenever possible, each provision of this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law but if any provision of this Agreement is held to be invalid, illegal, or unenforceable under any applicable law or rule, the validity, legality, and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby.

20. No Assignment. This Agreement and all rights, duties, and obligations thereto shall not be assigned, delegated, or transferred by either party without prior written consent of the other party, which it may withhold or grant in its sole discretion. Any attempted assignment or transfer in violation of this paragraph is void and unenforceable.

21. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Minnesota, without regard to the conflicts of law principles of such State, except that the United Nations Convention on Contracts for the International Sale of Goods, if otherwise applicable pursuant to such laws, shall be excluded in favor of the Uniform Commercial Code as in effect at the time in the State of Minnesota.

22. Limitation on Actions. Seller may not commence litigation or any other legal action against Engage Technologies for breach of this Agreement unless the suit or action is brought within one (1) year of the date the Goods arrived at Engage Technologies.

23. Entire Agreement. In order of precedence (1) special terms and conditions agreed to in a writing signed by both Parties (2) Engage Technologies Purchase Order (3) these T&C (4) specifications and (5) all other exhibits or warranties incorporated by reference constitute the complete Agreement between the Parties and supersede all prior or contemporaneous agreements or representations, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each party. No other act, document, usage, or custom shall be deemed to amend or modify this Agreement.