PURCHASE ORDER TERMS AND CONDITIONS

ACCEPTANCE: This Order is Buyer’s offer to purchase the goods and services (the “Products”) described in this Order. Acceptance of this offer is limited to the terms contained herein and in any documents or specifications expressly incorporated by reference. This Order shall be accepted by Seller in writing, or by any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter of this Order (i.e. commencement of any work or service), being the Effective Date.

SHIPPING, BILLING AND FLSA CERTIFICATION: Seller agrees: (a) to properly pack, mark and ship goods in accordance with the reasonable requirements of Buyer and involved carriers; (b) to make no charge for standard packaging unless otherwise stated in this Order; and (c) to otherwise handle each shipment in accordance with Buyer’s instructions.  Seller further agrees:  (a) to promptly render, after delivery of goods or performance of services, correct and complete invoices to Buyer; and (b) to accept payment by check or, at Buyer’s discretion, other cash equivalent (including electronic transfer of funds).  The payment terms are set forth on the face side of this Order.

DELIVERY SCHEDULES: Deliveries shall be made both in quantities and at times agreed upon by Seller and Buyer.

PRICES: The prices shown in this Order shall be firm unless Buyer has expressly agreed to adjust the prices shown during the performance of this Order. The prices shown include all charges by Seller for normal packing and transportation to the point of delivery.

CHANGES: By giving written notice to Seller, Buyer may modify at any reasonable time, the methods and destination of shipment and packaging Products. Seller agrees to promptly make such changes. If such modification affects the cost of, or the time required for, the performance of any part of the work under this Order, then Buyer shall make an equitable adjustment to the terms of this Order within a reasonable time.  Only modifications for which Buyer submits written notice to Seller shall become part of the Order.

INSPECTION/REJECTION/PRODUCT RETURNS: Payment, retention, repackaging or other use of the Products shall not be deemed acceptance by Buyer of the Products or a waiver by Buyer of any breach by Seller. Buyer has the right to inspect the Products on or after the arrival or delivery date to verify that the Products comply with the Order and with the specifications and these Terms and Conditions.

COMPLIANCE WITH LAWS. Seller warrants and covenants that all Products are manufactured, tested, processed, packaged, labeled, tagged, certified, accurately marked, weighed, inspected, shipped and sold in compliance with all applicable industry standards and all applicable federal, state, provincial and local laws, treaties and regulations. Seller agrees to execute and furnish to Buyer upon request, for each Product, all certifications, guaranties and other documents regarding and verifying compliance with such laws and regulations, including any Safety Data Sheet (“SDS”) as required by OSHA regulations, or a statement from Seller and the manufacturer that no SDS is legally required for such Products. Seller must give prompt written notice to Buyer of any action by a governmental agency, person or other entity concerning or affecting any Products purchased under these Terms and Conditions and of any facts Seller learns indicating that Products are not in compliance with any laws, regulations or standards. Seller shall promptly provide to Buyer a written description of the nature of such noncompliance and the procedures adapted by Seller to remedy such noncompliance. Seller warrants that the Products are not prohibited under any applicable laws, statutes, rules or regulations from being introduced into interstate commerce. Buyer reserves the right to cancel any Order if it reasonably believes that the Products to be delivered do not comply with the requirements of this Section.

WARRANTY: Seller warrants that the Products (i) are merchantable; (ii) are free from material defects, including but not limited to defects in workmanship, materials, packaging, and construction; (iii) are free from defects in design; (iv) are fit and sufficient for the purpose for which the Products are intended, and (v) conform to the specifications provided in writing from time to time by Buyer. Seller further warrants that no Product contains any foam or other substances banned under regulations adopted by EPA or under any other United States laws or regulations, that the Products do not contain or are not manufactured with the use of any Class I or Class II Ozone-Depleting Chemicals or if so, are properly labeled in full compliance with EPA regulations and other applicable laws and regulations.

INTELLECTUAL PROPERTY. Any Buyer mark, logo, label, formula, specifications and any artwork, engravings, color separations, and similar materials (collectively, the “Buyer IP”) is and shall remain the property of Buyer or its licensors. Notwithstanding anything contained herein to the contrary, Seller shall have no rights or interest in the Buyer IP. All goodwill associated with the Buyer IP will inure to the benefit of Buyer or its licensors. Seller agrees that Seller will obtain prior written consent and comply with Buyer’s written instructions in connection with Seller’s use of any Buyer IP. During and after the term hereof, Seller shall not contest, directly or indirectly, the ownership, validity, or enforceability of such Buyer IP or use or register any confusingly similar intellectual property. Seller shall not use or reproduce the Buyer IP for its benefit or the benefit of any third-party. Under no circumstances shall Seller sell or dispose of any Products using the Buyer IP to anyone other than Buyer. Under no circumstances shall Seller use any Buyer IP or any Confidential Information of Buyer in its own products or in any products that Seller may develop or manufacture for any third-party. Any unused packaging and any rejected, returned or recalled Product shall be destroyed by Seller. All Buyer IP shall be returned to Buyer unless otherwise agreed to in writing by Buyer. Seller shall remain the exclusive owner of all specifications, recipes, formulas, processes, methods, intellectual property or Confidential Information of Seller owned prior to the Effective Date, or that is acquired or developed by Seller without any use of any Buyer IP.

INDEMNITY. Seller shall defend, hold harmless and indemnify Buyer, its affiliates agents, representatives and customers (collectively the “Buyer Indemnitees”) from and against any and all claims, actions, suits, liabilities, losses, fines, penalties, costs and expenses (including without limitation, reasonable attorney fees, expert witness fees and court costs) arising out of any of the following: (a) any actual or alleged infringement or misappropriation by the Products or by Seller of (i) any patent of any third-party, (ii) any Buyer IP, or (iii) any trademark, trade name, trade dress or copyright of any third-party; (b) any actual or alleged injury to any person or damage to property claimed to result, in whole or in part, from the Products or from any defect in such Products, whether latent or patent, including any alleged failure to provide adequate warnings, labeling or instructions; (c) any actual or alleged violation of any law, statute, ordinance, judicial or administrative order, rule or regulation relating to the Products, or their manufacture, shipment, import, labeling, weights and measurements, use or sale, or any failure to provide an SDS or certification; (d) any act, activity or omission of Seller or any of its affiliates, employees, representatives, agents or contractors; (e) the breach of any of the Seller’s warranties contained in these Terms and Conditions or in any Order; (f) the negligent or intentional misconduct of Seller; or (g) the refusal of Seller to comply with the indemnity or defense obligations imposed by this Section. Notwithstanding the foregoing, Seller’s obligation to indemnify and hold harmless the Buyer Indemnitees shall apply only to claims, suits or actions brought by a third party against a Buyer Indemnitee.

INSURANCE REQUIREMENTS. Promptly upon request by Buyer, Seller shall provide to Buyer a Certificate of Insurance and any underlying insurance policy issued by its insurance company or agent giving evidence of Product Liability and Complete Operations insurance (including Broad Form Vendors Coverage) and Contractual Liability insurance for liabilities assumed under these Terms and Conditions, including indemnification of Buyer. The following minimum coverage (or current limits carried, whichever is greater) is required, with insurers acceptable to Buyer. Primary Insurance for Product Liability (including Broad Form Vendors), Bodily Injury and Property Damage Combined, $2,000,000/occurrence/$4,000,000 aggregate. Notwithstanding anything herein to the contrary, in no event shall Seller’s liability be limited to the minimum required insurance coverage. If any aspect of the required insurance is written on a “claims made” form, Seller agrees to maintain such insurance for a period of three years immediately following any severance of the supplying relationship between Seller and Buyer. Seller shall, or shall cause its insurers or insurance agent/broker, to provide thirty (30) days advance written notice of any policy cancellation, non-renewal, or material reduction of coverage.

TAXES. Purchases of Products hereunder are for resale. Under no circumstances shall Buyer be responsible for payment of taxes imposed and based, wholly or partially, upon Seller’s revenues or profits.

CANCELLATION FOR BREACH: Buyer may terminate the performance of work under this Order (or any part thereof) for cause upon written notice of termination to Seller if Seller fails to cure any material failure to perform, discharge or fulfill its obligations under this Order within ten (10) days after receipt of a detailed written notice from Buyer of the default under this Order.

TERMINATION: In addition to any other rights of Buyer to cancel or terminate this Order, Buyer may at its option immediately terminate all or any part of this Order, at any time and for any reason, by giving written notice to Seller. Upon such termination, Buyer shall pay to Seller the following amounts without duplication:  (a) the Order price for all Products which have been completed in accordance with this Order and not previously paid for; and (b) the actual costs of work-in-process and raw materials incurred by Seller in furnishing the Products under this Order to the extent such costs are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles, to the terminated portion of this Order.  Within sixty (60) days from the effective date of termination, Seller shall submit a comprehensive termination claim to Buyer, with sufficient supporting data to permit Buyer’s audit, and shall thereafter promptly furnish such supplemental and supporting information as Buyer shall reasonably request.

CHARGEBACKS AND ADJUSTMENTS: In addition to any other rights and remedies available to Buyer, Buyer reserves the right to deduct from any payment otherwise due Seller, or set-off against any claim of Seller, any amount due from Seller to Buyer.

REMEDIES: The exercise of any remedy herein shall be without prejudice to any other right or remedy available to either party. At no time shall Buyer be liable for any loss of profits or any indirect, special, incidental, punitive, exemplary or other consequential damages incurred by Seller. Other than in connection with its obligation to indemnify and hold Buyer Indemnitees harmless, at no time shall Seller be liable for any loss of profits or any indirect, special, incidental, punitive, exemplary or other consequential damages incurred by Buyer under these Terms and Conditions.

DISPUTES AND ARBITRATION. All claims and disputes (including without limitation any tort or statutory claim) that (1) are between Seller and Buyer, and (2) arise out of or relate to the subject matter, interpretation, performance or enforcement of these Terms and Conditions (“Dispute”) shall be finally resolved by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), in English, in the Detroit Metropolitan area, before one neutral arbitrator who shall be chosen pursuant to the AAA Commercial Arbitration Rules. All documents and information relevant to the Dispute in the possession of any party shall be made available to the other party no later than sixty (60) days after the demand for arbitration is served, and the arbitrator may permit such depositions or other discovery deemed necessary for a fair hearing. The arbitrator shall have the power to require discovery of third parties (including testimony and documents) to the fullest extent allowed by the laws of the State of Michigan. The hearing may not exceed five (5) days or such longer period of time as the arbitrator may determine. The arbitrator shall strive to render the award within one hundred and twenty (120) days of the demand. The arbitrator may award interim and final injunctive relief and other remedies, but may not award punitive, exemplary, treble, or other enhanced damages. Any award of the arbitrator (including awards of interim or final remedies) may be confirmed or enforced in any court having jurisdiction. Notwithstanding the above, Buyer or Seller may bring court proceedings or claims against each other (i) solely as part of separate litigation commenced by an unrelated third party, or (ii) if not first sought from the arbitrator, solely to obtain in the state or federal courts in Detroit, Michigan, temporary or preliminary injunctive relief or other interim remedies pending conclusion of the arbitration; for that purpose, Buyer and Seller hereby consent to the exclusive jurisdiction of the state and federal courts of Detroit, Michigan and each of Buyer and Seller waives any right it may have to remove, transfer or change the venue of any action brought in accordance with this Section. In the case of contradiction between the provisions of this Section and the Commercial Arbitration Rules of AAA, this Section shall prevail. The limitations on remedies described above may be deemed inoperative to the extent necessary to preserve the enforceability of this agreement to arbitrate. If any provision of this agreement to arbitrate is held invalid or unenforceable, it shall be so held to the minimum extent required by law and all other provisions shall remain valid and enforceable.

GOVERNING LAW. These Terms and Conditions shall be governed by and construed according to the laws of the State of Michigan, without regard to their conflicts of laws principles. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.

SEVERABILITY. If any provision of these Terms and Conditions is held invalid or unenforceable, it shall be so held to the minimum extent required by law and all other provisions shall remain valid and enforceable.

CONFIDENTIALITY. Each party may be exposed to confidential or proprietary information of the other party. “Confidential Information” means any data or information that is proprietary to a party (each, a “Disclosing Party”) and not generally known to the public, whether in tangible or intangible form, whenever and however disclosed, including, but not limited to: (i) any marketing strategies, plans, financial information or projections, pricing information, operations, sales estimates, business plans and performance results relating to the past, present or future business activities of such Disclosing Party; (ii) plans for products or services, and customer or supplier lists; (iii) any scientific or technical information, invention, design, process, procedure, formula, improvement, technology or method; (iv) any concepts, reports, data, know-how, works-in-progress, designs, development tools, specifications, computer software, source code, object code, flow charts, databases, inventions, information and trade secrets; and (v) any other information that should reasonably be recognized as confidential information of the Disclosing Party. Each party shall however be permitted to disclose relevant aspects of such Confidential Information to its officers, employees, attorneys, auditors by a public accounting firm, or a federal or state government agency, on a need-to-know basis in order to perform its obligations, provided that such person or entity has undertaken to protect the Confidential Information to the same extent as required under these Terms and Conditions. A party receiving Confidential Information (a “Receiving Party”) shall give the Disclosing Party notice immediately upon learning of any unauthorized use or disclosure of Confidential Information of the Disclosing Party. In the event a Receiving Party is served with any subpoena or other legal process requiring or purporting to require the disclosure of any Confidential Information, the Receiving Party shall promptly notify the Disclosing Party in writing and shall cooperate fully with the Disclosing Party and its legal counsel in challenging, opposing, seeking to limit or appealing any such legal process to the extent deemed appropriate by the Disclosing Party. Notwithstanding anything in the foregoing to the contrary, Confidential Information shall not include information which the Receiving Party can demonstrate: (i) was known by the Receiving Party prior to receiving the Confidential Information from the Disclosing Party; (b) becomes rightfully known to the Receiving Party from a third-party source not known (after diligent inquiry) by the Receiving Party to be under an obligation to Disclosing Party to maintain confidentiality; (c) is or becomes publicly available through no fault of or failure to act by the Receiving Party in breach of this Section; (d) is required to be disclosed in a judicial or administrative proceeding, or is otherwise requested or required to be disclosed by law or regulation, although the requirements of this Section shall apply prior to any disclosure being made; and (e) is or has been independently developed by employees, consultants or agents of the Receiving Party without violation of the terms of this Section or reference or access to any Confidential Information of the Disclosing Party. The Receiving Party agrees to use the Confidential Information solely in connection with the performance of its obligations and not for any purpose without the prior written consent of an authorized representative of the Disclosing Party. No right or license, whether expressed or implied, in the Confidential Information is granted to the Receiving Party hereunder. Title to the Confidential Information will remain solely in the Disclosing Party. All use of Confidential Information by the Receiving Party shall be for the benefit of the Disclosing Party and any modifications and improvements thereof by the Receiving Party shall be the sole property of the Disclosing Party. Notwithstanding the foregoing, Seller understands that Buyer is familiar with the type of business covered by the Confidential Information and may currently or in the future be developing products internally, or receiving information or technology from third parties, in each case that may be similar to the Confidential Information disclosed by Seller. Accordingly, nothing herein will be construed as a representation, agreement or inference that will restrict or limit Buyer in regard to its continued operation of its existing businesses nor Buyer’s independent development, sale, licensing and marketing of products competitive with those embodying the Confidential Information disclosed by Seller, so long as Buyer does not use Seller’s Confidential Information to do so.

INDEPENDENT CONTRACTOR. Seller shall be deemed an independent contractor and Seller agrees that Seller has not and shall not hold itself out as, nor shall Seller be deemed to be, an agent of Buyer.

CHANGE OF CONTROL/ASSIGNMENTS. Seller will neither assign any Order nor delegate or subcontract the furnishing of any Products, without the prior written approval of Buyer; provided that Seller may assign any Order (i) to an affiliate; or (ii) in connection with a merger, a sale of the company or all (or substantially all) of its assets, or similar reorganization to the acquirer of such assets. No permitted assignment or subcontracting will relieve the original Seller of its obligations hereunder or of any liability the original Seller may have as a result of any failure by the original Seller or its assignee to perform any of the terms hereof. Any assignment by Seller without Buyer’s prior written consent is void. Any assignment by Seller of its right of payment related to any Order shall be subject to all claims and defenses of Buyer. These Terms and Conditions will be binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns. In the event of a change in control in the management or ownership of Seller, Buyer shall have the option, but not the obligation, to cancel any Order that, in whole or in part, has not been fully delivered.

NOTICES. Unless otherwise specifically agreed to by the parties, all notices, claims, waivers and other communications shall be in writing and addressed to the parties and at the addresses provided by the parties from time to time. All notices shall be delivered by certified overnight mail or by a recognized courier company such as FedEx, with return receipt requested. A notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.

SURVIVAL. Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in full force after the end of the business relationship of the parties including, but not limited to, the following provisions: Warranty, Intellectual Property, Confidentiality, Indemnity and Survival.

TERMS AND CONDITIONS OF SALE. Seller acknowledges that these Terms and Conditions of Sale apply to any Orders placed by Buyer and to all related transactions and comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms and Conditions prevail over any of Seller’s general terms and conditions of sale regardless whether or when Seller has submitted its sales confirmation or such terms. Any additional or different terms proposed by Seller (including, without limitation, any terms contained in any document incorporated by reference into an Order) are objected to and rejected and will be deemed a material alteration hereof, unless expressly agreed to in writing by Buyer. Furthermore, Buyer will not be bound by any terms or conditions now or hereafter contained in any website or other electronic platform accessed by Buyer in connection with the Products or the Order.

NO WAIVER. No waiver by Buyer of any of the provisions in these Terms and Conditions is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms and Conditions 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.

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