Terms & Conditions for Purchase of Goods

OLD WORLD INDUSTRIES, LLC
GENERAL TERMS AND CONDITIONS
FOR PURCHASE OF GOODS

1. Definitions. Capitalized terms in these Terms shall be defined and have the meanings as set forth herein.  For easy reference, some of the defined terms are set forth below:
   1. “Affiliate” means, in relations to any Party, any entity or person controlled by the Party, any entity or person that controls the Party, or any entity or person under common control with the Party.  For this purpose, “control” of any Party, entity or person means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Party, entity or person, whether through the ownership of voting securities, by contract, or otherwise.
      1. “Blanket Purchase Order” means a Purchase Order, schedule agreement or autofill arrangement that does not contain specific quantities or delivery dates but contains basic information on the Products that Buyer intends to purchase from Seller pursuant to Releases issued from time to time by Buyer.
      2. “Buyer” means Old World Industries, LLC, an Illinois limited liability company, or any Affiliate of Old World Industries, LLC referencing these Terms in its Purchase Order.
      3. “Buyer’s Customer” means any customer of Buyer and any other person to whom Buyer resells, leases or otherwise transfers Products or products incorporating Products, and “Buyer’s Customers” means all such persons collectively.
      4. “Delivery Date,” “Delivery Point” and “Delivery Term” have the meanings set forth in Section 8(a).
      5. “Hazardous Materials” means any material classified as a hazardous material, hazardous substance, or dangerous good under applicable Laws, including 49 C.F.R. Parts 171–180, or requiring hazard classification on the Product’s SDS.
      6. “Laws” means all applicable international, federal, state, provincial, local or other laws, statutes, directives, treaties, quotas, ordinances, and regulations.
      7. “Losses” means any and all claims, demands, liabilities, losses, damages, fines, penalties, costs and expenses of every nature, including costs of investigation, litigation expenses, court costs, and reasonable attorneys’ and experts’ fees, whether arising from a third-party claim or asserted directly by one Party against the other.
      8. “Marks” has the meaning set forth in Section 14(a).
      9. “Master Agreement” has the meaning set forth in Section 3(a).
      10. “Parties” means Buyer and Seller collectively. “Party” means either Buyer or Seller, individually.
      11. “Products” means the goods ordered by Buyer from Seller pursuant to a Purchase Order and, where applicable, includes all components, packaging and related packaging components.
      12. “Purchase Order” means a Transmission by Buyer to Seller containing a purchase order number, supplier code number, and such other information evidencing an offer to Seller by Buyer relating to the purchase of Products.
      13. “Recall Event” means any recall, market withdrawal, stop-sale, retrofit, rework, field corrective action, customer notification or similar action with respect to Products or products incorporating Products, whether voluntary or required by a governmental authority.
      14. “Release” means a Transmission specifying quantities of Products and desired shipping or delivery dates and referencing an applicable Blanket Purchase Order.
      15. “SDS” has the meaning set forth in Section 10(a).
      16. “Seller” means the entity indicated as supplier or vendor on the Purchase Order.
      17. “Specifications” means the specifications, drawings, designs, formulations, samples, performance requirements, quality requirements and other requirements for the Products set forth in or referenced by the Purchase Order or otherwise furnished or approved in writing by Buyer.
      18. “Terms” means these General Terms and Conditions for Purchase of Goods, in the version in effect on the date of the applicable Purchase Order as posted on Buyer’s supplier portal or website.
      19. “Transmission” means any transmission from one Party to the other Party electronically through a computer network, EDI, Buyer’s supplier portal, or otherwise, by mail of hard copy, or by such other means as may be agreed.
      20. “Warranty Period” has the meaning set forth in Section 12(b). 

 

2. Acceptance and Applicability. Any Purchase Order either referencing these Terms or including a copy of these Terms with the Purchase Order (either by regular or electronic mail) is an offer by Buyer for the purchase of the Products specified on the face of such Purchase Order. In the case of a Blanket Purchase Order, the offer by Buyer shall not be made until Buyer issues a Release under such Blanket Purchase Order. BUYER’S OFFER IS EXPRESSLY LIMITED TO, AND EXPRESSLY CONDITIONED UPON, SELLER’S ASSENT TO THESE TERMS, AND NO CONTRACT SHALL ARISE ON ANY OTHER TERMS. Seller shall confirm or reject each Purchase Order or Release within two (2) business days after receipt via Buyer’s EDI system, Buyer’s supplier portal or electronic mail. Seller shall be deemed to have accepted the Purchase Order or Release (including any Specifications or requirements contained therein) and these Terms upon the earliest of: (i) Seller’s acknowledgment in writing (including through Buyer’s supplier portal) of its intent to be bound by the Purchase Order or Release; (ii) Seller’s commencement of performance or delivery to Buyer, or to Buyer’s designated customer or carrier, of any of the Products ordered; or (iii) Seller’s failure to reject the Purchase Order or Release in writing within two (2) business days after receipt. Buyer may withdraw a Purchase Order or Release at any time and for any reason without liability before it is accepted by Seller. Any acknowledgment, confirmation or other response from Seller that states terms additional to, different from, or in conflict with these Terms is a counteroffer, is expressly rejected by Buyer, and is of no effect; any terms in any Seller quotation, proposal, invoice, shipping document or similar document, or in any Seller click-through, portal, standard or pre-printed terms, are likewise expressly rejected and void; and neither Buyer’s acceptance of Products, payment, nor any other act or omission of Buyer shall constitute assent to any such terms. If the Purchase Order and these Terms have been sent to Seller in response to a bid, proposal, quotation or other offer made by Seller, these Terms: (a) shall supersede and control all provisions in Seller’s offer; (b) shall be a rejection of Seller’s offer; and (c) shall constitute an offer by Buyer to Seller. Buyer may revise these Terms from time to time by posting a revised version; the version in effect on the date of a Purchase Order governs that Purchase Order and any Release issued under it, and no revision applies retroactively to a Purchase Order already accepted.

 

3. Master Agreement; Entire Agreement; Order of Precedence. 
   1. Master Agreement.  If Buyer (or the Affiliate issuing the Purchase Order) and Seller are parties to an executed master purchase agreement, supply agreement or similar written agreement covering the Products (a “Master Agreement”), the Master Agreement shall govern the Purchase Order, these Terms shall apply only to the extent the Master Agreement does not address a particular matter, and the Master Agreement shall control in the event of any conflict with these Terms.
   2. Entire Agreement.  Subject to Section 3(a), the Purchase Order, together with (i) these Terms; (ii) any documents incorporated herein by reference, including Buyer’s Supplier Quality Handbook and Supplier Code of Conduct; (iii) the Specifications; and (iv) any manufacturer or supplier warranties provided by Seller (to the extent they are not inconsistent with the Purchase Order and these Terms), constitutes the sole and entire agreement of the Parties with respect to the Purchase Order, or Release as the case may be, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to its subject matter. No amendment or modification of the Purchase Order or these Terms shall be binding unless set forth in a writing signed by authorized representatives of both Parties, except for changes made by Buyer in accordance with Section 4.
   3. Order of Precedence.  In the event of a conflict between these Terms and terms set forth in the body of the Purchase Order, the body of the Purchase Order shall prevail as to price, quantity, Delivery Date, Delivery Point, Delivery Term, payment terms and Warranty Period, and these Terms shall prevail as to all other matters.

 

4. Changes, Suspension and Cancellation. Buyer may, at any time and for any reason, by written notice to Seller (including by an amended Purchase Order or Release): (a) change the Delivery Point, Delivery Date, Specifications, packaging, quantity or shipping method for any Product not yet shipped; (b) suspend performance of all or any part of any Purchase Order or Release for up to ninety (90) days; or (c) terminate or cancel all or any part of any Purchase Order, Release or Blanket Purchase Order as to Products not yet shipped. Seller’s sole and exclusive remedy for any such change, suspension or cancellation shall be an equitable adjustment for Seller’s actual, reasonable and documented out-of-pocket costs of materials and labor incurred prior to such notice that Seller cannot reasonably mitigate, recover or reallocate, not to exceed the price of the changed, suspended or cancelled Products. Such adjustment shall not include, and Buyer shall have no liability for, lost profits, unabsorbed overhead, anticipated margin, facilities or capacity costs, or consequential or incidental damages of any kind. Seller shall not be entitled to any adjustment if the change, suspension or cancellation results from Seller’s breach or anticipated breach. Any claim for an equitable adjustment must be submitted to Buyer in writing with reasonable supporting documentation within thirty (30) days after Seller’s receipt of Buyer’s notice, and is waived if not so submitted. Seller shall take all commercially reasonable steps to mitigate such costs, including cancelling or reallocating raw material orders and returning unused materials.

 

5. Quantities; Forecasts; Supply Assurance. 
   1. No Quantity Guarantee.  Unless quantities and shipping details are specified in a Purchase Order or Release, Buyer makes no commitment or guarantee as to the quantity of Products it may purchase from Seller. Any forecasts or estimates of quantities furnished by Buyer, including in connection with a Blanket Purchase Order (“Forecasts”), are for planning purposes only, are non-binding, do not create any purchase commitment or other liability of Buyer, and shall not constitute an offer to purchase unless and until Buyer issues a Purchase Order or Release. Forecasts are Confidential Information of Buyer under Section 23.
   2. Supply Assurance.  Seller shall maintain production capacity, raw material supply and inventory sufficient to supply Buyer’s Forecast quantities and shall notify Buyer promptly (and in any event within two (2) business days) upon becoming aware of any circumstance likely to impair Seller’s ability to deliver Products in the quantities or by the Delivery Dates set forth in accepted Purchase Orders or Releases.
   3. Over-Shipments and Early Shipments.  Seller shall not ship Products in quantities exceeding, or earlier than five (5) business days before the Delivery Date specified in, the applicable Purchase Order or Release without Buyer’s prior written consent, and Buyer may, at Seller’s expense, return any such over-shipment or early shipment or hold it pending the Delivery Date. If Buyer elects to accept delivery of a quantity greater or less than the quantity ordered, the price shall be adjusted on a pro-rata basis and Seller shall issue a corrected invoice.

 

6. Prices. 
   1. Firm Prices.  Prices stated on a Purchase Order are firm, are expressed in U.S. dollars unless otherwise stated therein, and are inclusive of all packaging, labeling, standard documentation, palletization, and, where delivery is DDP or another Incoterms 2020 rule under which Seller bears such costs, all freight, insurance, customs duties, tariffs and import charges. Seller shall not increase the price of any Product covered by an accepted Purchase Order or Release for any reason, including increases in the cost of raw materials, labor, energy, transportation, taxes, duties or tariffs. Prices shall not be increased under a Blanket Purchase Order except as expressly permitted by Section 6(b).
   2. Index-Based Pricing.  Where a Blanket Purchase Order expressly provides that pricing is subject to adjustment based on a published commodity index, prices shall be adjusted (upward or downward) no more frequently than once per month, only to the extent that changes in the index, weighted by the proportion of the relevant commodity in the Products, are reasonably reflected in the price, and only upon at least thirty (30) days’ prior written notice to Buyer with supporting calculations. Any adjusted price applies only to Releases issued on or after the effective date stated in the notice, and Buyer may, without liability, cancel the affected Blanket Purchase Order or decline to issue further Releases. If such index ceases to exist or its reporting basis materially changes (including through a non-market adjustment made by the index publisher), the last available or undisputed index value shall apply until the Parties agree in writing on a replacement mechanism.
   3. Most Favored Buyer.  Seller represents and warrants that the price per unit of Product (excluding freight costs) charged to Buyer is Seller’s lowest price for such Product and shall not exceed Seller’s price per unit sold to any other buyer for the same or a substantially similar product in like quantities. If Seller charges any other buyer a lower price, Seller shall promptly notify Buyer, shall apply that price to all Products then subject to open Purchase Orders, and shall credit Buyer the difference on all Products purchased during the period in which the lower price was in effect. Seller’s compliance with this Section is subject to verification under Section 16.

 

7. Payment, Invoicing and Setoff. 
   1. Payment Terms; Invoices.  Payment terms shall be as set forth on the Purchase Order or, if none are stated, net sixty (60) days, in each case measured from Buyer’s receipt of Seller’s accurate and undisputed invoice. Seller shall invoice Buyer upon shipment of Products, and each invoice shall include without limitation: Seller’s name and supplier code, Seller’s invoice number, Buyer’s ten-digit Purchase Order number, Product SAP part number, Product quantity, Product units of measure, Product price, and total amount due. Invoices shall be sent electronically by email to [email protected] or as otherwise directed by Buyer, including by upload to Buyer’s supplier portal. Upon Buyer’s request, Seller shall provide Buyer a monthly statement of account showing at a minimum any outstanding amounts due by Buyer or owed to Buyer, which statement shall be sent to [email protected].
   2. Disputed Invoices; No Acceptance by Payment.  If Buyer has a bona fide dispute as to the accuracy of any portion of any invoice, it shall promptly notify Seller specifying the amount of the dispute and the reasons therefor, and shall make timely payment of the amount not in dispute while the Parties attempt to resolve the dispute. Seller shall promptly credit or refund to Buyer any amount that is determined to have been billed in error. Acceptance by Seller of a payment in an amount less than the amount due shall not operate to waive or preclude the right to recover any balance due. Buyer’s payment shall not constitute acceptance of any Product and shall not limit or waive any of Buyer’s rights or remedies, including under Sections 11, 12, 13 and 20.
   3. Setoff.  Buyer and its Affiliates may set off, recoup or deduct against any amounts payable to Seller under any Purchase Order, or under any other agreement between Seller (or any of its Affiliates) and Buyer (or any of its Affiliates), any amount that Seller or any of its Affiliates owes to Buyer or any of its Affiliates, including charges under Sections 8(c) and 11(b), amounts under Section 13, and costs of cover, upon written notice to Seller describing the basis and amount of the setoff or deduction in reasonable detail. No exercise or non-exercise of any right of setoff shall waive or limit any of Buyer’s other rights or remedies.
   4. No Late Charges.  Buyer shall not be liable for interest, late charges, service charges, collection costs or attorneys’ fees with respect to any invoiced amount, except to the extent required by applicable Laws. Any such charge appearing on a Seller invoice or statement is void and shall not be payable.

 

8. Delivery. 
   1. Delivery Term; Delivery Date; Delivery Point.  Each Purchase Order or Release shall indicate, among other things, the quantity, type and price of Products ordered, together with the delivery term (“Delivery Term”) and the delivery date (“Delivery Date”) by which Seller must deliver the Products to Buyer, or to Buyer’s designated customer or carrier, at the delivery point indicated in the Delivery Term (“Delivery Point”). The Delivery Term shall include an Incoterms 2020 rule; if no Delivery Term is specified, delivery shall be DDP, Buyer’s receiving facility designated in the Purchase Order (Incoterms 2020). Time shall be of the essence regarding all Delivery Dates.
   2. Packaging and Shipping Documentation.  Seller shall ensure that all Products are properly described, classified, packaged, marked and labeled, and are in proper condition for transportation, in accordance with applicable Laws (including the regulations of the U.S. Department of Transportation and the Occupational Safety and Health Administration) and Buyer’s reasonable packaging and shipping requirements. An itemized packing list shall accompany each shipment of Products, and Seller shall include the Purchase Order number and its supplier code on all packing lists and bills of lading. Within one (1) business day after shipment of Products, Seller shall provide to Buyer at [email protected] a bill of lading, certificate of analysis (if applicable), tracking number (if applicable), and such other shipment information as is necessary to enable Buyer to track the shipment.
   3. Costs for Failure to Deliver.  Should Seller fail to deliver Products, or the full quantity of Products, by the Delivery Date, in addition to other rights and remedies Buyer may have under these Terms and applicable Laws, Buyer may: (i) cancel the Purchase Order or Release, or the unfilled portion thereof, with no further liability to Buyer; (ii) if Buyer has cancelled pursuant to clause (i), purchase substitute products on the open market, and Seller shall pay to Buyer the costs of cover; and/or (iii) charge Seller for Buyer’s actual, reasonable and documented costs and expenses due to the untimely delivery of Products. Seller shall pay or credit any such charges; provided, however, that Seller may request reconsideration of any such charge by submitting a written request to Buyer within sixty (60) days after receipt of the charge, setting forth the reasons and details supporting reconsideration. Any disagreement with respect to the costs of untimely delivery shall be resolved in accordance with Section 27.
   4. Expedited Shipment.  If Seller anticipates that it will be unable to deliver Products by the applicable Delivery Date, Seller shall promptly notify Buyer and shall, at Seller’s sole cost and expense, use premium freight, expedited production or other commercially reasonable means to meet the Delivery Date. Seller’s use of such means does not waive or limit Buyer’s rights or remedies under Section 8(c).

 

9. Title and Risk of Loss. Title and risk of loss or damage to the Products shall pass to Buyer upon delivery of the Products to Buyer, or to Buyer’s designated customer or carrier, at the Delivery Point in accordance with the applicable Incoterms 2020 rule specified in the Delivery Term. For Products inventoried or stored by Seller prior to delivery, title and risk of loss shall remain with Seller until such delivery occurs.

 

10. Product Stewardship and Hazardous Materials. 
    1. Safety Data Sheets; Labeling.  Prior to or with the first shipment of each Product, and promptly upon any revision, Seller shall provide Buyer with a current safety data sheet (“SDS”) for the Product compliant with 29 C.F.R. § 1910.1200 and, where applicable, the corresponding requirements of each other jurisdiction into which Seller knows the Product will be delivered or distributed, in the language and format required by such jurisdiction. Seller shall provide Buyer with the hazard classifications and warning statements required to appear on Product labels under applicable Laws and, where Products are Buyer-branded, shall format SDSs and labels to identify the Product as a Buyer-branded product. All Product labels, packaging and shipping documentation shall comply with applicable Laws, including GHS-aligned hazard communication requirements.
    2. Transportation Compliance.  Seller shall properly classify, describe, package, mark, label and document all Products for transport in accordance with applicable Laws, including 49 C.F.R. Parts 171–180 and, where applicable, the IMDG Code and the IATA Dangerous Goods Regulations, and shall provide all dangerous goods documentation required for each shipment. For shipments of Hazardous Materials, Seller shall further ensure that its personnel receive hazardous materials training as required by applicable Laws, that a valid 24-hour emergency response telephone number (domestic and international, as applicable) is provided on the shipping documents, and that the applicable SDS has been provided to the emergency response organization prior to shipment. Unless otherwise agreed by Buyer, Seller shall be shown as the shipper on all documents relating to the shipment of Hazardous Materials.
    3. Chemical Inventories and Registrations.  Seller represents and warrants that each Product, and each substance contained in each Product, is listed on (and designated as active on), or is exempt from listing on, the TSCA Inventory and, where applicable to jurisdictions into which Seller knows the Product will be delivered, all other applicable chemical inventories (including Canada’s Domestic Substances List), and that Seller has obtained and will maintain all registrations, notifications and filings required for Seller’s manufacture and supply of the Products, and that Seller’s manufacture and supply of the Products complies with any applicable significant new use rule or other rule or order under Sections 5 or 6 of the Toxic Substances Control Act.
    4. Composition Disclosure; Change Notice.  Upon Buyer’s request, Seller shall disclose to Buyer Product composition information, including impurity profiles, reasonably necessary for Buyer’s regulatory compliance, product stewardship and customer disclosure obligations, subject to Section 23. Seller shall provide prior written notice to Buyer of, and obtain Buyer’s prior written approval for, any change described in Section 15(a).
    5. Incident Notice.  Seller shall promptly notify Buyer of any regulatory action, enforcement inquiry, safety finding or hazard determination materially affecting any Product or its supply.

 

11. Inspection; Nonconforming Products. 
    1. Inspection; No Deemed Acceptance.  Buyer, or Buyer’s Customer in the case of Products shipped directly to Buyer’s Customer, has the right to inspect and test all or a sample of the Products on or at any time after the Delivery Date, and may reject all or any portion of the Products that Buyer determines to be nonconforming or defective. If Buyer rejects any portion of the Products, Buyer may, effective upon written notice to Seller: (i) rescind the Purchase Order or Release in its entirety; (ii) accept the Products at a reasonably reduced price; (iii) reject the Products and require prompt replacement at Seller’s expense; or (iv) require repair or rework at Seller’s expense. Neither inspection, testing, acceptance, payment, nor the failure to inspect or test, whether before or after Products are used for their intended purpose or resold to Buyer’s Customers, shall constitute a waiver or limitation of any of Buyer’s rights or of Seller’s obligations under the Purchase Order or these Terms, including under Section 12 (Warranties), Section 13 (Recall of Products) and Section 20 (Indemnification). No provision of these Terms establishes any period after which Products are deemed accepted, and Buyer may revoke acceptance of any Product at any time after discovery of a nonconformity.
    2. Procedures for Defective, Damaged or Nonconforming Products.  If any defective, damaged or nonconforming Product is delivered to Buyer, to Buyer’s Customer or to Buyer’s designated third-party contractor, Buyer shall request Seller’s return authorization and, following such authorization or Seller’s failure to respond within five (5) business days of the request, shall either return the Product to Seller or dispose of it, in each case at Seller’s risk and expense. Promptly thereafter, Seller shall, at Buyer’s option, (i) replace such Product with a conforming Product and deliver the same, shipping charges prepaid, to such place as Buyer may direct in writing; (ii) repair or rework the Product at Seller’s expense; or (iii) refund or credit to Buyer the full price paid for the returned or disposed Product, together with any shipping, duty and handling costs borne by Buyer. If Seller fails to promptly replace, repair or refund, Buyer may purchase substitute products from another source and charge Seller the costs of cover. Buyer may charge Seller for its actual, reasonable and documented costs and expenses due to the poor quality of the Products (including inspection, sorting, containment, rework, storage, handling, premium freight and return freight), which shall include without limitation an administrative charge of two hundred dollars ($200) for each Nonconformance Report (“NCR”) prepared by Buyer due to nonconforming Product. The evaluation of a Product as defective, damaged or nonconforming shall be made by Buyer in good faith. Seller shall pay or credit any such charges; provided, however, that Seller may request reconsideration of any such charge by submitting a written request to Buyer within sixty (60) days after receipt of the charge, setting forth the reasons and details supporting reconsideration. Any disagreement with respect to whether a Product is defective, damaged or nonconforming, or as to the costs of poor quality, shall be resolved in accordance with Section 27, and shall not excuse Seller’s obligation to continue performance under open Purchase Orders. The rights and remedies in this Section are cumulative and in addition to, and not in lieu of, Buyer’s other rights and remedies under these Terms and applicable Laws.

 

12. Warranties. 
    1. Warranty.  Seller represents and warrants that the Products shall: (i) be conveyed with good title, free and clear of any and all liens, security interests and encumbrances; (ii) be new and unused unless the Purchase Order states otherwise; (iii) meet or exceed the Specifications and Seller’s own published specifications and product literature for the Products; (iv) be merchantable and fit for the purposes for which such Products are ordinarily used and for any particular purpose made known to Seller; (v) comply and conform to, and be properly identified and labeled in accordance with, all applicable Laws and industry standards, including those pertaining to consumer protection, environmental responsibility, products liability and safety; (vi) substantially conform in all respects to any samples, drawings or descriptions furnished or approved by Buyer; (vii) be free from any defects in design (except to the extent the design is furnished by Buyer), materials, workmanship, parts and components; (viii) carry production and date codes; and (ix) not infringe upon or misappropriate any rights of any third party, including any patent or other intellectual property rights.
    2. Warranty Period.  The warranties in clauses (ii), (iii), (iv), (vi), (vii) and (viii) of Section 12(a) apply during the longest of: (1) twenty-four (24) months from the date of delivery; (2) the stated shelf life of the Product; (3) in the case of Products resold to Buyer’s Customers, or incorporated into products sold by Buyer to Buyer’s Customers, the period of Buyer’s warranty to Buyer’s Customers for such products; and (4) any warranty period offered by Seller or Seller’s suppliers for the Products (the “Warranty Period”). The warranties in clauses (i), (v) and (ix) of Section 12(a) are continuing obligations and are not limited by the Warranty Period. The Parties intend that the warranties in Section 12(a) explicitly extend to the future performance of the Products throughout the Warranty Period, and that discovery of a breach must await such future performance. All warranties shall survive delivery, inspection, testing, acceptance, payment, use and resale, and shall not be affected by the fact that Buyer has resold or transferred the Products. Buyer shall give Seller notice of a warranty claim within a reasonable time after discovery; failure to give such notice shall not relieve Seller of its obligations under this Section except to the extent Seller is materially prejudiced thereby, and the burden of proving prejudice is on Seller.
    3. Product Labeling.  Seller further represents and warrants that: (i) Products shall conform to all statements made on the applicable packaging components, including all labels, containers, and packages, in connection with the manufacture, packaging, supply, sale and use of such Products; and (ii) the statements made on such packaging components shall be truthful and accurate from a technical, legal, Specifications and product-claim standpoint.
    4. Warranties Cumulative.  The representations and warranties set forth in these Terms are cumulative and in addition to, and not in lieu of, all other warranties and remedies provided under applicable Laws, including the implied warranties of merchantability and fitness for a particular purpose, all of which are expressly reserved by Buyer.
    5. Warranty Remedies and Technical Support.  During the Warranty Period, upon a breach of this Section, Seller shall, at its own cost and expense and at Buyer’s option, promptly replace or repair the defective or nonconforming Products and pay all related expenses, including transportation charges for return of the Products and delivery of repaired or replacement Products to Buyer or Buyer’s Customer. If a Product cannot be promptly repaired or replaced, Seller shall refund the full purchase price of such Product, including any shipping, duty and handling costs borne by Buyer, and Buyer may purchase substitute products from another source and charge Seller the costs of cover. Seller shall provide warranty claim assessment, management and follow-up and, upon Buyer’s request, normal design, quality assurance, engineering and technical support for the Products to Buyer and to Buyer’s Customers, together with copies of any performance test data involving the Products and comparable competitor products, Product claim substantiation and related technical data respecting Product performance. All of Seller’s warranty obligations, including the extension of those obligations to Buyer’s Customers, are Seller’s obligations alone, and Buyer shall have no warranty obligations as part of its resale, lease or transfer of the Products.
    6. Warranties Run to Buyer’s Customers.  The representations and warranties in this Section 12 inure and run to Buyer, its Affiliates, successors and assigns, and extend to any resale, lease or transfer of the Products by Buyer to Buyer’s Customers, who may enforce them directly against Seller. Seller hereby assigns to Buyer, and Buyer may further assign to Buyer’s Customers, all warranties, indemnities and similar rights that Seller holds against its own suppliers and subcontractors with respect to the Products, to the extent assignable.

 

13. Recall of Products. If Buyer, any of Buyer’s Customers or any governmental authority determines that a Recall Event is necessary or advisable with respect to any Products sold to Buyer, Buyer shall have the sole right to determine whether and how to conduct the Recall Event, including its scope, timing, depth of distribution, and all communications to customers, consumers and governmental authorities, and Seller shall provide all information, records and assistance reasonably requested by Buyer. Seller shall be liable for all of Buyer’s reasonable, documented costs and expenses associated with a Recall Event to the extent the Recall Event is attributable to Products that fail to conform to the warranties set forth in these Terms or to Seller’s breach, including the costs of investigation and testing, customer and consumer notification, retrieval, transportation, storage, inspection, sorting, rework, replacement, destruction, packaging and label replacement, restocking charges, refunds and money-back guarantees honored by Buyer, regulatory fines and penalties assessed against Buyer, and internal costs of Buyer’s personnel dedicated to the Recall Event. At Buyer’s option and Seller’s sole cost, Seller shall promptly replace any affected Products. Seller shall reimburse Buyer within thirty (30) days after receipt of Buyer’s invoice and reasonable supporting documentation, and Buyer may set off such amounts under Section 7(c). Where applicable, Seller shall pay all reasonable expenses associated with determining whether a Recall Event is necessary. This Section applies whether or not the Warranty Period has expired.

 

14. Marks and Labeling. 
    1. License to Use Marks.  To the extent any trademarks, service marks, brands, logos or other trade indicia of Buyer or of Buyer’s Customers (“Marks”) are to be affixed to Products at Buyer’s instruction, Buyer grants to Seller, for the duration of the applicable Purchase Order, a limited, revocable, non-exclusive, non-transferable license authorizing Seller to affix the Marks onto such Products solely for delivery back to Buyer or Buyer’s designee. In affixing the Marks, Seller will comply with any and all of Buyer’s branding guidelines and work with Buyer to ensure the latest artwork is being used. Seller shall not use, affix or display the Marks in any other manner, or for any other reason, or on any other product. Seller acknowledges and agrees that nothing in the Purchase Order or these Terms shall prevent Buyer from using the Marks at any time in connection with any products or services or from allowing any third parties to use the Marks in connection with any products or services, at Buyer’s election. Seller acknowledges Buyer’s exclusive rights, title and ownership (or control) in the Marks and agrees not to take or cause any action which would impair or interfere with such rights, title, ownership, control, use or any registration thereof. All use by Seller of the Marks will inure to Buyer’s benefit. Seller shall not seek or obtain protection of any kind, including registration, of the Marks, or assist any third party to do so, without the prior written consent of Buyer. Seller also agrees to reasonably assist Buyer to the extent necessary in protecting and enforcing Buyer’s rights in the Marks (and the rights of Buyer’s Customers, where applicable), including obtaining or maintaining registrations for any of the Marks and providing necessary affidavits or other documents. Seller shall notify Buyer in writing of any infringements of the Marks that come to its attention. Buyer shall have the sole right to determine whether or not any action shall be taken on account of any such infringements.
    2. Marked Labels.  If Buyer instructs Seller to apply or affix Marks on or to the Products, Buyer shall either provide Seller with labels for this purpose (“Marked Labels”) or provide Seller with the artwork, in such form as the Parties agree, from which Seller shall develop and purchase the Marked Labels necessary to label the Products. All Marked Labels, and their location(s) on the Products, must be approved in advance by Buyer and may not be changed or moved without Buyer’s consent. Unless otherwise agreed by Buyer, Seller shall be responsible for the content of the Marked Labels from a technical, legal, Specifications and product-claim standpoint, and Buyer shall be responsible for the content of the Marked Labels from an artistic, copyright and trademark standpoint.
    3. Restrictions.  Seller shall not, directly or indirectly, manufacture, supply, advertise, distribute, market, merchandise, promote, sell or resell any Products bearing the Marks to any person other than Buyer or Buyer’s designee, or allow any third party to do so, without Buyer’s prior written consent, and shall not manufacture, supply, advertise, distribute, import, market, merchandise, promote, sell or resell any product using trademarks, service marks or other trade indicia that are confusingly similar to the Marks. To the extent Seller lawfully offers goods similar to the Products to others, Seller will not state or otherwise indicate that such goods are equivalent to the Products unless provable without reference to or reliance on Seller’s sale of Products to Buyer or any Confidential Information of Buyer.

 

15. Quality; Change Control; Manufacturing Locations. 
    1. Change Control; Specifications; Improvements.  Seller shall not change any raw material, raw material source or supplier, formulation, manufacturing process, or manufacturing location for any Product, in any manner that could affect the Product’s form, fit, function, performance, quality, or regulatory status, without Buyer’s prior written approval. No changes in the Specifications of any Products shall be made unless written notice of the proposed change is provided and the change is agreed to by the Parties in writing. All new technology, upgrades or other improvements developed or acquired by Seller that relate to the Products shall be offered as improvements to such Products, with an appropriate price adjustment as agreed by the Parties in writing.
    2. Supplier Quality Handbook.  Seller shall maintain strict compliance with the standards, procedures and processes set forth in the current edition of Buyer’s Supplier Quality Handbook. Buyer will update and maintain the current edition of Buyer’s Supplier Quality Handbook on Buyer’s supplier portal. Buyer will notify Seller of material updates, which will take effect thirty (30) days after such notice. Seller is responsible for monitoring and ensuring compliance with the latest edition of Buyer’s Supplier Quality Handbook.
    3. Quality System.  Seller shall institute and maintain a quality control and inspection system for the Products that is compliant with ISO 9001. Seller, if eligible, shall maintain or seek registration to ISO 9001 or IATF 16949, and shall notify Buyer promptly of any loss, lapse or suspension of such registration.
    4. Corrective Action.  Seller shall immediately respond with documented corrective action to any quality control violation or nonconformance issue, including violations of the requirements and standards set forth in this Section. Buyer will notify Seller when a Product nonconformance has occurred and instruct Seller as to whether a corrective action response is required (Supplier Corrective Action Request (“SCAR”)). The timetable in Section 15(d)(i) applies to a SCAR issued for a Product nonconformance or quality control violation; the response period for a SCAR issued on the basis of a performance review is set forth in Section 15(i).
       1. If Buyer issues a SCAR to Seller, Seller must take effective action to contain the defect within twelve (12) hours of notice of the quality control problem or nonconformance issue; identify the root cause of the defect and implement a short-term corrective action within forty-eight (48) hours of notice; submit a long-term corrective action plan to Buyer’s technical and quality departments within ten (10) calendar days of notice; and implement the approved long-term corrective action plan within thirty (30) calendar days of notice. If Buyer does not issue a SCAR to Seller and instead issues an NCR, Seller, at a minimum, shall take all reasonable commercial actions necessary to contain and prevent any additional defects, issues, or violations.
       2. In the event Buyer determines in its reasonable discretion that Seller’s SCAR response is inadequate, or in the event of a recurring quality control violation or nonconformance issue, Buyer reserves the right to institute an investigation and certification at Seller’s location utilizing internal resources or a third-party Quality Service Provider (“QSP”). Such investigation and certification will be conducted at Seller’s expense.
       3. In each case of a quality control violation or nonconformance issue, if requested by Buyer, Seller shall respond by utilizing the 8 Disciplines of Problem Solving or a similar methodology approved by Buyer’s quality department.
    5. Containment.  Buyer may utilize internal resources or employ designated third-party QSPs to contain and inspect any Seller quality issues that may arise. Buyer will inform Seller of the affected batch, and Seller shall bear the reasonable, documented cost of such inspection and containment work to the extent attributable to nonconforming Products.
    6. APQP and PPAP.  When developing and submitting Products to Buyer during Seller’s manufacturing process, all stages of Advanced Product Quality Planning (APQP) and Production Part Approval Process (PPAP), to the extent applicable to the Products or required by Buyer’s Supplier Quality Handbook, must be followed and all other information requested by Buyer in support of APQP and PPAP must be supplied.
    7. Manufacturing Locations; Contract Manufacturers.  Seller shall only manufacture Products at the facilities that Seller has disclosed to Buyer and that Buyer has approved in its reasonable discretion. If Seller proposes to add or change any manufacturing location for Products, Seller shall notify Buyer and Buyer shall have the opportunity to review and approve such facility in Buyer’s reasonable discretion. Seller shall not engage a third-party contract manufacturer to manufacture and/or supply a Product without Buyer’s prior written consent, which consent shall not be unreasonably withheld. If the Products are to be manufactured and/or supplied by a contract manufacturer, the contract manufacturer must comply with all of Seller’s obligations under these Terms. Seller shall be responsible for any breach of its obligations under the Purchase Order or these Terms, even if the breach was actually committed by a contract manufacturer, and shall be responsible for verifying the compliance of its contract manufacturers with all obligations under these Terms and with all applicable Laws and industry standards.
    8. Records.  Seller shall retain production, quality, testing and traceability records for each lot of Product for at least five (5) years after delivery and shall make them available to Buyer upon request.
    9. Performance Reviews.  Buyer may conduct periodic performance reviews of Seller, which may include review of Seller’s quality scorecard. Seller shall support Buyer’s high quality and service standard with continuous improvement goals of producing Products with “zero” defects and 100% on-time delivery. A SCAR may be required at Buyer’s discretion if Seller’s overall performance rating falls below ninety percent (90%), and Seller shall respond to any such performance-review SCAR with a written improvement plan within thirty (30) calendar days after notification. The containment and corrective action timetable in Section 15(d)(i) does not apply to a performance-review SCAR unless Buyer states otherwise in the SCAR.

 

16. Audit; Cost Information. 
    1. Audit and Inspection Rights.  Buyer, or its authorized representatives, shall have the right at any reasonable time, upon reasonable advance notice (or without notice where Buyer has reasonable grounds to suspect noncompliance or a quality or safety issue), to perform an operational, quality, security or regulatory audit with respect to Products provided to Buyer, including (i) on-site inspection of materials, work in process, finished Products and related records at any facility at which Products are manufactured, stored or such records are kept (and if Seller does not control such facility, Seller shall obtain the right for Buyer to conduct such inspection); (ii) audits related to compliance with Laws, Product Regulations and these Terms; and (iii) review of books and records to verify the accuracy of Seller’s invoicing to Buyer and Seller’s compliance with Section 6(c). Buyer shall conduct any such audit during normal business hours and in a manner not unduly disruptive to Seller’s operations, and shall honor Seller’s reasonable security and confidentiality controls. Seller shall provide Buyer, or its authorized representatives, such information and assistance as reasonably requested, including copies of all documents, data, or information in the possession or control of Seller that pertain to the Products. Buyer assumes no responsibility and waives no rights as a result of any such audit or inspection. If any audit discloses that Seller is not in compliance with the requirements of the Purchase Order or these Terms, Buyer may, in addition to any other rights at law or in equity: (1) require Seller to immediately remedy the cause of the noncompliance; (2) cancel any open Purchase Order, Release or Blanket Purchase Order without liability to Buyer; (3) further audit Seller to verify that such noncompliance is being addressed, at Seller’s cost; and (4) require Seller to reimburse Buyer’s reasonable costs of the audit and, if the audit discloses overcharges, to promptly refund them with interest at the lesser of one percent (1%) per month or the maximum rate permitted by applicable Laws.
    2. Cost Information.  Upon Buyer’s request, and in connection with any proposed price adjustment or any pricing established on a cost-plus or index basis, Seller shall provide reasonable supporting cost information for the Products, including a breakdown of material, labor, overhead and freight components, in sufficient detail to permit Buyer to evaluate the price or proposed adjustment.

 

17. Tooling and Buyer Property.
    1.  Unless otherwise agreed in writing (including in a Purchase Order), Seller shall fund all tooling, gauging and facilities necessary for the Products, whether standard or unique to the manufacture of the Products, and shall maintain, repair and replace the same at its own expense in order to ensure that there are no disruptions to the supply of Products to Buyer. Upon request, Seller shall provide to Buyer detailed descriptions of such tooling and related information.
    2. All tooling, gauges, dies, molds, fixtures, patterns, equipment and other items furnished by Buyer, or funded in whole or in part by Buyer (“Buyer Tooling”), are and shall remain the sole property of Buyer. Seller shall plainly mark Buyer Tooling as the property of Buyer, hold it at Seller’s risk, insure it at Seller’s expense for Buyer’s benefit, keep it free of all liens and encumbrances, use it solely to manufacture Products for Buyer, and maintain it in good working condition. Unless otherwise approved in writing by Buyer, Seller shall not use Buyer Tooling to manufacture, recondition or repair products except for sale to Buyer or a third party approved by Buyer. Seller shall release and return Buyer Tooling to Buyer or its designee immediately upon Buyer’s request or upon completion, cancellation or termination of the applicable Purchase Order, in good condition, normal wear excepted.
    3. Buyer shall retain all rights to drawings, formulations, engineering instructions, Specifications, and other data furnished to Seller by Buyer, and no such drawings, formulations, engineering instructions, Specifications, or other data shall, without written permission of Buyer, be reproduced or used in any way except for the benefit of Buyer. All such drawings, formulations, engineering instructions, Specifications and data will be returned to Buyer immediately upon request or upon completion, cancellation or termination of the applicable Purchase Order.
    4. Access and Return.  Buyer Tooling includes any tooling, gauging, equipment or facilities the cost of which is separately paid by Buyer or amortized in the price of the Products. Upon Buyer’s written request, or upon completion, cancellation, expiration or termination of the applicable Purchase Order, or upon Seller’s breach or insolvency, Seller shall promptly release and return Buyer Tooling to Buyer or its designee, in good condition, normal wear excepted, and shall permit Buyer or its designee to enter Seller’s premises during normal business hours on twenty-four (24) hours’ notice to inspect, inventory and retrieve Buyer Tooling, with Seller afforded a reasonable opportunity to be present. Seller waives any lien, setoff or other right to retain Buyer Tooling on account of amounts claimed to be owed by Buyer.

 

18. Buyer's Confidential Information; Exclusivity; Developments.
    1. Seller shall not acquire any right, title or interest in any patents, patent applications, copyrights, trade secrets, formulations, industrial design rights or other intellectual property rights of Buyer, and may use the same only for the production and supply of Products to Buyer and Buyer’s designees. Seller shall sell and supply the Products that use Confidential Information, formulation, Specifications, or technology supplied by Buyer or developed pursuant to Seller’s development or manufacturing programs requested or funded by Buyer exclusively to Buyer or to a Buyer designee, and shall not manufacture, recondition, sell, market, consign or deliver, directly or indirectly, or provide assistance in the manufacture or reconditioning of, any such Products other than for or to Buyer or a Buyer designee, without prior written permission from Buyer.
    2. Seller shall not, in any case, make available to anyone, including its own joint ventures, partnerships, limited partnerships and subsidiaries, Confidential Information, formulation, Specifications, or technology supplied by Buyer, for any reason without the express prior written permission of Buyer, and shall not permit its joint ventures, partnerships, limited partnerships and subsidiaries to trade on Buyer’s name for any reason without the express prior written permission of Buyer. Any mention of Buyer’s name, in any manner or media, that implies or directly states that Seller is a raw material, additive or product supplier to Buyer is prohibited.
    3. Developments.  All formulations, specifications, processes, improvements and other work product conceived or developed by or for Seller (i) using Buyer’s Confidential Information or (ii) under any development or manufacturing program funded in whole or in part by Buyer (“Developments”) shall be the sole property of Buyer, and Seller hereby assigns to Buyer all right, title and interest therein. Seller retains its pre-existing intellectual property and grants Buyer a non-exclusive, perpetual, royalty-free license to use such pre-existing intellectual property to the extent incorporated into any Development or Product.
    4. Section 18(c) (including Buyer’s ownership of and Seller’s assignment of Developments, and the license granted to Buyer therein) survives indefinitely. The obligations in Sections 18(a) and 18(b) survive the completion, cancellation, expiration or termination of any Purchase Order for so long as the underlying Confidential Information remains subject to protection under Section 23, which, in the case of Confidential Information constituting a trade secret (including Product formulations, manufacturing processes and related technical know-how), continues for so long as such information remains a trade secret.

 

19. Seller's Intellectual Property.
    1. Seller represents and warrants that: (i) it owns or has the right to use, transfer or sublicense (by right of license or otherwise) all of the trademarks and other intellectual property rights of Seller, if any, pertaining to the Products (other than those rights owned or controlled by Buyer) and has not granted, licensed, sublicensed or otherwise transferred any such rights to any third party in a manner that would impair Buyer’s use (or the use by Buyer’s Customers) of the Products, including the advertising, distribution, importing, marketing, merchandising, promotion, sale, offer for sale, or resale of the Products; and (ii) any and all intellectual property markings (or the absence thereof) on the Products are in compliance with all applicable Laws.
    2. Seller grants to Buyer and its Affiliates, and to Buyer’s Customers if applicable, a perpetual, worldwide, paid-up, royalty-free, non-exclusive license under each copyright that Seller owns, controls, or has the right to license to reproduce, prepare derivatives of, sublicense, distribute, perform, and display any software that is embedded or loaded in the Products in conjunction with the use or sale of the Products.

 

20. Indemnification.
    1. Seller’s Indemnity.  Seller shall indemnify, defend, and hold harmless Buyer, its Affiliates, and their respective directors, officers, employees, shareholders, members, managers, agents, successors, assigns, consultants, business invitees, and Buyer’s Customers (collectively, “Buyer Indemnified Parties”), from and against any and all Losses arising out of, caused by or in any way connected with: (i) any breach by Seller of the Purchase Order or these Terms, including any breach of the warranties in Section 12; (ii) death of or injury to any person, or damage to or loss of any property, caused by or alleged to be caused by any Product or any actual or alleged defect in or nonconformity of any Product; (iii) any negligence or intentional misconduct of Seller, its shareholders, members, directors, managers, officers, employees, agents, contractors or contract manufacturers in connection with Seller’s performance; (iv) any actual or alleged infringement or misappropriation of any patent, copyright, trademark, trade secret or other intellectual property right of any third party, in any jurisdiction, resulting from the manufacture, import, export, use, offer to sell, sale, resale or supply of any Product (including its packaging), except to the extent such claim arises solely from Marks affixed to Products at Buyer’s request; and (v) the use, design, composition, make-up, manufacture, labeling, patent marking, packaging, marketing, or distribution of any Product, or its delivery, including the costs of any Recall Event, product replacement, packaging or label replacement, product liability claims, warranty claims, stocking or restocking charges, freight, or money-back guarantees. This Section 20(a) applies whether or not the Losses arise from a claim asserted by a third party, and Buyer may recover Losses it incurs directly. Seller’s obligations under this Section 20(a) shall not apply to the extent Losses are caused by the negligence or intentional misconduct of Buyer. If any Product becomes, or in Buyer’s reasonable judgment is likely to become, the subject of an infringement claim or injunction, Seller shall, at its expense and at Buyer’s option, (1) procure for Buyer and Buyer’s Customers the right to continue using, selling and reselling the Product, (2) modify or replace the Product with a non-infringing Product that meets the Specifications, or (3) accept return of the affected Product for a full refund and reimburse Buyer’s reasonable costs of cover, in each case in addition to Seller’s other obligations under this Section 20.
    2. Buyer’s Indemnity.  Buyer shall indemnify, defend, and hold harmless Seller, its Affiliates, and their respective successors and assigns, and any shareholder, member, director, manager, officer, employee or agent thereof (collectively, “Seller Indemnified Parties”), from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of any third-party claim, demand, action or proceeding caused by or connected with: (i) any negligence or intentional misconduct of Buyer, its shareholders, members, directors, managers, officers, employees, agents, or contractors in connection with Buyer’s performance under the Purchase Order; or (ii) any actual or alleged infringement or misappropriation of any third-party intellectual property right arising solely from Marks affixed to Products at Buyer’s request. Buyer’s obligations under this Section 20(b) shall not apply to the extent such claims are caused by the negligence or intentional misconduct of Seller.
    3. Notice to Indemnifying Party.  If a Party shall receive notice or have knowledge of any claim that may result in a claim for indemnification by such Party under these Terms, such Party shall, as promptly as practical, give written notice to the other Party of the facts and circumstances relating to such claim and complete copies of all notices, pleadings or other papers related thereto. Failure to give such notice or to provide such information shall not relieve any Party owing an indemnity obligation under these Terms from the obligation to provide a defense and indemnity to the Party failing to give notice; provided the indemnifying Party or its insurer(s) have not been prejudiced by such failure to give notice or provide information. Should the indemnifying Party or its insurer(s) assert prejudice as a result of such failure and seek to deny any indemnity obligation as a result thereof, the burden of proof shall be on the indemnifying Party to show that such indemnifying Party and/or its insurer(s) have been prejudiced thereby.
    4. Defense and Settlement.  With respect to any claim subject to this Section 20: (i) Seller shall defend the claim at its expense with counsel reasonably acceptable to Buyer; (ii) Buyer may participate in the defense with counsel of its own selection; (iii) Buyer may, at any time and at its election, assume or resume control of the defense of any claim against a Buyer Indemnified Party, in which case Seller shall pay the reasonable fees and expenses of Buyer’s counsel as incurred; (iv) Seller shall not settle or compromise any claim, or consent to the entry of any judgment, without Buyer’s prior written consent, which shall not be unreasonably withheld; and (v) if Seller fails to assume the defense within twenty (20) days after notice of the claim, or fails to conduct it diligently, Buyer may assume the defense and settle the claim at Seller’s expense, and Seller shall be bound by the result. Buyer’s indemnification obligations under Section 20(b), if any, shall be governed by clauses (i), (ii), (iv) and (v) of this Section with the roles of the Parties reversed, and Buyer shall control the defense of any claim it is required to indemnify.

 

21. LIMITATION OF BUYER'S LIABILITY. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING LOST PROFITS, LOST REVENUES, LOSS OF GOODWILL, UNABSORBED OVERHEAD OR ANTICIPATED MARGIN) ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE ORDER OR THESE TERMS, REGARDLESS OF HOW CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY OR RECOVERY. BUYER’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH ANY PURCHASE ORDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE CONFORMING PRODUCTS DELIVERED UNDER THAT PURCHASE ORDER AND NOT PAID FOR, PLUS ANY AMOUNT EXPRESSLY PAYABLE UNDER SECTION 4. NOTHING IN THESE TERMS LIMITS SELLER’S LIABILITY TO BUYER OR THE BUYER INDEMNIFIED PARTIES, INCLUDING UNDER SECTION 12 (WARRANTIES), SECTION 13 (RECALL OF PRODUCTS) OR SECTION 20 (INDEMNIFICATION), AND SELLER WAIVES ANY LIMITATION OF LIABILITY OR EXCLUSION OF DAMAGES CONTAINED IN ANY DOCUMENT OF SELLER. WITHOUT LIMITING THE FOREGOING, THE FOLLOWING SHALL BE DEEMED DIRECT DAMAGES OF BUYER AND SHALL BE RECOVERABLE: THE COSTS OF COVER, INCLUDING ANY PRICE DIFFERENTIAL FOR SUBSTITUTE PRODUCTS AND THE REASONABLE EXPENSES OF PROCURING, QUALIFYING, EXPEDITING AND TRANSPORTING SUBSTITUTE PRODUCTS; THE COSTS OF INSPECTING, SORTING, STORING, REWORKING AND RETURNING NONCONFORMING PRODUCTS; THE COSTS OF ANY RECALL EVENT WITHIN THE SCOPE OF SECTION 13; AND AMOUNTS PAID OR CREDITED BY BUYER TO ITS CUSTOMERS AS CHARGEBACKS, FINES, PENALTIES, CREDITS, LINE-DOWN OR STOP-SHIP CHARGES TO THE EXTENT ATTRIBUTABLE TO SELLER’S LATE DELIVERY OR NONCONFORMING PRODUCTS.

 

22. Insurance. Seller shall, at its own cost and expense, obtain and maintain policies of insurance as described below (or such other coverage limits as agreed to by the Parties in writing) with insurance companies having an A.M. Best Rating of “A-” or better for financial strength and “VII” or better for financial size. The limits set forth below are minimum limits and shall not be construed to limit Seller’s liability. A certificate of insurance evidencing such insurance policies shall be provided to Buyer prior to the first delivery of Products, shall be updated at least annually and shall be made available to Buyer as requested. Seller shall maintain the coverage required by this Section throughout its performance of each Purchase Order and, with respect to commercial general liability (including products/completed operations) and any pollution legal liability coverage, for a period of not less than three (3) years after the last delivery of Products or, if longer, the applicable Warranty Period; if any such coverage is written on a claims-made basis, Seller shall maintain that coverage or purchase an extended reporting period covering the same period. All policies shall (i) waive subrogation rights in favor of Buyer, where permitted by law; (ii) be designated as primary coverage to any similar coverage carried by Buyer; (iii) provide, to the extent available from the insurer, at least thirty (30) days’ prior written notice to Buyer of cancellation or non-renewal; and (iv) name Buyer as an additional insured (including with respect to products-completed operations coverage) using language substantially similar to, “Old World Industries, LLC, and any and all subsidiaries, directors, officers, employees, and agents as their interest may appear shall be named as additional insured with regard to this insurance policy.” Seller shall in any event give Buyer at least thirty (30) days’ prior written notice of any cancellation, non-renewal or material reduction of the required coverage. Seller’s failure to obtain and maintain the required insurance will not relieve it of any obligation contained in the Purchase Order or these Terms, including liability for claims in excess of the required limits of liability. Seller shall require its subcontractors and carriers to maintain insurance customary and adequate for the services they perform, and Seller remains responsible for their acts and omissions.
    1. Commercial General Liability insurance, including personal and advertising injury, products/completed operations, medical payments, bodily injury, and property damage, with minimum limits of (i) in the case of Products that contain Hazardous Materials, $10,000,000 per occurrence and in the aggregate, and Seller shall also maintain pollution legal liability (or equivalent environmental impairment) coverage, by endorsement or separate policy, with limits of not less than $5,000,000 per occurrence and in the aggregate; (ii) in the case of Products that are, or will be incorporated into, consumer products, $2,000,000 per occurrence and $4,000,000 in the aggregate; or (iii) in the case of all other Products, $1,000,000 per occurrence and $2,000,000 in the aggregate. Where more than one of clauses (i) through (iii) applies to a Product, the highest applicable limits and all additional coverages so triggered shall apply.
    2. Workers Compensation/Employer’s Liability insurance, if Seller’s employees or agents will be entering Buyer’s (or Buyer’s Customer’s) premises, with statutory limits, or $1,000,000 if no statutory requirement, and $1,000,000 in employer’s liability coverage.
    3. Automobile Liability insurance, if Seller’s employees or agents will be driving on Buyer’s (or Buyer’s Customer’s) premises or delivering to Buyer’s (or Buyer’s Customer’s) premises, with minimum limits of $1,000,000 per occurrence.
    4. Umbrella or excess liability insurance is acceptable to meet the limits required above. Any umbrella or excess liability policy used to satisfy those requirements shall be no less broad than the underlying liability coverages required herein (including as to Buyer’s additional insured status), shall have the same inception and expiration dates as the Commercial General Liability insurance, and shall “drop down” for exhausted underlying aggregate limits of liability coverage.

 

23. Confidentiality. The term “Confidential Information,” as used in these Terms, shall mean any and all information disclosed or conveyed by one Party or its agents (the “Disclosing Party”) to the other Party or its agents (the “Recipient”) in or via any conference, conversation or meeting (face-to-face, video, telephone, web or otherwise); document (e-mail, facsimile, instant message, presentation, regular mail, request for proposal, letter, memorandum, writing, or otherwise); or any other type of conveyance including but not limited to information pertaining to or related to: (i) current or future products and services (including current and future product and service development and pricing); accounting, asset, business, commercial, corporate, developmental, distribution, financial, growth, human resources, intellectual property (including copyright, patent, trademark, trade secrets, code, formulas, know-how, ideas, inventions and pending applications), investment, licensing, marketing, manufacturing, operations, pricing, production, real estate, research, or technical data, methods, plans, policies, presentations, processes, programs, procedures, records or strategies; customer and prospective customer accounts and lists; and any other business, commercial or technical information relating to the Disclosing Party’s current or prospective businesses, facilities or properties; (ii) the Purchase Order or its terms or subject matter; (iii) anything marked or otherwise identified by the Disclosing Party as confidential, restricted, proprietary, or secret; and (iv) anything disclosed or observed under circumstances under which a reasonable person would understand that such information is or should be confidential or proprietary to the Disclosing Party. Each Party agrees to hold all Confidential Information in strict confidence and to not use or disclose it to any entity or individual for any purpose other than the performance of the Purchase Order, without the prior written consent of the Disclosing Party. Recipient shall obligate its employees or agents who have or shall receive any part of the Confidential Information to not use or disclose it except as permitted herein. Upon written notice from the Disclosing Party, or upon completion, cancellation or termination of the Purchase Order (or, in the case of a Blanket Purchase Order, its expiration or termination), all copies of the Confidential Information shall be returned to the Disclosing Party or destroyed/deleted within ten (10) days of such request; provided, however, that Recipient shall have the right to maintain one archived copy for its records and defense of claims and litigation and Recipient may destroy any archival copies upon its scheduled destruction procedures in accordance with its retention schedule. If the Disclosing Party elects to have the Confidential Information destroyed/deleted, Recipient shall certify the destruction/deletion of same within the time period set forth in this Section. The above-stated provisions on confidentiality and use shall not extend to any information that: (a) at the time of disclosure to the Recipient, was already in the public domain; (b) after disclosure to the Recipient, has been published or otherwise becomes part of the public domain through no fault of the Recipient; (c) was known to the Recipient before disclosure by the Disclosing Party on a nonconfidential basis; (d) is disclosed to Recipient by a third party subsequent to disclosure by Disclosing Party, without restriction on disclosure and use, provided that the third party has not received it from Disclosing Party; or (e) was independently developed by the Recipient without using any of the Disclosing Party’s Confidential Information. In the event a court order or governmental regulation requires the Recipient to disclose all or part of the Confidential Information, such Party shall give the Disclosing Party prior written notice of the scope of the anticipated disclosure so as to enable the Disclosing Party to undertake all reasonable efforts to have such court or governmental agency maintain the secrecy and confidentiality of the Confidential Information. In addition to other remedies, each Party acknowledges that monetary damages may be insufficient for any breach of this Section, and either Party shall be entitled to seek specific performance and injunctive and equitable relief as a remedy if a material breach of this Section is established. Recipient shall not reverse engineer, disassemble or analyze any Product, sample, prototype or other material embodying Confidential Information for the purpose of ascertaining any formulation or other Confidential Information, and shall not use any Confidential Information to develop, or have developed, any competing or substitute product. The Parties’ obligations under this Section shall continue for a period of five (5) years after the later of (1) the disclosure of the Confidential Information, (2) the last delivery of Products under the applicable Purchase Order, or (3) the expiration or termination of the applicable Blanket Purchase Order; provided, however, that with respect to Confidential Information constituting a trade secret under applicable Laws (including formulations, manufacturing processes and related technical know-how), such obligations shall continue for so long as such information remains a trade secret under applicable Laws.

 

24. Compliance with Laws; Product Regulations; Ethical Sourcing; Trade Compliance.
    1. Compliance with Laws.  Each Party shall comply with all applicable Laws as they affect its respective obligations under the Purchase Order. With respect to the Products, Seller shall comply with all applicable Laws regarding the importation of Products and Product components (including packaging) and the use, design, composition, make-up, manufacture, labeling, packaging, marketing and distribution of the Products, including Laws pertaining to consumer protection; environmental responsibility; intellectual property; labor and employment (including underage employment); privacy; product liability; safety; security; and tariffs and quotas, and Buyer accepts no responsibility or liability for any violation of or noncompliance with such Laws by Seller. Seller shall reasonably cooperate with Buyer to ensure compliance with any Laws applicable to Buyer regarding the Products and, upon Buyer’s request, shall provide to Buyer in a timely manner information and documentation regarding Seller’s compliance with applicable Laws.
    2. Product Regulations.  Without limiting Section 24(a), Seller is solely responsible for the compliance of the Products with all environmental, health and safety, labeling, marking, licensing, authorization, certification, country of origin, hazard communication and other regulatory requirements of the United States and of each other jurisdiction into which Seller knows the Products will be delivered or distributed that are applicable to the import, export, manufacture, sale or distribution of the Products (“Product Regulations”), which may include, without limitation, California Health & Safety Code Section 25249.5 et seq. (“Proposition 65”); the Consumer Product Safety Act, 15 U.S.C. § 2051 et seq., and the regulations of the U.S. Consumer Product Safety Commission; the regulations of the U.S. Environmental Protection Agency; and the European Union’s Regulation on the Registration, Evaluation, Authorisation and Restriction of Chemicals (“REACH”). Seller shall provide Buyer all information and documentation, including supply chain data, necessary for Buyer to comply with Product Regulations applicable to Buyer.
    3. Anti-Corruption and Ethical Sourcing.  Each Party shall comply with applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and shall not offer, promise, give, or authorize any payment or thing of value to any government official or other person for the purpose of improperly obtaining or retaining business or securing an improper advantage in connection with the Purchase Order. Seller further represents, warrants, and covenants that: (i) neither Seller nor any person or entity in its supply chain for the Products uses forced, bonded, indentured, trafficked, or child labor; (ii) Seller complies with all applicable Laws regarding labor, employment, human rights, and supply-chain transparency, including, to the extent applicable, the Uyghur Forced Labor Prevention Act; and (iii) upon Buyer’s reasonable request, Seller shall certify its compliance with this Section and provide reasonable supporting information. Buyer may cancel any open Purchase Order or Release immediately upon written notice in the event of Seller’s breach of this Section.
    4. Conflict Minerals.  On an annual basis, or more frequently if requested by Buyer, Seller shall disclose to Buyer any Products delivered to Buyer that contain tin, tantalum, tungsten, gold, or other materials that may be designated as a conflict mineral by the U.S. government (“Conflict Minerals”). If Products contain any Conflict Minerals, Seller shall have a supply chain policy for Conflict Minerals and shall undertake (i) a reasonable inquiry into the country of origin of Conflict Minerals incorporated into the Products; (ii) due diligence of its supply chain, as necessary, to determine whether such Conflict Minerals are sourced from the Democratic Republic of the Congo or adjoining countries and, if so, whether they directly or indirectly support conflict in those countries; and (iii) risk assessment and mitigation actions as may be necessary to implement such inquiry and due diligence procedures. Seller shall provide Buyer all supporting information and documentation, substantially in the format reasonably requested by Buyer, including supply chain data necessary for Buyer to comply with its obligations to any of its customers under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and its implementing regulations, shall retain such information and documentation for a minimum of five (5) years subject to audit by Buyer upon reasonable notice, and shall include the substance of this Section in its contracts with any third party from which it purchases Products or components containing Conflict Minerals.
    5. Export Controls and Sanctions.  The Parties acknowledge that they, as well as the Products sold or otherwise transferred under the Purchase Order, may be subject to U.S. and Canadian export controls (including deemed export and re-export) requirements, laws and regulations and U.S. laws and regulations regarding embargoes, sanctions and similar laws, regulations and requirements applicable to exports (“Export Requirements”). Each Party represents that it is not currently sanctioned or included on any applicable sanctions list, including the U.S. Specially Designated Nationals List, and agrees to notify the other Party in the event that its status changes or it is placed on any such list. Each Party agrees to provide the other Party adequate information regarding its entity and ownership information to allow the other Party to complete necessary due diligence in order to comply with Export Requirements. Buyer may cancel any open Purchase Order or Release immediately upon written notice if Seller, or any owner or controlling person of Seller, becomes a sanctioned party or is included on any applicable sanctions list.
    6. Supply Chain Security.  If and to the extent Seller ships Products from a jurisdiction outside the United States into the United States, Seller accepts responsibility for, and shall implement security measures to ensure, the safe and secure packaging, containerization, transportation and delivery of such Products throughout the supply chain in adherence with the security criteria required under U.S. Customs and Border Protection’s Customs Trade Partnership Against Terrorism (“CTPAT”) program. Seller’s obligations under this Section continue until the Products are delivered to Buyer at the Delivery Point.
    7. Supplier Code of Conduct.  Seller shall comply with Old World Industries, LLC’s Supplier Code of Conduct, as made available to Seller on Buyer’s supplier portal, or with a functional equivalent approved in advance in writing by Buyer.
    8. Customs, Duties and Country of Origin.  Where Products are shipped from outside the customs territory of the United States, Seller shall act as exporter of record and, unless the Purchase Order states a Delivery Term under which Buyer bears such obligations, as importer of record, and shall be responsible for all customs entries, duties, tariffs, fees and import charges. Seller shall provide Buyer, with each shipment and upon request, accurate commercial invoices, the country of origin of each Product and its components, applicable Harmonized Tariff Schedule classifications, manufacturer identification, and any certifications or documentation necessary to support preferential tariff treatment (including under the United States-Mexico-Canada Agreement) or to respond to any inquiry by U.S. Customs and Border Protection. Seller shall notify Buyer promptly of any change in country of origin, classification or duty treatment affecting the Products, and shall indemnify the Buyer Indemnified Parties under Section 20 for any Losses arising from inaccurate or incomplete customs information furnished by Seller.

 

25. Termination; Discontinuation; Business Continuity; Financial Information.
    1. Termination.  In addition to Buyer’s rights under Section 4 (which permit Buyer to suspend, terminate or cancel any Purchase Order, Release or Blanket Purchase Order at any time and for any reason as to Products not yet shipped), Buyer may terminate any Purchase Order, Release or Blanket Purchase Order immediately upon written notice to Seller in the event of: (i) Seller’s breach of any term of the Purchase Order or these Terms that is not cured within thirty (30) days after written notice; (ii) Seller’s breach of Section 12 (Warranties), Section 15 (Quality; Change Control; Manufacturing Locations) or Section 24 (Compliance with Laws; Product Regulations; Ethical Sourcing; Trade Compliance), any repeated failure to deliver Products by the applicable Delivery Date, or any breach that is not curable (e.g., intentionally wrongful acts, fraud, or misrepresentation), in each case without any cure period; (iii) Seller becoming insolvent, making a general assignment for the benefit of creditors, filing a voluntary petition in bankruptcy, suffering or permitting the appointment of a receiver for its business or assets, becoming subject to any proceeding under any bankruptcy or insolvency law, whether domestic or foreign, or being wound up or liquidated, voluntarily or otherwise; or (iv) a change of control of Seller (whether by merger, sale of equity or otherwise) in favor of a direct competitor of Buyer. Seller may terminate an accepted Purchase Order only for Buyer’s failure to pay undisputed amounts that remains uncured for thirty (30) days after written notice to Buyer.
    2. Effects of Cancellation or Termination.  Upon the cancellation, expiration or termination of a Purchase Order, Release or Blanket Purchase Order: (i) with respect to the affected Purchase Order or Release and, in the case of a Blanket Purchase Order, each Release outstanding under it, Buyer may elect that the same either be cancelled without further liability of Buyer (other than payment for conforming Products already delivered and any amount payable under Section 4) or remain in effect and be fulfilled by Seller in accordance with its terms and these Terms, and Purchase Orders and Releases other than those affected shall continue in effect unless Buyer elects otherwise in writing; (ii) other than in the case of termination by Seller under Section 25(a) for Buyer’s uncured failure to pay undisputed amounts, at Buyer’s request Seller shall continue to supply Products, at the prices and on the terms in effect as of the date of the notice of termination, for up to one hundred eighty (180) days thereafter while Buyer transitions to an alternative source, and shall provide reasonable transition assistance; (iii) Seller shall promptly return all Buyer Tooling and all Buyer property, data and Confidential Information in accordance with Sections 17 and 23; and (iv) cancellation, expiration or termination shall not affect any rights or obligations accrued prior to the effective date thereof.
    3. Product Discontinuation.  Seller shall provide Buyer with at least twelve (12) months’ prior written notice before discontinuing the manufacture or supply of any Product that Buyer has purchased under a Blanket Purchase Order or under two or more Purchase Orders within the preceding twelve (12) months. Following such notice, Buyer may place one or more last-time-buy Purchase Orders for delivery through the discontinuation date, or such later date as the Parties may agree, at prices no less favorable than those in effect on the date of such notice.
    4. Business Continuity.  Upon Buyer’s request, Seller shall provide Buyer within ninety (90) days a business resumption and continuity plan reasonably acceptable to Buyer that identifies how Seller shall resume its obligations under open Purchase Orders in the event of a Force Majeure Condition. The plan shall describe Seller’s resumption and continuity procedures, demonstrate its ability to resume the normal supply of Products to Buyer as soon as commercially practicable, and take into account Seller’s suppliers and the suppliers of those suppliers.
    5. Seller Financial Information.  Upon Buyer’s request, Seller shall promptly provide its or its ultimate parent company’s Financial Statements to Buyer. “Financial Statements” means independently audited financial statements (i.e., income statement, balance sheet and cash flow statement) for the previous two (2) fiscal years and interim financial statements through the current fiscal year-to-date period or, if Seller does not prepare audited financial statements, such financial information as Seller customarily provides to its customers or lenders. Buyer shall hold and safeguard such Financial Statements as Confidential Information of Seller under Section 23.

 

26. Force Majeure. A Party shall not be liable under the Purchase Order or these Terms for delays or failure in its performance when such delays or failures are caused by any cause beyond the reasonable anticipation and control of such Party and not resulting from its fault or negligence, including without limitation actions of any governmental authority; acts of God (e.g., earthquake, explosion, fire, flood, violent storm); epidemics and pandemics; labor unrest and strikes; riots, sabotage and other terrorist actions; and war (“Force Majeure Condition”). A Force Majeure Condition does not include, and Seller’s performance shall not be excused by: economic hardship; changes in market conditions or demand; increases in the cost of raw materials, labor, energy, transportation or other inputs; currency fluctuation; changes in taxes, tariffs, duties or quotas; or the failure or delay of Seller’s suppliers or subcontractors, unless such failure or delay itself results from a Force Majeure Condition that is industry-wide and could not have been avoided through commercially reasonable planning, including dual sourcing and the continuity measures contemplated by Section 25(d). Buyer’s obligation to accept Products shall additionally be excused where changes in Law, tariffs, duties, market conditions or demand render acceptance commercially impracticable for Buyer. Nothing in this Section excuses a Party’s obligation to pay amounts due for conforming Products already delivered and accepted. Any Party claiming a Force Majeure Condition shall provide written notice to the other Party within five (5) business days after the claiming Party knows of the event, and such notice is a condition to relief under this Section. For so long as Seller’s ability to perform is affected by a Force Majeure Condition: (i) Seller shall allocate its total production of the Product among its customers on a basis no less favorable to Buyer than to any other customer, and in no event less than pro rata based on purchases during the preceding twelve (12) months; (ii) Buyer may cancel any Purchase Order or Release affected by the Force Majeure Condition, in whole or in part, without liability to Buyer; and (iii) Buyer may obtain the quantities of Product which Seller is unable to deliver from another source without any obligation to Seller. In the event a Force Majeure Condition affects Seller’s performance for at least thirty (30) days, Buyer may cancel any affected Purchase Order, Release or Blanket Purchase Order upon written notice to Seller.

 

27. Governing Law; Dispute Resolution; Venue.
    1. Choice of Law.  The Purchase Order and these Terms, and all claims or defenses based on, arising out of, or related to the Purchase Order, these Terms or the relationship of the Parties created thereby, shall be governed by, and enforced in accordance with, the internal laws of the State of Illinois, including its statute of limitations, without reference to Illinois’ choice-of-law rules or any principle calling for application of the law of any other jurisdiction; provided that if Buyer is an Affiliate of Old World Industries, LLC located outside of the United States or Canada, the Purchase Order and these Terms shall instead be governed by the laws of the jurisdiction in which such Affiliate is located, excluding its conflict-of-laws rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any transaction under these Terms.
    2. Good Faith Negotiations.  The Parties shall use commercially reasonable efforts to resolve any and all claims and disputes arising under the Purchase Order or these Terms first through good faith negotiations and without initially resorting to litigation or other similar proceedings; provided, however, that either Party shall be entitled to: (i) seek injunctive relief in any forum of competent jurisdiction to avoid irreparable harm, for breach of confidentiality, or for infringement or misappropriation of its intellectual property rights; or (ii) commence litigation or arbitration in the forum set forth below to avoid being barred by an applicable statute of limitations; in each case without first attempting to resolve such claim or dispute through good faith negotiations or mediation.
    3. Mediation.  Subject to the exceptions in Section 27(b), if the Parties are unable to resolve such claim or dispute via good faith negotiations, the Parties agree, prior to commencement of any legal action, suit or arbitration, to submit to at least one day of non-binding mediation in Cook County, Illinois (or, where Buyer is an Affiliate of Old World Industries, LLC located outside of the United States or Canada, in the jurisdiction where such Affiliate is located) with a mediator chosen jointly by the Parties and with costs to be divided equally between the Parties.
    4. Litigation and Venue; Arbitration for Non-U.S. Sellers.  Any legal action, suit, dispute or proceeding arising out of or related to the Purchase Order or these Terms shall be brought exclusively in state or federal court in Cook County, Illinois (or, where Buyer is an Affiliate of Old World Industries, LLC located outside of the United States or Canada, in the courts of the jurisdiction where such Affiliate is located), to the exclusion of all other courts and fora. The Parties irrevocably consent to the jurisdiction of, and venue in, such courts for all matters that arise under the Purchase Order or these Terms, waive any objection that such courts are an inconvenient forum, and waive the right to formal service of process, agreeing to accept service by hand delivery, by nationally or internationally recognized express delivery service, by certified or registered mail (return receipt requested), or by such other method as is authorized by applicable Laws. Notwithstanding the foregoing, if Seller is organized under the laws of a jurisdiction outside the United States, any claim or dispute not resolved under Sections 27(b) and 27(c) shall be finally resolved by binding arbitration administered by the International Centre for Dispute Resolution under its International Arbitration Rules, before a single arbitrator, seated in Chicago, Illinois (or, where Buyer is an Affiliate of Old World Industries, LLC located outside of the United States or Canada, in the jurisdiction where such Affiliate is located), and conducted in English; judgment on the award may be entered in any court of competent jurisdiction, and Section 27(b)(i) continues to apply.
    5. Jury Waiver.  EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THE PURCHASE ORDER OR THESE TERMS.
    6. Attorneys’ Fees and Costs.  Seller shall reimburse Buyer for all reasonable attorneys’ fees, expert fees, court costs and other expenses incurred by Buyer in enforcing the Purchase Order or these Terms against Seller, in collecting amounts owed by Seller, or in defending any claim brought by Seller in which Buyer is the prevailing party.
    7. Limitation of Actions.  Any action by Seller for breach of the Purchase Order or these Terms, or otherwise arising from the sale of Products, must be commenced within one (1) year after the cause of action accrues. This Section does not apply to any action by Buyer or any Buyer Indemnified Party, and does not limit the period within which Buyer may bring an action under applicable Laws.

 

28. Miscellaneous.
    1. Assignment.  Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Purchase Order or these Terms, in whole or in part, including by operation of law or change of control, without the prior written consent of Buyer, and shall not subcontract the manufacture or supply of Products except as permitted under Section 15(g). Any purported assignment, transfer, delegation or subcontract in violation of this Section is null and void, and no assignment or delegation relieves Seller of any of its obligations. Buyer may assign the Purchase Order or these Terms, in whole or in part, to any Affiliate or successor, or in connection with a merger, acquisition, or sale of all or substantially all of the assets or business to which the Purchase Order relates, in each case without Seller’s consent.
    2. Equitable Relief.  The Parties agree that if any term, condition, obligation or restriction in the Purchase Order or these Terms is breached and the damages to the aggrieved Party may be difficult or impossible to ascertain or quantify, the aggrieved Party shall be entitled to seek injunctive or other equitable relief, in addition to any other remedies which such Party may have under law.
    3. Independent Contractor.  Each Party shall act solely as an independent contractor and nothing herein shall at any time be construed to create the relationship of employer and employee, partnership, principal and agent, or joint venture as between Seller and Buyer. A Party shall have no right or authority, and shall not attempt, to enter into any contract, commitment, or agreement, or incur any debt or liability of any nature, in the name of or on behalf of the other Party. Each Party shall conduct its affairs with third parties so as to avoid the appearance or creation of any relationship between the Parties other than that of seller and purchaser.
    4. Notices.  All notices given under the Purchase Order or these Terms shall be in writing and shall be deemed properly served if delivered personally, sent via nationally or internationally recognized express delivery service or by certified or registered mail (return receipt requested, postage prepaid) to the receiving Party at the address set forth on the face of the Purchase Order, or sent by electronic mail (e.g., PDF) to the email address set forth on the face of the Purchase Order (or, if none, the email address from which the receiving Party customarily corresponds regarding the Purchase Order), in each case or to such other address, email address or addressee as a Party may designate by written notice. The date of notice shall be the date of delivery, if delivered personally, the date deposited with the delivery service or mail, or the date transmitted via electronic mail. Any notice to Buyer shall require that a copy be sent to: Old World Industries, LLC, 3100 Sanders Road, Suite 400, Northbrook, Illinois 60062, Attention: General Counsel.
    5. Third-Party Beneficiaries.  Each person to whom rights are expressly granted by these Terms is an intended third-party beneficiary of, and may enforce, the provision granting those rights. Without limiting the foregoing: Buyer’s Affiliates, successors and assigns, and Buyer’s Customers, may enforce Section 12 (Warranties); the Buyer Indemnified Parties may enforce Section 20(a); and the Seller Indemnified Parties may enforce Section 20(b). Except as stated in this Section, the Purchase Order and these Terms are for the sole benefit of the Parties and their permitted successors and assigns, and nothing herein, express or implied, confers upon any other person or entity any legal or equitable right, benefit or remedy.
    6. Publicity.  Seller shall not originate any publicity, news release, or other announcement, written or oral, whether to the public, press, the trade, any of Buyer’s customers or otherwise, relating to the Purchase Order, to performance thereunder or to the existence of an arrangement between the Parties, and shall not use Buyer’s name, Marks or logos in any advertising, customer list, website or marketing material, in each case without Buyer’s prior written approval. Buyer may identify Seller as a supplier of the Products to Buyer’s Customers, auditors, insurers and governmental authorities as Buyer deems necessary or appropriate. Either Party may make any disclosure required by applicable Laws or the rules of any securities exchange, after giving the other Party prior notice where practicable.
    7. Seller’s Services.  To the extent that Seller collaborates with or otherwise provides services to Buyer that are incidental to the purchase of Products, Seller represents and warrants that it is properly licensed, certified, and trained, in compliance with the applicable standards set forth by relevant governmental or industry association authorities, and that such services shall, to the extent applicable, follow Buyer’s applicable processes and will be provided with a degree of care and competence that, at a minimum, accords with customary industry standards and practices.
    8. Taxes.  All taxes or other charges imposed or assessed by any governmental authority related directly or indirectly to the transactions made under the Purchase Order shall be the responsibility of, and shall ultimately be paid by, the Party upon whom the tax or other charge is imposed by law. Where appropriate, Buyer shall reimburse Seller for all federal, state and local sales, use, gross receipts, and other excise taxes, fees, or charges that Seller may be required to initially pay on Buyer’s behalf, and Buyer may furnish applicable exemption or resale certificates in lieu of payment of such taxes.
    9. Headings.  The titles and subtitles of the Sections in these Terms are for reference and identification purposes only. They are not intended to modify, restrict or expand upon the content of the Sections themselves.
    10. Severability.  If any provision of the Purchase Order or these Terms is held invalid or inoperative, the other provisions shall be deemed valid and operative and, so far as is reasonable and possible, effect shall be given to the intent manifested by the provision held invalid or inoperative. In the event that any court of competent jurisdiction shall determine that any provision of the Purchase Order or these Terms or the application thereof is unenforceable because of the duration or scope thereof, the Parties agree that such court in making such determination shall have the power to reduce the duration and scope of such provision to the extent necessary to make it enforceable, and that the Purchase Order and these Terms in their reduced form shall be valid and enforceable to the full extent permitted by law.
    11. Survival.  Provisions of the Purchase Order and these Terms which by their nature should apply beyond the completion, cancellation, expiration or termination of the Purchase Order shall survive, including Sections 12 (Warranties), 13 (Recall of Products), 14 (Marks and Labeling), 17 (Tooling and Buyer Property), 18 (Buyer’s Confidential Information; Exclusivity; Developments), 19 (Seller’s Intellectual Property), 20 (Indemnification), 21 (Limitation of Buyer’s Liability), 22 (Insurance, for the period stated therein), 23 (Confidentiality), 24 (Compliance with Laws; Product Regulations; Ethical Sourcing; Trade Compliance), 25(b) (Effects of Cancellation or Termination), 27 (Governing Law; Dispute Resolution; Venue) and this Section 28.
    12. Cumulative Remedies.  The rights and remedies under the Purchase Order and these Terms are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.
    13. Waiver; No Modification by Course of Performance.  No waiver of any provision of the Purchase Order or these Terms is effective unless set forth in a writing signed by an authorized representative of the waiving Party that identifies the provision waived. No course of performance, course of dealing, or usage of trade, and no failure or delay by a Party in enforcing its rights or seeking remedies for any breach, shall be construed as a waiver of any provision or of the right to enforce it in that or any future instance, or be used to interpret, supplement, modify, or amend the Purchase Order or these Terms, the Parties agreeing pursuant to UCC § 1-302 to vary the effect of UCC § 1-303 accordingly. Without limiting the foregoing, no inspection, acceptance, use of, or payment for any Product by Buyer, and no failure to reject any Product, shall waive any of Buyer’s rights or remedies or any of Seller’s obligations or warranties under the Purchase Order or these Terms.
    14. Interpretation.  The term “day” means a calendar day unless expressly stated otherwise. The terms “including,” “include,” and “included” shall be interpreted as if followed by the words “without limitation.”

 

DOWNLOAD FULL OWI TERMS AND CONDITIONS FOR PURCHASE OF GOODS