TERMS AND CONDITIONS OF PURCHASE FOR GOODS

1. Applicability.   These Endura Coatings Terms and Conditions of Purchase for Goods (these “Terms and Conditions”), together with (a) any additional terms or conditions set forth in the purchase order issued by Buyer to Seller (as those terms are defined below) (the “Purchase Order”); (b) any other document in which these Terms and Conditions are attached or are incorporated in by reference; and (c) any attachments, instructions, or requirements furnished by Buyer to Seller (collectively, this “Contract”) apply to the purchase by Stechschulte/Wegerly AG LLC (d/b/a Endura Coatings) (“Buyer”) of the goods, materials, equipment, products, technical data, intellectual property, drawings, and services described in this Contract (collectively, “Goods”) from the seller party to whom the Purchase Order is addressed and its parent, subsidiaries, and affiliates (collectively, “Seller”).

2. Offer and Acceptance.

(a) This Contract constitutes an offer by Buyer to Seller and Seller accepts this Contract, and forms a contract with Buyer, by doing any one of the following: (i) acknowledging its acceptance of the Purchase Order in writing; (ii) not rejecting the Purchase Order in writing within five (5) days following Seller’s receipt of the Purchase Order; (iii) commencing any work under this Contract (including, without limitation, shipping the Goods); or (iv) engaging in any other conduct which recognizes the existence of a contract with Buyer with respect to the subject matter of this Contract. Seller’s failure to return an acknowledgment copy of a Purchase Order, even if expressly requested by Buyer, will not preclude acceptance in accordance with the foregoing terms.

(b) Seller’s acceptance is expressly limited to the terms of this Contract. Any additional or different terms proposed by Seller (whether in Seller’s quotation, proposal, acknowledgement, invoice or otherwise and whether or not delivered prior to or after the delivery of a Purchase Order) are expressly rejected by Buyer, are not part of this Contract, and are not binding on Buyer without the express prior written acceptance of such terms by Buyer’s authorized representative. Any reference in this Contract to any quotation, proposal, or any other similar document provided by Seller is solely for the purpose of incorporating the description and specifications of the Goods contained in such document, but only to the extent that such description and specifications do not conflict with the description and specifications contained in this Contract. No officer, employee or other representative of Buyer is authorized to make any oral contract of commitment for the purchase of Goods or to modify or change these Terms and Conditions or any other term of this Contract unless such modification or change is acknowledged in a signed writing by Buyer’s authorized representative. The parties have agreed, and it is their intent, that the “battle of the forms” described in Section 2-207 of the Uniform Commercial Code will not apply to this Contract or to any invoice or acceptance form of Seller relating to this Contract.

(c) If there is a conflict in any of the documents making up this Contract, the documents will prevail over each other in the following order of precedence: (i) any document specifically agreed to in writing and signed by the parties; (ii) the terms of any Purchase Order (excluding these Terms and Conditions); (iii) these Terms and Conditions; and (iv) any other requirements or documents that make up this Contract.

3. Quantity; Delivery; Transfer of Title.

(a) Unless the Purchase Order (or a separate written agreement executed by Buyer’s authorized representative) requires Seller to manufacture, ship, and/or provide Buyer’s requirements for the Goods, this Contract is a fixed quantity contract under which Buyer is only obligated to purchase the quantity of Goods specified in the applicable Purchase Order. Any forecasts, commitments, projections, representation about quantities to be purchased or other estimates provided to Seller are for planning purposes only and shall not be binding upon Buyer, and Buyer shall not be liable for any amounts incurred by Seller in reliance on such estimates. Buyer may change the timing of scheduled shipments or direct temporary suspension of scheduled shipments without entitling Seller to a price adjustment or other compensation.

(b) Time of delivery and quantity are of the essence. Deliveries must be made in the quantities and at the times specified on the Purchase Order or, if no quantity is specified, in the quantity specified by Buyer from time to time. Seller will promptly furnish all properly completed documents and other information required to satisfy all customs, tariffs or other applicable governmental regulations including, but not limited to, customs documentation and certificates of origin, and any other document required by applicable Laws (as defined below). Should Seller experience or anticipate any delay in performing this Contract, whether or not such delay is excusable under any provision hereof, Seller shall immediately notify Buyer of such delay, its expected duration and the reasons thereof. Neither such notification, nor an acknowledgment by Buyer, shall constitute a waiver of any Purchase Order’s delivery schedule. Without limiting any rights of Buyer under this Contract, Seller will be liable for all damages, costs, and expenses incurred by Buyer for Seller’s failure to comply with Buyer’s delivery requirements (including, without limitation, an expedited or premium shipment or cover damages).

(c) Unless otherwise specified on the Purchase Order or agreed to in writing by Buyer, Seller must deliver the Goods DDP (Incoterms 2020). Title and risk of loss to the Goods passes to Buyer upon Buyer’s (or Buyer’s customer’s) receipt of the Goods at the time and location(s) specified in the Purchase Order.

4. Pre-Delivery Testing; Calibration Requirements.

(a) Prior to shipment of the Goods to Buyer, Seller must perform a final inspection as necessary to confirm that the Goods conform to the applicable Purchase Order requirements. This final inspection requirement may be met by documented inspections made by Seller during the production of the Goods. Seller must provide a Certificate of Conformance with each shipment which certifies that the subject Goods conform to all of Buyer’s requirements.

(b) Seller must implement and maintain a system for control and use of its inspection and/or processing equipment used in testing the Goods in accordance with MIL-STD-45662. All such equipment must be calibrated against the applicable standards set by the National Institute of Standards and Technology (NIST).

5. Packing; Marking; Shipping. Seller must (a) properly mark, pack, and ship all Goods in accordance with the requirements of Buyer, Buyer’s customers, the involved carriers, and any applicable Law; (b) label and/or tag each package according to Buyer instructions or, if no instructions are provided, in a manner to best protect the Goods from damage in transit, and otherwise in accordance with the prevailing standards of the industry; (c) provide packing slips with each shipment showing the Purchase Order number, Seller’s name and number, net weight, gross weight, the number of containers, and any other information reasonably requested by Buyer; and (d) promptly forward to Buyer the original bill of lading or other shipment receipts for each shipment that are sufficient to enable Buyer to easily identify the Goods purchased. Markings must be in English unless the Purchase Order specifies otherwise. Prior to shipment of the Goods, Seller must provide Buyer sufficient advance warning and notice in writing (including appropriate labels on the Goods, containers and packaging) of any hazardous, dangerous, or restricted material which is an ingredient or a part of any of the Goods, together with any special handling instructions as may be necessary to advise carriers, Buyer’s customer, Buyer and their respective employees of how to exercise the measure of care and precaution which will best prevent bodily injury or property damage in the handling, transportation, processing, use, or disposal of the Goods, containers, and related packaging shipped to Buyer. Unless otherwise stated in a Purchase Order, Seller shall bear all costs and expenses of marking, packing, and shipping the Goods. Seller shall reimburse Buyer for any liabilities, expenses, and costs incurred as a result of improper packing, marking, routing, shipping or any other noncompliance with the requirements of this Section.

6. Post-Delivery Inspection; Nonconforming Goods.

(a) All Goods are subject to Buyer’s inspection and approval at the destination; provided, however, Seller agrees that Buyer may not perform inspections of incoming Goods and waives any right to require Buyer to conduct such inspections. Buyer’s inspection, testing or failure to inspect or test the Goods does not constitute acceptance of the Goods, effect any right of Buyer, or relieve Seller of any of its responsibilities or warranties including Seller’s obligation of testing, inspection, and quality control.

(b) Buyer may, at its option, reject any Goods that fail to conform strictly to the requirements of this Contract. If Buyer rejects any Goods, Buyer may elect to, without any liability to Seller and at Seller’s cost and expense, (i) require Seller to repair or replace the Goods; (ii) purchase similar Goods from another source and reduce the quantities of the Goods under the Purchase Order (and any corresponding payment); and/or (iii) exercise any other right provided to Buyer in this Contract or available at Law. Unless otherwise agreed by the parties in writing, Seller agrees that Seller will not charge Buyer, and Buyer has no obligation to pay Seller, to make repairs to any nonconforming Goods. Nonconforming Goods shall not be replaced without Buyer’s written permission and will be held by Buyer for disposal in accordance with Seller’s instructions at Seller’s risk. Seller’s failure to provide written instructions within ten (10) days, or such shorter period as may be commercially reasonable under the circumstances, after notice of nonconformity, shall entitle Buyer, at Buyer’s option, to charge Seller for storage and handling, or to dispose of the Goods, without liability to Seller.

7. Quality. Seller must meet or exceed all quality requirements of Buyer and any specified customer requirements. Seller acknowledges it has analyzed and reviewed Buyer’s or Buyer’s customer’s specifications for the Goods and that Buyer’s specifications are sufficient and adequate to manufacture the Goods in compliance with this Contract. If a quality standard is not provided in this Contract or otherwise provided to Seller, Seller must manufacture the Goods to the best available industry standard for quality. In addition, Seller must comply with all quality assurance procedures specified by Buyer. Without limiting the generality of the foregoing, Seller must implement and maintain a system for Statistical Process Control (SPC), which is subject to Buyer’s quality team’s prior review and approval. All control plans, control charts, capability studies and any corrective actions taken by Seller in process regarding the Goods must be provided to Buyer with each applicable shipment.

8. Price and Payment.

(a) Price. Unless otherwise provided in the Purchase Order (or otherwise in this Contract), the prices for the Goods as set forth in the Purchase Order (i) are fixed; (ii) are binding on Seller for no less than twelve (12) months; (iii) constitute the total prices for the delivery, manufacture, processing, testing, weighing, inspecting, marking, storing, tagging, and/or labeling of the Goods; (iv) are not subject to increase for any reason including, without limitation, changes in market conditions, increases in the cost of material, labor or overhead costs; and (v) include, and Seller is solely responsible for, all costs and expenses relating to packaging, crating, boxing, transport, loading and unloading, customs, federal, state, provincial and local taxes (including sales, use, value-added and excise taxes), tariffs and duties, insurance and any similar fiscal contribution related to the Goods. Seller’s shipment of the Goods is Seller’s representation and warranty that the price on the Purchase Order is the total price to be charged to Buyer. In addition, Seller’s submission of an invoice constitutes a certification that the quantities and amounts of the delivered Goods contained on such invoice are true and accurate and that such Goods have been delivered in accordance with the terms of the Purchase Order.

(b) Payment. Unless otherwise agreed in writing by Buyer or set forth in a Purchase Order, Seller’s invoice will be due and payable sixty (60) days following the date that is the later of (i) Buyer’s receipt of a complete and verifiable invoice, or (ii) Buyer’s acceptance of the Goods. Payment is deemed to be made on the date Buyer’s check is mailed or funds transfer is initiated. If a payment date falls on a non-business day, the payment due date will be the next business day. Payment of an invoice shall not constitute acceptance of Goods or otherwise be deemed a waiver of any breach of this Contract by Seller (including a breach of any warranty) or any amount otherwise due to Buyer, and does not limit or impair Buyer’s right to assert any legal or equitable remedy. Regardless of the items listed on Seller’s invoice, Buyer will only be obligated to pay for the Goods listed in a Purchase Order and in the quantity required by Buyer. Buyer may withhold payment pending receipt of evidence, in such form and detail as Buyer may direct, of the absence of any liens, claims, encumbrances, or other rights on the Goods.

(c) Setoff and/or Recoupment. Notwithstanding anything to the contrary in a Purchase Order, all amounts due from Buyer or its affiliates, subsidiaries or divisions (“Buyer Group”) to Seller or its parent company or their affiliates, subsidiaries or divisions (“Seller Group”) will be considered net of indebtedness of any member of Seller Group to any member of Buyer Group. In addition to any right of setoff, deduction or recoupment provided or allowed by Law, any member of Buyer Group may, without notice to Seller or any other member of Seller Group, set off against, and deduct and/or recoup from (i) any amounts due or to become due from any member of the Buyer Group to any member of the Seller Group, or (ii) any amounts due or to become due from any member of the Seller Group to any member of the Buyer Group, including for damages resulting from breaches by Seller of its obligations under this Contract or any other contract between the parties.

9. Audit. Upon request by Buyer, Seller will provide Buyer or its authorized representatives copies of all of Seller’s books, records and accounts, in any way related to (a) Seller’s performance under this Contract (including Sellers’ processes and procedures), (b) the Goods, or (c) any payment or other transaction occurring in connection with this Contract, in each case, for the purpose of auditing Seller’s compliance with the terms of this Contract, including Seller’s charges for the Goods. In addition, Seller will permit Buyer and its authorized representatives with access during regular business hours, or outside of regular business hours upon reasonable request, to Seller’s management personnel and facilities to monitor, inspect, and audit Seller’s operational performance of this Contract including, without limitation, the quality of the Goods and Seller’s manufacturing processes. Seller agrees to cooperate fully with Buyer in connection with any audit or inspection.

10. Changes. Seller will promptly make any changes Buyer directs in writing with respect to the Goods or the general scope of this Contract, which may include, as applicable, changes in the design, drawings, specifications, processing, inspection, testing, quality control, methods of packing and shipping or the date or place of delivery. If any such change affects the cost or time of performance, Seller must provide Buyer a written notice of a claim for adjustment, along with all sufficient information and documentation in such form and detail as Buyer may direct, regarding the effect on Seller’s costs or time of performance resulting from such change within five (5) days after Buyer’s notice to Seller of such change. If necessary under the circumstances, the parties will agree on an equitable adjustment (up or down) to the price or delivery terms of this Contract. Seller may not make any changes with respect to the Goods or scope of this Contract without Buyer’s prior written consent, which may be given or withheld in Buyer’s sole discretion; provided, however, if Seller learns of a possible change to the Goods that may reduce the costs to produce the Goods, improve the quality of the Goods, or otherwise may be beneficial to Buyer, Seller will promptly inform Buyer of the possible change in writing.

11. Subcontracting. Seller will not subcontract any of its obligations under this Contract without the prior written consent of Buyer, which may be withheld in Buyer’s sole discretion. Any such consent of Buyer will not release Seller from, or limit any of, Seller’s obligations, responsibilities, or warranties under this Contract. If Buyer approves a subcontractor, Seller warrants and guarantees that such subcontractor’s performance will satisfy all requirements applicable to Seller under this Contract. Seller is solely responsible for all means, methods, techniques, sequences and procedures and for coordinating all portions of the work necessary to complete this Contract. Notwithstanding Buyer’s approval of a subcontractor, Seller remains fully responsible and liable to Buyer for the acts of its subcontractors and performance of all Seller’s duties and obligations under this Contract. The direction and supervision of Seller’s and any permitted subcontractor employees rest exclusively with Seller or such subcontractor.

12. Buyer’s Property. All supplies, materials, prototype and production tools, jigs, dies, gauges, fixtures, molds, patterns, equipment, related software and other items (together with any accessions, appurtenances, modifications, repairs, refurbishments and replacements thereof) furnished by Buyer, either directly or indirectly, to Seller to perform this Contract, or for which Seller has been paid by Buyer (“Buyer’s Property”), will be and remain the property of Buyer, and all right, title and interest in Buyer’s Property will remain with Buyer, subject only to the limited right of possession granted to Seller under this Section. Buyer will, at any time, have the right to immediate possession of Buyer’s Property, on Buyer’s demand. If title in any Buyer’s Property has not otherwise passed to Buyer, title will pass to Buyer immediately upon the date Buyer first makes any payment to Seller relating to such property. Seller will bear all risk of loss of and damage to Buyer’s Property. Buyer’s Property will at all times be properly housed and maintained by Seller, at its expense, will not be used by Seller for any purpose other than the performance of this Contract; will be deemed to be personalty; will be conspicuously marked by Seller as the property of Buyer; will not be commingled with the property of Seller or with that of a third person; and will not be moved from Seller’s premises without Buyer’s prior written approval. Buyer and its designees will have the right to enter Seller’s premises at all reasonable times to inspect Buyer’s Property and Seller’s records with respect thereto. Upon the request of Buyer, Buyer’s Property will be immediately released to Buyer or delivered to Buyer by Seller, either (a) FCA transport equipment at Seller’s plant (Incoterms 2020), properly packed and marked in accordance with the requirements of the carrier selected by Buyer to transport such property, or (b) to any location designated by Buyer, in which event Buyer will pay to Seller the reasonable costs of delivering such property to such location. To the fullest extent permitted by Law, Seller waives any liens, claims, encumbrances, interests or other rights that Seller might otherwise have or assert on or with respect to any of Buyer’s Property for work performed on such property or otherwise. To the extent any Intellectual Property (as defined below) rights owned by or licensed to Seller is embodied in, or is otherwise necessary for the intended use of, any Buyer’s Property, Seller hereby grants to Buyer a fully paid, irrevocable, non-exclusive, worldwide, perpetual to the maximum extent permitted by law, royalty-free license, with the right to grant sublicenses as necessary for any use of Buyer’s Property, to use such Intellectual Property rights.

13. Proprietary Rights.

(a) License. To the extent the Goods incorporate any copyrights, industrial design rights, trademarks, trade secrets, patents or other intellectual property rights (collectively, “Intellectual Property”) that is owned, invented, authored, licensed to, or developed by Seller and necessary for Buyer to incorporate the Goods into the products Buyer sells to its customers, Seller hereby grants Buyer and its customers a nonexclusive, royalty-free, irrevocable, worldwide right and license, with the right to grant sublicenses, to use such Intellectual Property, and to make, have made, use, sell, offer for sale, or import into the United States (and all other countries in which Seller may have rights in such Intellectual Property) any processes, services, suppliers, or inventions incorporating or embodying the Goods, for the sole purpose of fulfilling Buyer’s requirements to its customers or in furtherance of Buyer’s responsibilities under this Contract or any contract that relates to the Goods furnished under this Contract. The foregoing license does not permit Buyer to use Seller’s Intellectual Property on a stand-alone basis and does not grant Buyer the right to separately exploit Seller’s Intellectual Property.

(b) Confidentiality. All Intellectual Property and all other confidential and proprietary information (including any plans or specifications for the Goods) provided by Buyer to Seller under this Contract including, without limitation, any samples, drawings, know-how, processes, and other technical, business, or financial information, whether provided orally, in writing, by demonstration, or otherwise (collectively, “Confidential Information”): (i) is owned by Buyer; (ii) must be kept confidential by Seller and may not be disclosed by Seller to third parties without the express prior written consent of Buyer; provided, however, Seller may disclose Buyer’s Confidential Information to Seller’s employees, attorneys, agents, and subcontractors who have a “need to know” the Confidential Information for purposes of carrying out Seller’s obligations under this Contract as long as such individual and entities are bound by confidentiality terms no less restrictive than those contained in this Contract; and (iii) may not be used by Seller other than is required for Seller to perform its obligations under this Contract. The confidentiality restrictions in this Section do not apply to information which is (A) already known by Seller prior to the date of this Contract and without breach of the confidentiality restriction that Seller was subject; (B) acquired by Seller from a third party which was not, to the knowledge of Seller, under an obligation to Buyer not to disclose such information; (C) which is or becomes publicly available through no breach by Seller of confidentiality restrictions to which Seller is or was subject; or (D) independently developed by Seller without the use of Buyer’s Confidential Information. Notwithstanding the above, Seller may disclose Buyer’s Confidential Information if required by a judicial or government request, requirement, or order as long as (y) to the extent not prohibited by law, Seller gives Buyer written notice prior to such disclosure and (z) Seller only discloses that portion of Confidential Information required to comply with such requirement, request, or order. Upon the termination or expiration of this Contract or upon Buyer’s request, Seller agrees to return, or destroy (to the extent feasible), Buyer’s Confidential Information in Seller’s possession. In the event Buyer and Seller are parties to a separate confidentiality agreement, these terms supplement but do not modify, supersede or replace such confidentiality agreement.

14. Representations and Warranties.

(a) Seller’s Warranties. Seller warrants to Buyer, its customers, and their end-users that all Goods will: (i) conform, in all respects, to the specifications, standards, drawings, samples, descriptions, quality requirements (including any fit, form and function requirements), furnished, specified or approved by Buyer for the Goods; (ii) be useable and merchantable; (iii) be of good quality and workmanship; (iv) be free from defects, latent or otherwise, in design (unless Buyer’s provided the entire design), materials and workmanship; (v) comply with all applicable Laws and industry standards including, without limitation, the Laws where the Goods are manufactured and the Laws where the Goods (or the goods incorporating the Goods) will be sold and used, will be manufactured, processed, tested, certified, weighed, packaged, wrapped, inspected, marked, sold, stored, tagged, shipped, labeled, and registered accurately in compliance with, all Laws; (vi) be new and conveyed by Seller to Buyer with good title, free and clear of all liens, claims, encumbrances, interests or other rights of Seller or third parties; and (vii) not, either upon delivery or in the future, infringe upon, violate or misappropriate any present or future patent, trademark, service mark, trade secret, copyright, proprietary or other intellectual property right of any third party. Seller acknowledges that Seller knows of Buyer’s intended use of the Goods and expressly warrants that the Goods are fit and sufficient for the particular purposes (A) intended by Buyer and Buyer’s customer and (B) applicable to the design, function and use of the Goods. To the extent Seller is providing a service to Buyer, Seller warrants such service will be performed in a competent and workmanlike manner.

(b) Incorporation of other Warranties. All warranties are intended to provide Buyer with protection from all warranty claims brought against Buyer by its customers. Seller agrees the warranties provided by Seller to Buyer under these Terms and Conditions (i) are in addition to all other warranties, express or implied, provided by Law; (ii) extend to the Goods’ future performance; (iii) survive Seller’s delivery of the Goods and Buyer’s receipt, inspection, testing, acceptance, use of the Goods and Buyer’s payment for the Goods; (iv) may not be limited or disclaimed by Seller; and (v) do not commence until the Goods are received by Buyer’s ultimate end-user (which may be Buyer’s customer or the end users of those customers). Buyer’s approval of Seller’s designs, materials, processes, drawings, specifications or similar requirements will not be construed to relieve Seller of any warranties. The warranty period for Seller’s warranties under these Terms and Conditions are the longer (A) the period provided by Law or (B) the warranty period required by, or otherwise given by Buyer to, Buyer’s customers for the products the Goods are incorporated into. Any applicable statute of limitations on Buyer’s claims for breach of warranty will commence no earlier than the date Buyer discovers the breach of the applicable warranty.

(c) Buyer’s Disclaimer. SELLER ACKNOWLEDGES THAT ANY SPECIFICATIONS, STANDARDS, DRAWINGS, SAMPLES, DESCRIPTIONS, QUALITY REQUIREMENTS, OR STATEMENTS OF WORK PROVIDED BY BUYER RELATING TO THE GOODS, AND ANY INTELLECTUAL PROPERTY ASSOCIATED THEREWITH, IS PROVIDED BY BUYER TO SELLER ON AN “AS IS, WHERE IS” BASIS, AND THAT BUYER MAKES NO REPRESENTATIONS, WARRANTIES OR COVENANTS WHATSOEVER WITH RESPECT THERETO, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE OR ANY OTHER WARRANTIES THAT MAY BE IMPLIED UNDER APPLICABLE LAW, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.

15. Information Security. Seller represents that it currently follows industry best practices to prevent any compromise of its information systems, computer networks, or data files (“Systems”) by unauthorized users, viruses, or malicious computer programs which could in turn be propagated via computer networks, email, magnetic media or other means to Buyer. Seller shall immediately notify Buyer if the security of Seller’s Systems is breached or compromised in any way. Seller shall apply appropriate internal information security practices, including, but not limited to, using appropriate firewall and antivirus software; maintaining countermeasures, operating systems, and other applications with up to date virus definitions and security patches; installing and operating security mechanisms in the manner in which they were intended and sufficient to ensure the Buyer will not be impacted nor its operations disrupted; and permitting only authorized users access to computer systems, and applications. Seller shall: (a) use up-to-date antivirus tools to remove known viruses and malware from any email message or data transmitted to Buyer; (b) prevent the transmission of attacks on Buyer via the network connections between Buyer and the Seller; and (c) prevent unauthorized access to Buyer systems via the Seller’s networks and access codes. In accordance with all applicable U.S. and international privacy Laws, Seller shall safeguard confidential protected individually identifiable personal information (health, financial, identity) which is received, transmitted, managed, processed, etc. and require its subcontractors or agents to meet the above security precautions.

16. Compliance with Laws.

(a) General. Seller will perform all of its obligations under this Contract in accordance with, and ensure the Goods and any related packaging conform fully to, any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, other requirement or rule of law of any federal, state or local government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any arbitrator, court or tribunal of competent jurisdiction (collectively, “Laws”) including, without limitation, all Laws relating to environmental matters, data protection and privacy, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health/safety and motor vehicle safety. Seller further represents and warrants that neither it nor any of its subcontractors will utilize child, slave, prisoner or any other form of forced or involuntary labor, or engage in abusive employment or corrupt business practices, in the supply of the Goods under this Contract. Upon Buyer’s request, and without limiting Seller’s obligations hereunder, Seller will provide Buyer with: (i) written certification of Seller’s compliance with the foregoing; (ii) written certification of the origin of any ingredients or materials in the Goods; and (iii) any additional information regarding the Goods requested by Buyer such that Buyer may comply in a timely manner with its obligations under applicable Law. Seller shall indemnify and hold Buyer harmless from and against any liability claims, demands or expenses (including, without limitation, attorneys’ or other professional fees) arising out of or in connection with Seller’s noncompliance with the foregoing.

 (b) Conflict Materials. Seller will not sell any Goods to Buyer that contains any amount of a conflict mineral (as defined in Section 1502 of the Dodd-Frank Act, 12 U.S.C. 5301) originating from a Covered Country (as defined in 17 CFR 229.104) unless Seller has obtained Buyer’s prior written consent. Seller shall obtain such consent no less than thirty (30) days before the first delivery of a Good containing a conflict mineral originating from a Covered Country.

(c) Health, Safety, and Environmental Regulations. Seller warrants that the Goods will conform to the requirements of the Occupational Safety and Health Act of 1970 as amended and all regulations and standards formulated thereunder. Seller further warrants that the Goods will be in compliance with applicable product safety and environmental regulations. Seller warrants that each chemical substance contained in the Goods is on the list of chemical substances compiled and published by the Administrator of the Environmental Protection Agency in conjunction with the Toxic Substances Control Act, as amended.

(d) Materials Declaration Requirements. All Goods are subject to disclosures of hazardous substances contained or used in any Good, component, or material part thereof, such as those in Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (as amended from time to time) (“RoHS Directive”), any European Union Member State implementations thereof, and any other similar environmental or hazardous materials applicable Laws (“Materials Declaration Requirements”). Upon Buyer’s request, Seller shall provide and shall obtain from its suppliers and affiliates, when necessary, documentation certifying compliance with Materials Declaration Requirements with respect to the Goods.

(e) European Regulations. Seller represents and warrants that all chemical substances contained in the Goods supplied under this Agreement (including substances which Seller does not make or import) comply in all respects with the provisions (as amended) of the European Regulation (EC) n° 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorization and Restriction of Chemicals entered into force on June 1st 2007 (the “REACH Regulation”), including, if and when applicable, being submitted for registration to the European Chemicals Agency according to statutory registration deadlines.

17. Force Majeure. Any delay or failure of either party to perform its obligations under this Contract will be excused to the extent that the delay or failure was caused by an event beyond such party’s control, without such party’s fault or negligence and that by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, acts or God, acts of a governmental entity, embargoes, explosions, riots, wars, acts of terrorism, fires, floods, epidemics, quarantine, restrictions, or freight embargoes) (each, a “Force Majeure”). Notwithstanding anything in this Section to the contrary, (a) labor problems of Seller, its subcontractors and/or its suppliers, including, without limitation, lockouts, strikes and slowdowns, (b) the inability of Seller, its subcontractors and/or its suppliers to obtain power, materials, labor, equipment or transportation, (c) Seller’s or its subcontractor’s financial inability to perform, (d) changes in the cost or availability of materials, components, services, or market conditions, and (e) Seller actions or contract disputes with subcontractors are not, in each case, a Force Majeure and will not, in each case, excuse performance by Seller under this Contract or otherwise excuse performance by Seller on theories of Force Majeure, commercial impracticability, or otherwise, and Seller expressly assumes these risks. Seller must give Buyer prompt notice of any event or circumstance that is reasonably likely to result in a Force Majeure and the anticipated duration of such Force Majeure. During any Force Majeure, Buyer may purchase the Goods from other sources and reduce the quantities (and any corresponding payment) set forth in this Contract without liability to Seller. If the delay lasts more than thirty (30) days or Seller does not provide adequate assurance (within a commercially reasonable time not to exceed ten (10) days from the date of the request) that the delay will cease within thirty (30) days, Buyer may immediately cancel all or any portion of this Contract without liability to Seller of any kind or nature.

18. Event of Default. The following occurrences shall constitute events of default by Seller (each, an “Event of Default”): (a) Seller repudiates, breaches, or threatens to repudiate or breach any of the terms of this Contract or any of its obligations including, without limitation, Seller’s warranties; (b) Seller fails to timely perform any of its obligations under this Contract or fails to provide Buyer with adequate and reasonable assurance of Seller’s ability to timely perform any of Seller’s obligations under this Contract including Seller’s ability to deliver Goods conforming to the requirements of this Contract; (c) Seller conditions the continued full performance of its obligations under this Contract on Buyer’s agreement to modify the terms of this Contract; or (d) Seller becomes insolvent or there is filing of a voluntary or involuntary petition in bankruptcy by or against Seller, or there is an appointment of a receiver or trustee for Seller, or there is an execution of an assignment for the benefit of Seller’s creditors, provided that such petition, appointment or assignment is not vacated or nullified within thirty (30) days of such event. All Events of Default will be deemed to occur on the date the specific event occurs and any written notice from Buyer describing an Event of Default is only provided to Seller as a courtesy and will not be deemed to start any cure period unless expressly set forth in the written notice from Buyer.

19. Termination. In addition to any other rights or remedies of Buyer under this Contract or applicable Law, Buyer may terminate this Contract or any of its obligations under this Contract, in whole or in part (a) upon an Event of Default (a “Termination for Cause”) or (b) at any time for any reason upon at-least five (5) days prior written notice to Seller (a “Termination for Convenience”). Buyer shall have the right to a Termination for Cause or Termination for Convenience notwithstanding the existence of a Force Majeure event. The effective date of any termination will be on the date of Buyer’s written notice of termination or such later date as set forth in the notice. Buyer shall have no obligation to Seller, Seller’s subcontractors, Seller’s suppliers, or any other entity of any kind upon a Termination for Cause. Upon a Termination for Convenience, Buyer’s sole obligation, and Seller’s sole and exclusive remedy, is to reimburse Seller for Seller’s reasonable and documented costs actually incurred by Seller as of the termination date; provided, however, Buyer’s liability to Seller for a Termination for Convenience will not exceed the price payable for finished Goods that would have been delivered under the applicable Purchase Order. Notwithstanding anything contained herein, and in recognition of Buyer’s commitments to its customers are made in reliance of Seller’s commitments under this Contract, Seller has no right to terminate this Contract.

20. Indemnification. In addition to any other indemnification set forth in this Contract, Seller will indemnify, defend and hold harmless Buyer, its present and future directors, officers, shareholders, members, employees, attorneys, agents, representatives, parents, affiliates, subsidiaries, customers, and their users from and against any and all claims, costs, demands, losses, indirect and direct damages (including lost profits, incidental, consequential, and punitive damages), liabilities, causes of action, judgments, settlements, awards, fines, penalties, assessments, and expenses (including costs of defense, mediation, settlement and reasonable attorneys’ and other professionals’ fees), however described or denominated, brought by any third party (including, without limitation, Seller’s employees, subcontractors, laborers, agents, and assigns) arising out of, incidental to, or resulting from Seller’s performance of this Contract including (a) any negligent or willful act or omission of Seller or its respective subcontractors, agents, employees or other representatives; (b) Seller’s, its subcontractors’, agents’, employees’ or representatives’ commission of any Event of Default or other breach of any provision of this Contract (including, without limitation, Seller’s warranties); or 

(c) Seller’s, its subcontractors’, agents’, employees’ or representatives’ violation of any Law. Notwithstanding anything contained herein, Buyer shall have the right, at Seller’s expense, to select and retain counsel of its choosing in defense of the foregoing and to enter in any settlement or compromise related to the foregoing.

21. Remedies. The rights and remedies reserved to Buyer in this Contract shall be cumulative, and in addition to all other or further remedies provided at Law. Without limiting the foregoing, should any Goods fail to conform to the warranties set forth above or are alleged to or are determined to cause injury to third parties, Buyer shall notify Seller and Seller shall, if requested by Buyer, reimburse Buyer for any damages caused by such nonconforming Goods, including, but not limited to, costs (including all reasonable attorney’s or other professional fees), expenses and losses incurred by Buyer in (a) inspecting, sorting, containing, repairing or replacing such nonconforming Goods; or (b) claims or litigation arising from personal injury (including death) or property damage caused by such nonconforming Goods. In addition, Seller shall reimburse Buyer for all liability, claims, demands or expenses (including reasonable attorney’s or other professional fees) arising from or relating to Seller’s breach or anticipatory repudiation of this Contract. Without limiting any rights or remedies of Buyer under this Contract or at Law, in the event that Seller fails or refuses to deliver Goods, or otherwise repudiates any provision of this Contract, Seller agrees that Buyer may seek specific performance of Seller’s obligations under this Contract (including permanent or temporary injunctive relief) without the need to post a bond or any other type of security.

22. General Terms.

(a) Notices. All notices, claims and other communications to Buyer required or permitted under this Contract

will be made in writing and will be effective only upon receipt by Buyer.

(b) Severability; Assignment; Waiver; Third Party Beneficiary. If any clause in this Contract is determined by a court of competent jurisdiction to be invalid, the invalidity of such clause shall not affect the validity of the remainder of this Contract. Seller may not assign, in whole or in part, this Contract (by operation of law or otherwise) or assign or delegate it rights or obligations under this Contract (by operation of law or otherwise) without Buyer’s prior written consent. Any purported assignment or delegation in violation of this Section will be null and void and of no force or effect. The failure of either party at any time to require performance by the other party of any provision of this Contract shall in no way affect the right to require performance at any time thereafter, nor shall the waiver of either party of a breach of any provision of this Contract constitute a waiver of any succeeding breach of the same or any other provision. Except as otherwise provided in this Contract, Seller acknowledges and agrees that the rights and interests of the parties under this Contract are intended to solely benefit Buyer and Seller.

(c) Governing Law; Venue. This Contract, and all related documents and matters arising out of or relating to this Contract, are governed by, and will be construed in accordance with, the Laws of the State of Michigan, without regard to any conflict of law provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Contract. Buyer and Seller each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with this Contract will lie in the United States District Court for the Eastern District of Michigan, the courts in the State of Michigan sitting in Macomb County, and any appellate court with jurisdiction over such courts. Each party hereby irrevocably and unconditionally submits to the sole and exclusive personal jurisdiction of such courts and Seller agrees not to bring any action, litigation, or proceeding in any other court.

(d) Survival. Sections 1-2, 3-7, 9-12, and 17-20 (together with any other section or provision that by its terms should survive and remain valid) of these Terms and Conditions shall survive and remain valid after the expiration or termination of this Contract.

 (e) LIMITATION OF LIABILITY. BUYER’S OBLIGATIONS TO SELLER ARE EXPRESSLY LIMITED TO PROCUREMENT OF THE GOODS PURSUANT TO THE TERMS OF THIS CONTRACT AND BUYER’S LIABILITY TO SELLER WILL NOT EXCEED THE ACTUAL COST OF THIS CONTRACT. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR ANY OTHER THIRD PARTY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT THIS CONTRACT OR OTHERWISE RELATING TO THE GOODS OR SERVICES, INCLUDING, WITHOUT LIMITATION, PERSONAL INJURY OR PROPERTY DAMAGES, ATTORNEY’S FEES OR ANY OTHER RELATED COSTS OR EXPENSES, ANY DIRECT OR INDIRECT LOSS OF PROFITS, REVENUE, OR BUSINESS OPPORTUNITY, DOWNTIME, DELAY DAMAGES OR ANY OTHER ECONOMIC LOSS, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE BY BUYER OR BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.

(f) Entire Agreement. This Contract, including any attachments, exhibits or supplements attached hereto or incorporated herein by specific reference, and any separate confidentiality agreement which may have been entered into between Buyer and Seller, constitute the entire agreement between Seller and Buyer with respect to the subject matter of this Contract and supersedes all prior or contemporaneous oral or written discussions, understandings, representations and agreements. This Contract is being entered into among competent persons who are experienced in business. Therefore, no provision in this Contract may be construed against any party as the drafter. This Contract may only be modified in writing signed by Buyer’s authorized representative and this Contract may not be modified by course of dealing, course of performance, or any oral communication between Buyer and Seller.