General Terms and Conditions of Purchase

1. General

1.1 These terms, as amended, are the basis for all present and future business transactions for supplies and services with companies, public law legal entities and public law special funds. Any different terms from suppliers that we do not acknowledge in writing are not binding on us, even if we do not contradict them explicitly or accept performance of the contract without raising a specific objection.

1.2 Verbal agreements, assurances and guarantees given by our employees only come into force following our written confirmation. The aforementioned provisions do not cover individual agreements within the meaning of § 305 b German Civil Code (BGB).

2. Orders

  We will only be bound by our orders if we receive a written statement of acceptance within 14 days of the date of the order.

3. Prices, terms

  The prices stated in our orders are fixed prices. They apply free of freight and packing charges and fees to the address stated. We reserve the right to return packing materials and are entitled to reduce the invoice amount by the costs thus incurred

4. Delivery

4.1 The supplier is obliged to deliver the goods without any material defects or defects of title. The supplier guarantees in particular that all the obligations imposed by Regulation EC No. 1907/2006 (REACH) have been met.

4.2 All deliveries are at the risk of the supplier.

4.3 All delivery/performance deadlines and periods agreed upon are binding. The relevant date is the date when goods/services reach the place named by us.

4.4 The supplier shall inform us in writing immediately of any imminent or existing delay in delivery, the reasons for such delay and the anticipated duration of such delay. Such notice does not affect the fact that delivery has been delayed.

4.5 In the event that the supplier culpably fails to deliver by a defined delivery date, it is agreed that the supplier shall pay us a contractual penalty of 0.2% of the order volume for each working day commenced after the delivery date, but not more than 5% of the order volume.

4.6 Partial deliveries or services must be approved by us in advance.

5. Payments

5.1 Payments will be effected after complete delivery/performance or if agreed or provided by law after acceptance of delivery/performance and receipt of invoice within 14 days less 3% cash discount or within 30 days net.

5.2 No interest may be charged on amounts due.

5.3 Interest on arrears is chargeable at 5% above the base rate. We are in all cases entitled to prove that the supplier’s losses resulting from arrears were less than the amount claimed.

5.4 Our rights to offset and withhold are as specified by law.

6. Complaints, warranty, claims for compensation

6.1 Unless the defects are obvious, inspections of and complaints about items supplied do not have to be made until after the items are removed from our store. They must be made at the latest before the warranty period expires, however.

6.2 In the case of material defects we may at our discretion enforce our statutory rights. A remedy by a supplier will be regarded as having failed as soon as the first attempt has proved unsuccessful. We are entitled to revoke the contract even if the supplier’s breach of obligation was insignificant.

6.3 Expenses necessary for the purpose of remedy are borne by the supplier.

6.4 Claims based on material defects will expire by limitation as per statutory provisions two years after the removal of the goods in accordance with 6.1 or the acceptance of performance where acceptance is specified by law or has been agreed, and after five years in the case of good/services used for construction purposes, subject to a maximum of 10 years after delivery of goods or acceptance of services.

6.5 Claims for damages are otherwise subject to statutory rules.

6.6 The supplier shall, upon first demand, indemnify us against any and all liability or claims of third parties arising from the manufacture, delivery, storage, or use of delivered goods. The above indemnification shall not apply if the claim is based on an intentional or grossly negligent breach of duties on our part.

6.7 The supplier shall, at all times during the term of this agreement, maintain product liability insurance with an adequate minimum coverage amount of EUR 10,000,000 for each single occurrence of personal and property damage. Evidence of insurance coverage must be provided to us on demand.

7. Retention of title

7.1 We will accept retention of title by the supplier in the usual form, subject to a requirement that title to the goods shall pass to us once they have been paid for.

7.2 We are under no obligation to defend supplier rights based on retention of title of whatever kind against third parties.

7.3 Where payment is made by cheque/bill of exchange it is hereby agreed that the supplier’s retention of title remains in force until we redeem the bill.

8. Prohibition of assignment

The supplier may not assign claims arising out of transactions with us to third parties, unless these assignments are made in connection with extended retentions of title and we should have anticipated such an agreement being made.

9. Prohibition of advertising

This order may not be made known to third parties or used for advertising purposes.

10. Applicable law, place of jurisdiction

10.1 All transactions are subject to German law, including foreign transactions. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.

10.2 If the conditions required by § 38 of the German Code of Civil Procedure for an agreement on the place of jurisdiction are satisfied, the place of jurisdiction for all claims by the contracting parties is Lübeck, Germany. 

10.3 We may, however, ask that disputes be settled by amicable arbitration.

General Terms and Conditions of Sale

1. General

1.1 These terms, as amended, are the basis for all present and future business transactions for supplies and services with companies, public law legal entities and public law special funds. Any different terms and conditions from customers that we do not acknowledge in writing are not binding on us, even if we do not contradict them explicitly or accept performance of the contract without raising a specific objection.

1.2 Verbal statements given by our employees only come into force following our written confirmation. The aforementioned provisions do not cover individual agreements within the meaning of § 305 b German Civil Code (BGB).

2. Offers, acceptance of orders, prices

2.1 Our offers are always subject to change without notice. Goods are subject to prior sale.

2.2.1 Third parties may not be given access to offers, cost estimates, drawings, brochures or any other documentation. We retain copyright and title to these until an order is placed.

2.2.2 Otherwise, all information regarding the business relation is to be treated confidentially, especially with regard to our know-how.

2.3.1 Qualities, dimensions and weights are in accordance with the DIN/EN standards in force when the contract is concluded. If none are in force, they will be in accordance with commercial practice, in particular the most recent version of the ICC-Incoterms®. They do not represent assurances or guarantees; neither do inspection certificates, claims by manufacturers or marks such as CE and GS.

2.3.2 The dimensions and weights that we determine are definitive and are subject to the usual deviations. “Approx.” [German “Ca.”] in front of indications of volume entitles us to supply 5% more or less.

2.4.1 Amounts supplied will be as specified in our offer/statement of acceptance. Objections to these statements must be communicated to us in writing without delay, no later than one week after receipt, in any case prior to execution of the corresponding order.

2.4.2 Customers are responsible for ensuring that the use of our products is legally and technically permitted, even if we have recommended them accordingly. In case of doubt our technical explanatory leaflets are decisive.

2.5 Prices are net cash ex works / ex store plus freight and the costs of collecting and disposing of packaging, plus value added tax. Unexpected additional expenditure occasioned by the execution of the delivery and for which no surcharges have been agreed shall be borne by the customer, unless we are responsible for them.

3. Performance

3.1.1 We will deliver at the customer’s risk ex works / ex store, depending on the transport route, transport method and carrier chosen by us. The customer must unload goods properly and without delay. Waiting time will be charged to the customer.

3.1.2 Should it, through no fault of ours, become impossible or substantially more difficult to transport goods by the intended route or to the intended destination within the intended time, we are entitled to deliver by a different route or to a different destination at the customer’s expense, if this is reasonable for the customer.

3.2 Insurance against damage or loss in transit will only be taken out at customers’ express request and at their expense. Damage/loss reports must be submitted immediately on the receipt of goods and the nature and scope of damage/loss notified immediately in writing.

3.3 Goods announced as ready for dispatch must be called off immediately. If this is not done we shall be entitled at our discretion either to dispatch them at the expense and risk of the customer or to store them as we see fit and charge for them immediately.

3.4.1 Partial deliveries have to be accepted unless the customer proves that it is unreasonable to expect him to do so. We are entitled to supply more or less to the extent usual in the trade.

3.4.2 When regular deliveries are agreed, the monthly volumes called off from us should be approximately equal.

3.4.3 If the contract volume is exceeded by individual customer call-offs, we are entitled, but not obliged to supply the surplus. We may invoice for the surplus at the prices in force at the time of the call-off or the delivery.

3.5 The performance of the contract and adherence to delivery and performance deadlines are conditional on the punctual and correct delivery of supplies to us by our suppliers, except where failure to deliver or delay in delivery is our fault, the correct and punctual meeting by customers of their obligations to co-operate, in particular by supplying all the information, documentation and approvals necessary for performance, the correct and punctual completion of the work required from the customer or third parties necessary for our performance, in particular including the provision of suitable unloading equipment.

3.6 In all cases of force majeure, including industrial action, we are no longer under an obligation to perform. Otherwise, the provisions of the ICC Force Majeure-Clause 2003 and ICC Hardship-Clause 2003 apply, both published in ICC publication No. 650.

3.7 Delivery dates or times only are binding for us after confirmation in writing. Periods allowed for the delivery of supplies/services are extended by the period for which customers fail to meet their obligations to us and by the duration of such interruptions described in 3.6. The same applies to deadlines for delivery or services.

4. Payment

4.1 Payments are due immediately in euros (EUR) without deduction unless another currency and/or different terms of payment have been agreed. Agreed discount will be allowed when all previous invoices have been settled, except those subject to legitimate objections by the customer. Discount will be calculated on the basis of the net invoice total after the deduction of other allowances, freight etc. All payments become effective when they are credited to our bank account.

4.2 The customer is not entitled to claim any rights of retention or to offset any claims under other transactions, including under the ongoing business relationship. No offsetting by the customer is permitted unless the counterclaim is undisputed.

4.3 The customer is in arrears at the latest 14 days after delivery or if a subsequent payment deadline is missed. In such cases we will charge interest at 8% above the base rate. We reserve the right to enforce a claim for any greater loss.

4.4 If it becomes apparent after the conclusion of the contract that our claim to payment is in jeopardy due to the customer’s inability to pay, we will be entitled to enforce the rights conferred by § 321 German Civil Code with respect to all other outstanding payments arising out of the business relationship with the customer. If the customer does not perform or does not give security within a reasonable time, we will then also be entitled to require the immediate payment of all unexpired claims arising out of the current business relationship.

4.5 In the cases specified in 4.3 and 4.4 we may take back goods subject to retention of title (5.3.1 and 5.3.2), revoke the direct debit authorisation (5.5.1) and require advance payment for any outstanding deliveries.

4.6 The customer may avert the consequences specified in 4.5 by providing security equivalent to our claim to payment in jeopardy.

4.7 Otherwise this does not affect statutory provisions relating to arrears in payment.

5. Retention of title

5.1.1 All goods supplied will remain our property (“retained goods”) until the satisfaction of all of our claims arising out of the business relationship, including in particular claims on balance of current account. This also applies to future and conditional claims, e.g. based on acceptor’s bills, or in the case of cheques/bills until the redemption of the bill by the customer, and also where payments are made on specifically designated claims.

5.1.2 The value of retained goods is the net invoice amount for the goods supplied by us plus a security premium of 50% (22% value deduction, 4% pursuant to § 171 I German Insolvency Regulation, 5% pursuant to § 171 II German Insolvency Regulation and 19% value added tax) which will not be applied to the extent of any opposing third-party rights.

5.1.3 This retained balance will lapse definitively when all claims still outstanding and covered by this retained balance at the time of payment are settled.

5.2 Any processing of retained goods takes place on our behalf as manufacturer as specified in § 950 German Civil Code, without placing us under any obligation. Such processed goods will be regarded as retained goods within the meaning of 5.1.1. If retained goods are processed, combined or mixed by the customer with other goods we will acquire joint ownership of the new item proportional to the ratio of the invoice value of the retained goods to the invoice value of the other goods used. If our title is extinguished by combination or mixing, customers assign to us with immediate effect their title in the new item up to the value of the retained goods and undertake to store them for us free of charge. Our joint ownership rights will be regarded as retained goods within the meaning of 5.1.1.

5.3.1 Customers may only dispose of retained goods in the normal course of business subject to their usual standard terms and conditions and as long as none of the cases specified in 4.3 and 4.4 apply. Such disposal is also conditional on the receivable passing to us in accordance with 5.4.1 to 5.6. Otherwise the customer is not entitled to dispose of retained goods.

5.3.2 Retained goods must be stored separately from other goods and/or marked as our property. We are entitled to take possession of the goods at the customer’s expense and to enter the land or the premises of the customer for this purpose. The customer is obliged to treat the goods supplied with care and in particular to insure them at its own expense against loss, damage and destruction for their new value and to provide us with evidence in the form of the insurance policy and/or current premium receipts. The customer hereby assigns to us its claims under the relevant insurance policies. We accept the assignment of the claims. This does not affect the application of the German Insolvency Regulation.

5.4.1 The customer’s claims from the further disposal of retained goods, including by installation as an integral element of a piece of land, are hereby assigned to us with immediate effect together with all securities. They will serve as security to the same extent as the retained goods. If retained goods are sold by the customer together with other goods not sold by us, the receivable from the further disposal is hereby assigned to us up to the value of the retained goods.

5.4.2 On the disposal of goods of which we share the ownership as specified in 5.2, a portion corresponding to our share of ownership will be assigned to us.

5.5.1 The customer is entitled to collect receivables from any further disposal unless we revoke the direct debit authority in the cases specified in 4.5, in case of failure to redeem a bill or application for the initiation of insolvency proceedings. We will only make use of our right of revocation if it becomes apparent after this contract is signed that our claim to payment under the terms of this or other contracts with the customer is in jeopardy as a result of the latter’s inability to pay.

5.5.2 At our request, customers are obliged to inform their customers immediately of the assignment to us — if we do not do this ourselves — and to provide us with the information and documents necessary for collection. In no case will the customer be entitled to any further assignment of claims. This also applies to factoring transactions, except for genuine factoring assignments that are notified to us and in which the proceeds of factoring exceed the value of our secured receivable. Our receivable becomes due for payment as soon as the proceeds of factoring have been received. If customers have agreed not to assign receivables, they hereby authorise us to collect these receivables.

5.6 Customers must inform us without delay of any seizure or other action by third parties affecting retained goods. Customers bear all costs necessary to regain possession of retained goods, to the extent that the intervention was successful and the execution against the debtor was without success.

5.7 If the value of existing securities, including reserved goods within the meaning of 5.1.1, exceeds the total value of the claims secured by more than 50%, we must if required by the customer release securities at our discretion up to the relevant amount.

6. Liability for material defects

6.1.1 Obvious material defects must be notified in writing without delay, no later than within seven days of delivery. Businesspeople, public law legal entities and public law special funds must also give written notice without delay of material defects which are not obvious but are capable of discovery in the course of a reasonable inspection, no later than the expiry of the agreed or legally prescribed period of limitation; otherwise § 377 German Commercial Code is not affected.

6.1.2 If customers do not accept goods in accordance with statute or agreement for reasons for which we are not responsible, claims based on material defects will no longer be enforceable.

6.1.3 If material defects only become apparent when processing begins, complaints will only be considered if the processing of the defective items is stopped immediately.

6.1.4 Any claims based on material defects will lapse if customers fail to give us an immediate opportunity to inspect the defect, in particular if they do not make the goods concerned or samples thereof available on request.

6.2 If a justified complaint is made in time we may initially choose either to rectify the defect or to supply an item free of defects (remedy).

6.3.1 If the remedy fails or is refused, customers may reduce the purchase price or cancel the contract, as long as the defect in question is not insignificant and the goods have not already been sold, processed or transformed.

6.3.2 The customer is entitled to claim compensation for damages as provided by 7.

6.4.1 We will only bear costs associated with remedy where they are reasonable in the individual case, in particular in proportion to the remuneration for the goods/services in question.

6.4.2 We will not reimburse the cost of transporting the goods to a location other than the place of performance unless this corresponds to their contractual use.

6.5.1 The customer’s claims for material defects expire one year after delivery to the customer, even if goods are used for construction work, unless this type of use was agreed in writing.

6.5.2 When a remedy is provided, the period of limitation does not begin again.

6.6 The above provisions do not affect claims by the customer based on deliberate or grossly negligent breaches of obligation on our part, on a fraudulent failure to disclose material defects, on a guarantee provided by us or on the customer’s recourse rights in accordance with § 478 German Civil Code, as long as these do not exceed the material defect claims provided by law.

6.7 The customer is obliged as stipulated by law to undertake all measures to minimise any damage.

7. Other liability

7.1 We will only be liable for breaches of contractual and non-contractual obligation, including those by our executive staff and other agents, in cases of intent and gross negligence. Our liability is limited to the losses foreseeable at the time when the contract was concluded and typical of that type of contract.

7.2 The provisions of 6.5.1 and 6.5.2 apply accordingly to expiry by limitation.

7.3 These restrictions do not apply in the case of culpable breaches of substantial contractual obligations if the achievement of the purpose of the contract is jeopardised, if the German Product Liability Act imposes absolute liability or in cases of damage to life, limb or health, and they also do not apply if and to the extent that we fraudulently fail to disclose defects or have given a guarantee.

7.4 This does not affect the rules governing the burden of proof.

8. Applicable law, place of jurisdiction

8.1 All transactions are subject to German law, including foreign transactions. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.

8.2 If the conditions imposed by § 38 German Code of Civil Procedure for an agreement as to the place of jurisdiction are satisfied, the place of jurisdiction for all claims of the contracting parties is Lübeck, Germany.

8.3 We may, however, ask that disputes be settled by amicable arbitration.

November 8, 2021

STANDARD TERMS AND CONDITIONS OF PURCHASE

 

1. SCOPE OF WORK AND ACCEPTANCE: These Standard Terms and Conditions of Purchase and the written purchase order that accompanies, attaches, or incorporates them (the “Purchase Order” and collectively, the “Contract”), constitute the sole and exclusive terms on which Buyer agrees to be bound. The term Buyer includes Possehl Erzkontor N.A. Inc or any of its affiliates or subsidiaries which execute a Purchase Order. The term “Supplier” means the person, firm or company to whom the Purchase Order is addressed. In exchange for the Supplier’s compensation listed on the Purchase Order, Supplier agrees to supply the “Materials” which means all the goods and/or services to be supplied by Supplier under the Purchase Order. This Contract will become legally enforceable on the earlier of delivery of a signed acknowledgment, commencement of performance or delivery according to schedule of all or any portion of the Materials covered under this Contract, by Supplier. Any acceptance of this Contract is limited to acceptance of the express terms of the offer contained herein. 
2. SALE OF MATERIALS: Supplier agrees to sell, transfer and deliver the Materials to Buyer for the purchase price set forth in the Purchase Order, subject to all of the covenants, terms and conditions hereof. Buyer agrees to purchase the Materials, subject to all of the covenants, terms and conditions hereof, and to pay Supplier the purchase price set forth in the Order. Typographical and other clerical errors in the Order are subject to correction. Buyer reserves the right at any time to modify the Purchase Order upon notice to Supplier. Upon such notice, Buyer and Supplier shall negotiate an equitable adjustment in price and/or time of performance. Buyer shall have the right to stop all or part of the work under the Order or cancel any future delivery of any Materials upon notice to Supplier. Supplier agrees to obtain from Buyer a purchase order number for any and all purchase orders of goods and/or services. Supplier further agrees it will clearly reference the purchase order number on the applicable invoice(s). Supplier acknowledges that any invoice submitted to Buyer that does not clearly reference Buyer’s corresponding purchase order number may be considered invalid by Buyer and may result in delayed payment. 
3. PURCHASE PRICE AND TERMS OF PAYMENT: Supplier warrants that the prices set forth in this Contract are complete and that no additional charge of any type will be added without Buyer’s prior express written consent. Unless otherwise specified on the Order, payment of the purchase price shall be due forty-five (45) days after the later of Buyer’s receipt of Supplier’s correct invoice for such shipment or the date on which the Materials are received by Buyer. Supplier agrees that it will take no adverse action against Buyer for any invoices not paid resulting from Supplier’s failure to obtain or clearly reference purchase order numbers on the applicable invoices or accurately invoice Buyer. Unless otherwise noted on the Purchase Order, Supplier shall be responsible for all shipping and insurance costs, including without limitation, packing, crating, cartage and freight costs. Buyer may set off any amount owing at any time from Supplier to Buyer or any of its affiliates against any amount payable at any time by Buyer. 
4. WARRANTIES FOR MATERIALS: Supplier hereby warrants to Buyer that, in addition to any and all express and implied warranties provided under the Uniform Commercial Code, the Materials: (i) shall be provided in a competent, professional manner and in accordance with the highest standards and best practices of Supplier’s industry; (ii) shall be free from defects in materials and workmanship, and shall be merchantable and fit for their particular purpose and Supplier acknowledges that Buyer is relying on the Supplier’s skill or judgment to furnish suitable Materials; (iii) shall conform to and perform in accordance with all specifications, drawings, samples and other requirements referred to in the Purchase Order and provided by Supplier; (iv) when shipped shall be free from all liens, security interests and encumbrances of any type or any actual or claimed patent, copyright or trademark infringement or other colorable claims; (v) will not violate or in any way infringe upon the rights of third parties; and (vi) shall be performed or manufactured, produced, labeled, furnished and delivered to Buyer in full and complete compliance with all applicable federal, state and local laws and regulations. In addition to remedies otherwise available to Buyer, if Supplier is in breach of the warranties set out in this paragraph, Supplier will, at the election of Buyer (i) repair of the nonconforming Materials, (ii) replace or reperform nonconforming Materials with conforming Materials at the Buyer’s designated delivery point, or (iii) refund of that portion of the purchase price represented by the nonconforming Materials. 
5. DELIVERY OF MATERIALS: Supplier shall furnish, at Supplier’s expense, all labor, materials, equipment, transportation, facilities and other items that are necessary to meet the Purchase Order requirements. Time is of the essence in Supplier’s performance. Supplier must immediately notify Buyer whenever Supplier has knowledge of an actual or potential delay to the timely performance of the Order. In the event of Supplier’s refusal or failure to meet the delivery date(s) specified in the Purchase Order, Buyer may, without limiting its other rights and remedies, direct expedited routing and charge excess costs incurred thereby to Supplier, or cancel all or part of the Purchase Order. 6. COMPLIANCE WITH BUYER’S RULES; SAFETY: Supplier, its employees, subcontractors, and all other persons or entities acting on behalf of Supplier agree to abide by Buyer’s rules and reasonable requests while on premises owned, leased, or otherwise controlled by Buyer. Buyer reserves the right to bar from such premises Supplier, any employee, subcontractor or any other person or entity acting on behalf of Supplier for any cause that Buyer deems reasonable. Supplier will provide all safeguards and precautions necessary in connection with the provision of Materials to prevent the occurrence of any accident, injury, death, loss, or damage to any person or property, and Supplier will be solely responsible for any such occurrences. Supplier warrants that all Materials delivered hereunder will be in compliance with all Buyer requirements concerning safety, performance and otherwise, including, without limitation, any work or services related thereto performed on premises controlled by Buyer. Supplier agrees to immediately notify Buyer of any actual or possible safety or quality problems attributable to the Materials delivered hereunder. 
6. LIENS: Supplier guarantees that no lien, encumbrance or security interest will be filed by Supplier or anyone acting on behalf of, or claiming under or through Supplier, against Buyer, Buyer’s property, or the Materials furnished under this Contract. 
7. REJECTION AND REVOCATION OF ACCEPTANCE: Buyer shall not be bound to reimburse Supplier for any Materials that, in Buyer’s judgment, fail to conform to Supplier’s obligations under the Contract. Buyer has the right, before payment or acceptance of Materials under this Contract, to inspect the Materials at any reasonable place and time and in any reasonable manner. Neither the inspection, testing, payment or auditing of any Materials, nor the failure to do so, before delivery to Buyer constitute acceptance of any Materials, or relieve Supplier from exclusive responsibility of furnishing Materials in strict conformance with Buyer’s specification and instructions. If, in Buyer’s judgment, the Materials fail in any respect to conform to the Contract, Buyer may (a) reject the whole; (b) accept the whole; or (c) accept any commercial unit or units and reject the rest. Supplier agrees that any notification of nonconformity by Buyer, in whatever form, suffices to inform the Supplier that the transaction is claimed to involve a breach, and that Supplier will be responsible for any losses resulting from the nonconformity. In an appropriate case, Buyer may revoke its acceptance of Materials. Supplier agrees that Buyer’s acceptance of the Materials is reasonably induced by the Supplier’s assurances of their quality and conformity to the terms of the Contract. 
8. AUDITS AND INSPECTIONS: Buyer has the right to examine and audit, during normal business hours and upon reasonable notice, any and all records, data, invoices and documents that may contain information relating to Supplier’s obligations under this Contract. Such records will be kept by Supplier for a period of at least four (4) years after the expiration, cancellation or termination of this Contract, or for such longer periods as may be required by law. In addition, Buyer may inspect or test at any reasonable time and place all Materials prior to delivery. Supplier agrees to provide reasonable assistance for such audits, inspections, and tests. 
9. TAXES: Supplier will bear and pay all applicable taxes of the United States or any state or any foreign government including political subdivisions of any of them, which are based on or measured by net income, gross income or gross receipts including any withholding taxes levied against Supplier for the privilege of doing business in a jurisdiction. If Supplier is required by law to collect sales and use tax (including any gross receipts tax imposed similar to a sales and use tax) from Buyer on behalf of any taxing jurisdiction, Supplier will provide to Buyer invoices which separately state and clearly indicate the amount of tax and Buyer will remit any such tax to Supplier. Supplier will have the responsibility of complying with all applicable foreign, national, state or local laws regarding value added tax and sales and use tax or substitutes therefor including registration, collection of taxes and the filing of returns where applicable. Notwithstanding whether Supplier must collect sales and use tax from Buyer, Supplier will state on every invoice the taxing jurisdiction (e.g. country, state and local jurisdiction) in which Materials were provided. If applicable, in lieu of payment for any sales and use tax, Supplier will accept a properly executed exemption or direct pay certificate from Buyer. The Page 2 of 3 Services determination of whether an exemption or direct pay certificate will be submitted to Supplier in lieu of payment for any sales and use tax will be made by Buyer on a location by location basis. With the exception of sales and use tax as described above, all other taxes, however denominated or measured, imposed upon the Supplier, or the price or compensation under this Contract, or upon the Materials provided hereunder, will be the responsibility and liability of Supplier. 
10. CONFIDENTIALITY: During the term of this Contract and for five years after its cancellation, termination or expiration, Supplier shall not make use of Buyer’s Confidential Information (as hereinafter defined) for purposes other than the fulfillment of the obligations under this Contract, or disclose to any person or entity, other than those of its employees who have a need to know, any Confidential Information, whether written or oral, which the Supplier obtains from Buyer or otherwise discovers in the performance of this Contract. “Confidential Information,” as used in this Contract, will mean all information relating to Buyer’s business which is not generally available to the public. Confidential Information includes information that Supplier possesses that predates this Contract. The foregoing provisions of this paragraph shall not apply to any information that is: (a) rightfully known to Supplier prior to disclosure by Buyer; or (b) rightfully obtained by Supplier from any third party; or (c) made available by Buyer to the public without restrictions; or (d) disclosed by Supplier with prior written permission of Buyer; or (e) independently developed or learned by Supplier through legitimate means; or (f) disclosed by Buyer to a third party without a duty of confidentiality on the third party; or (g) disclosed pursuant to any applicable laws, regulations, or order of a court of competent jurisdiction. Supplier will provide reasonable prior written notice to Buyer if it is required to disclose any of Buyer’s Confidential Information under operation of law. Buyer expressly reserves the right to disclose any of the terms of this Contract, including but not limited to pricing, to third parties. 
11. LIMITATION ON USE OF PAYMENT: Supplier shall not offer or use, directly or indirectly, any money, property or anything of value received by Supplier under or pursuant to this Contract to influence improperly or unlawfully any decision, judgment, action or inaction of: any official, employee or representative of any government or agency or instrumentality thereof, or of any government owned or partially government owned entity, or any other person or entity, in connection with or relating to the subject matter of this Contract or any supplement or amendment hereto. No payment shall be made nor shall any transaction be entered into in connection with this Contract that is illegal, improper or intended to unduly or improperly influence any third party, including without limitation, by means of extortion, kickback or bribery. If Supplier breaches the terms of this provision, Buyer may immediately terminate this Contract without any liability. 
12. INTELLECTUAL PROPERTY: In the event the Contract relates to consulting services, the Supplier shall be considered a consultant and every work or idea created or acquired by or on behalf of the Supplier for Buyer (past and future) shall be considered a “work made for hire” on behalf of the Buyer. It is the intent of the parties that Buyer shall have unrestricted ownership in and to all such works and to any derivative works, without further compensation of any kind to the Supplier. To the extent that the law would fail to automatically vest in Buyer the full unrestricted ownership of all such works under “work for hire” treatment or similar concepts, the Supplier hereby assigns to Buyer the copyright and any and all other rights in and to every such work including any derivatives, and the Supplier waives any claim of moral right that it may have in or in connection with such work. Supplier may not use Buyer’s name and/or logo in any manner, other than as may be identified in this Contract, without first obtaining written permission from Buyer. 
13. INDEMNIFICATION: Supplier will indemnify, defend, and hold harmless Buyer, its directors, officers, employees, agents, representatives, successors, assigns, and customers (“Indemnitees”) from and against all liabilities, expenses, suits, claims, actions, demands, judgments, settlements, costs, losses, fines and penalties, including but not limited to attorney fees, costs and expenses of litigation (“Claims”), that arise out of or are related to: (i) the Materials, defective Materials or their manufacture, delivery, use or misuse; (ii) the performance of this Contract; or (iii) breach of any of the provisions of this Contract, whether Claims are caused in whole or in part by any negligence or any act or omission of Supplier, its directors, officers, employees, subcontractors, agents, representatives, successors, or assigns, and regardless of whether or not such negligence or acts or omissions were caused in part by the Indemnitees. Supplier hereby expressly agrees to waive any provision of any workers’ compensation act, disability or other employee benefits laws, or any similar laws granting Supplier rights and immunities as an employer, and expressly agrees to indemnify, defend, and hold harmless the Indemnitees against all Claims brought by the workers, servants, agents, or employees of Supplier encompassed by this Indemnification paragraph 14. Among other such laws, Supplier expressly waives application of Section 303(b) of the Pennsylvania Workers’ Compensation Act, and Section 35, Article II of the Ohio Constitution and Ohio Revised Code Section 4123.74, as each may be amended or revised from time to time. 
14. INSURANCE: Supplier agrees: (i) to maintain in full force and effect casualty, property, and other lines of insurance of the types, on the terms and in the amounts commensurate with its business and risks associated therewith (“Insurance”) and to comply with applicable workers compensation insurance laws regarding insurance or qualification as a self-insurer; (ii) to the extent permitted by law, to waive rights of subrogation and contribution against Buyer, including Buyer as an additional insured, under policies of Insurance; (iii) to ensure that Buyer is made an additional insured on policies of Insurance under terms of coverage customary to the risk of loss to which Buyer is exposed and that the limits of Insurance to which Buyer is entitled as an additional insured are no less than the amount of total limits of Insurance applicable to Supplier under all of the policies of Insurance; (iv) to ensure that the policies of Insurance are stated to be specifically primary to any of Buyer’s insurance policies, which policies shall be, in all respects, excess to Supplier’s policies of Insurance; (v) to be solely responsible for any deductibles, self-insured retentions, or other form of self-insurance under the policies of Insurance; (vi) upon Buyer’s request, to timely provide written certification, reasonably acceptable to Buyer, certifying the material terms of the policies of Insurance.
15. FORCE MAJEURE: Neither party will be in default for any delay or failure to perform its obligations under this Contract if caused by an extraordinary, unforeseen supervening circumstance not within the contemplation of the parties at the time of contracting and beyond the reasonable control of the party affected. The parties agree that there is no agreed source of supply for Supplier to fulfill its obligations under this Contract. The party affected by an event under this paragraph shall furnish prompt written notice of any delays or non-performances (including its anticipated duration) after becoming aware that it has occurred or likely will occur. If Supplier is unable to perform for any reason, Buyer may obtain the Services and purchase the Goods from other sources and reduce its obligations owing to Supplier accordingly without liability to Supplier. Within three business days after written request by the other party, the non-performing party will provide adequate assurances that the non-performance will not exceed 30 days. If the non-performing party does not provide those assurances, or if the non-performance exceeds 30 days, the other party may terminate the Contract by notice given to the non-performing party before performance resumes. 
16. INDEPENDENT CONTRACTOR/SUBCONTRACTS: Supplier is and will remain an independent Supplier of Buyer. No employee, agent, or representative of Supplier or its subcontractors will be deemed to be an employee of Buyer. Supplier must obtain Buyer’s written permission before subcontracting any portion of this Contract. Except for the insurance requirements in this Contract, all subcontracts and orders thereunder will require that the subcontractor or materialman be bound by and subject to the terms and conditions of the Contract. No subcontract or order will relieve Supplier from its obligations to Buyer, including, but not limited to Supplier’s insurance and indemnification obligations. No subcontract or order will bind Buyer. 
17. CHANGES: This Contract may not be modified except by a writing signed by the parties. The Supplier’s compensation shall not exceed the maximum set forth in the Purchase Order without a writing expressly authorizing the increase signed by Buyer. Supplier agrees it shall have no right to seek additional sums based on quantum meruit, promissory estoppel, or any other theory of law, regardless of the work it performs related to this Contract. 
18. MERGER AND MODIFICATION: This Contract is intended to be the complete, exclusive, and fully integrated statement of the parties’ agreement regarding the Materials. As such, it is the sole repository of the parties’ agreement, and they are not bound by any other agreements, promises, or representations of whatsoever kind or nature. The parties also intend that this complete, exclusive and fully integrated statement of their agreement may not be supplemented or explained (interpreted) by any evidence of trade usage or course of dealing. This Contract may not be modified except by a writing signed by the parties. Regardless of the work performed by Supplier, the Supplier’s compensation shall not exceed the maximum set forth in the Purchase Order without a writing expressly authorizing the increase signed by Buyer. 
19. ANTI-WAIVER: No term or provision of this Contract shall be deemed waived, and no breach excused, unless such waiver or consent is in writing and signed by the party claimed to have provided such waiver or consent. No waiver of any right shall constitute a waiver of any other right, whether of a similar nature or otherwise. Page 3 of 3 Services 21. SURVIVAL: Notwithstanding the expiration, termination, or cancellation of this Contract, it is agreed that those rights and obligations which by their nature and context are intended to survive such expiration or termination will survive beyond such expiration, termination, or cancellation. 
20. ASSIGNMENT: Neither this Contract, nor Supplier’s rights and obligations hereunder, are assignable by Supplier without the prior written consent of Buyer. No such consent or assignment will release Supplier or alter Supplier’s liability to perform all of its obligations under this Contract. Any attempted assignment without the prior written consent of Buyer will be null and void. 
21. NO VIOLATION OF LAW: Supplier agrees to comply with all pertinent federal, state, municipal and local laws, regulations, ordinances and codes of any governmental authority having jurisdiction. Unless this Contract is otherwise exempted by law, Supplier will comply with Executive Order 11246, as amended by Executive Order 11375 (Equal Employment Opportunity) the Rehabilitation Action of 1973, the Vietnam Era Veteran’s Readjustment Assistance Act of 1974 and the Americans with Disabilities Act, as they have been or may be amended from time to time, and regulations implementing such statutes; and any similar state and local laws and ordinances and the regulations implementing such statutes. Supplier warrants that the Goods and Services delivered hereunder were produced at facilities complying with all applicable provisions of the Occupational Safety and Health Act and applicable regulations under that Act. Supplier further warrants that it will comply, where applicable, and without limitation, with all orders, standards, and regulations of the pertinent governmental administrations. Supplier and subcontractor shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. 
22. CHOICE OF LAW AND CHOICE OF FORUM: Any and all claims or matters of dispute between the parties to this Contract, whether arising from the Contract itself or arising from alleged extra-contractual facts or incidents, including, without limitation, fraud, misrepresentation, negligence or any other alleged tort or any breach of the Contract, shall be resolved, governed by, construed, and enforced in accordance with the laws of Ohio, regardless of the legal theory upon which such matters are asserted, including Ohio’s statutes of limitations but not including its choice of laws rules. The application of the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) is hereby expressly excluded. Any and all claims or matters of dispute referenced in this paragraph shall be resolved in a court of competent jurisdiction in Columbus, Ohio, which courts shall have exclusive jurisdiction of all such disputes. Supplier waives any and all objections that it might otherwise have as to personal jurisdiction or venue in such courts.

CONDITIONS OF SALE OF PRODUCT

1. The price of the Product is set forth on the front page of this Contract.  Unless otherwise provided in this Contract, Buyer shall pay all taxes, excises, fees or charges with respect to the sale and transportation of all Product shipped to Buyer.  If this Contract provides for multiple future deliveries, Seller reserves the right to effect a general price increase or change the payment or transportation terms as of the first day of any calendar quarter by written notice to Buyer, dispatched at least fifteen days prior to the first day of that quarter.  If Buyer fails to object in writing before the first day of that quarter, the proposed price revision shall become effective.  If Buyer raises objection, Seller shall within fifteen days advise Buyer whether Seller will continue to supply at the price in effect at the time of the notice of increase or cancel the Contract, without penalty, but subject to the price protection set forth below.  Seller may at any time without notice decrease the price, and if Seller puts into effect a general price decrease for the Product, shipments made while such reduced price remains in effect will be charged at the lower price.  In the event of a price increase, Buyer will receive price protection on volume of one normal month’s business (based on an average month calculated from the previous six-month period) for the month during which a price increase becomes effective and for any intervening month between the date of the increase and the beginning of the month during which the price increase becomes effective.  If less than six months shipping history exists, then the price protection volume will be based on the monthly rate of the Contract Term.  Shipment of price protected Product must be made prior to the end of the price protection period.
2. Unless otherwise specified and agreed by Seller, all Product purchased pursuant to this Agreement shall be delivered to Buyer FCA (Incoterms 2010) Seller’s plant or warehouse or such other location as Seller may determine.  Unless otherwise specified and agreed by Seller, title, liability for and risk of loss to such Product shall pass to Buyer when Product is placed in the hands of the carrier, and Buyer assumes all responsibility for shortages, losses, delays or damages in transit thereafter.  Seller will arrange for shipment to Buyer in accordance with Buyer’s shipping instructions.  If Buyer has not provided shipping instructions, Seller will arrange for shipment to Buyer in such manner as Seller selects, consistent with Seller’s ability to schedule manufacturing and shipment.  When shipment is made in bulk, certified weights and official sample at point of shipment shall govern.  Product shall be shipped by Seller in accordance with Seller’s standard shipping practices at Seller’s place of shipment.  Buyer shall pay the costs of any specialized packing, labeling, stacking or crating requested by Buyer, as may be required by law or if the Product requires specialized packaging.  Seller’s current price list for certain specialized items, referred to as “Warehouse Costs,” is available on Seller’s website or upon request.  In the event Seller is required to pay fees, demurrage, or costs with respect to the shipping of the Product, Buyer hereby agrees to pay all such fees, demurrage, and other costs, including any subsequent undercharge claims, and to indemnify and hold Seller harmless from any claims for payment of any such fees, demurrage, or other costs unless caused by Seller’s negligence or breach of this Agreement.
3. If this Contract contemplates multiple deliveries over the Term, then, unless otherwise specified, Product will be delivered ratably in shipment quantities determined by Seller.  Buyer agrees that should the Term of this Agreement expire, for any reason, without Buyer having accepted delivery of the full quantity of Product specified in this Agreement, Seller shall notify Buyer of Buyer’s failure to purchase such Product in the required quantities and shall give Buyer thirty (30) days to respond to Seller directing Seller where to ship such Product with an invoice to be sent to Buyer.  Should Buyer refuse such delivery or fail to respond to Seller within such thirty (30) day period, Seller shall have the right to destroy or otherwise dispose of such Product and Buyer shall pay for such Product, as well as for the destruction costs and storage costs incurred by Seller beyond the Term of this Agreement and any other related costs net of any amounts actually received by Seller if such Product is sold to another customer if permissible.  Buyer shall also be responsible for materials produced or purchased by Seller uniquely for the production of the Product for Buyer including, but not limited to, packaging materials.
4. Buyer (or Buyer’s freight forwarder, if one) shall inspect Product sold hereunder immediately upon receipt of the same at Buyer’s or Buyer’s freight forwarder’s facility.  UNLESS WRITTEN NOTICE OF REJECTION, SPECIFYING THE GROUNDS THEREFOR, IS RECEIVED BY SELLER WITHIN TEN (10) DAYS FROM THE DATE OF RECEIPT OF PRODUCT BY BUYER OR BUYER’S FREIGHT FORWARDER, SUCH PRODUCT SHALL AUTOMATICALLY BE DEEMED ACCEPTED.  Product, once accepted, may not be returned without prior written approval by Seller and, if Seller provides such approval Buyer agrees to return Product shipped only in its original packaging and to pay a restocking charge of 25% of the invoice price for the returned Product.  ANY CLAIM FOR DAMAGES AS A RESULT OF THE RECEIPT OF DEFECTIVE OR OTHERWISE NON-CONFORMING PRODUCT UNDER THIS AGREEMENT MUST BE MADE BY BUYER THROUGH WRITTEN NOTICE TO SELLER WITHIN TEN (10) DAYS FOLLOWING RECEIPT OF THE PRODUCT BY BUYER OR BUYER’S FREIGHT FORWARDER, DESCRIBING THE SPECIFIC DEFECT OR CLAIM ALLEGED.  FAILURE TO PROVIDE SUCH WRITTEN NOTICE WITHIN THIS TIME PERIOD SHALL BE DEEMED A WAIVER AND RELEASE OF ANY SUCH CLAIM OR RIGHT OF RECOVERY BY BUYER WITH RESPECT TO ANY SUCH DEFECTIVE OR NON-CONFORMING PRODUCT.  SELLER’S LIABILITY FOR ANY AND ALL DAMAGES, ACTIONS OR CLAIMS AS A RESULT OF RECEIPT BY BUYER OF DEFECTIVE OR OTHERWISE NON-CONFORMING PRODUCT, REGARDLESS OF THE NATURE OF SUCH CLAIMS, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH A CLAIM IS MADE.  SELLER SHALL NOT BE LIABLE FOR LOST PROFITS OR FOR INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES.
5. Seller warrants title and that all Product sold hereunder at the time of shipment shall conform to Seller’s standard specifications in effect on the date of shipment or to the attached specifications, if any.  If the Product is intended for human consumption, Seller warrants that the Product, as of the date of shipment, shall be wholesome and otherwise fit for human consumption and not in violation of any State or Federal laws or regulations, and is not adulterated or misbranded within the meaning of the federal Food, Drug and Cosmetic Act, nor is it Product which may not, under the provisions of that Act, be introduced into interstate commerce.  SELLER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCT DESCRIBED HEREIN, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.  SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S PURCHASE OR USE OF SUCH PRODUCT OR FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING THEREFROM.  SELLER’S TOTAL LIABILITY TO BUYER FOR ANY BREACH OF THIS LIMITED WARRANTY, OR FOR ANY CLAIM THAT THE PRODUCT DELIVERED HEREUNDER WAS DEFECTIVE OR NON-CONFORMING, SHALL BE LIMITED TO THE INVOICE PRICE OF ANY GOODS SHOWN TO BE DEFECTIVE, NON-CONFORMING, OR IN VIOLATION OF THE LIMITED WARRANTY PROVIDED HEREIN.
6. Waiver by either party of any default of the other shall not operate to excuse the defaulting party from further compliance with this Contract.  If Buyer fails to make any payment under this Contract when due, Seller, in addition to other legal remedies, shall have the right to, in its discretion, withhold further shipments, require immediate cash payments for past and future shipments or require other security satisfactory to Seller before further deliveries shall be made, or to terminate this Contract.
7. Seller warrants that the Product to be delivered hereunder does not infringe the claims of any United States patent covering the Product itself; however, this warranty does not include charges of infringement arising by reason of the Buyer’s conversion of the Product to another form, or its use in combination with other material, or its use in the operation of any process.  In the event any suit or legal proceeding is brought against Buyer based on a claim that the Product furnished hereunder in itself constitutes an infringement of any United States patent, the Seller shall defend at its own expense that portion of any suit or legal proceeding relating to said claim and will pay any damages or costs including attorney’s fees awarded on said claim against Buyer, provided Buyer gives Seller prompt written notice of such infringement claim and of the institution of such suit or proceeding and also gives Seller all necessary authority, information and reasonable assistance to enable Seller, at Seller’s option, to settle or defend the same as to said claim.  The foregoing states the parties’ entire agreement as to charges of infringement.
8. Should Seller’s supply of available Product or its ability to make delivery be limited by any factor whatsoever beyond the reasonable control of itself or its affiliated companies, including, but not limited to, labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or in the event of inability to obtain on terms deemed by Seller to be practicable any raw material (including energy source), etc., Seller will allocate its supply, available for sale to its customers, on a fair and equitable basis selected by the Seller.  Seller shall not be obligated to make up deficiencies in deliveries hereunder due to any such cause.  Labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or other causes beyond the reasonable control of Buyer which prevent Buyer from receiving and/or using Product covered by this contract shall operate to suspend deliveries during the period required to remove such cause.  In the event Seller is unable to supply Product to Buyer due to an event of force majeure, Buyer may purchase Product from a third-party supplier for the period of time that such event of force majeure is in effect.
9. Should Seller elect to discontinue, curtail or limit the production or sale of Product due to the application of any governmental statute, regulation or order including but not limited to price controls, transportation, energy controls, pollution control, or product safety which, in Seller’s judgment, will render the production or marketing of the Product economically, technologically or commercially infeasible, Seller may terminate this Contract upon thirty days prior written notice to Buyer.
10. Each delivery of Product shall constitute a separate sale with the same effect as though made under a separate contract covering the amount thereof.  Any delay or default by Seller with respect to any delivery shall not affect Buyer’s obligation to order, accept, and pay for future deliveries.
11. Whether this agreement refers to manufactured items or to work, Seller warrants and agrees that it has complied, and will comply with (1) Fair Labor Standards Act as amended, and (2) Social Security and Workmen’s Compensation Laws as amended, if work is done on Buyer’s premises, and (3) all other applicable laws, codes, regulations, rules and orders.
12. Neither party may assign this Contract without the express written consent of the other party; provided, however, that either part may assign this Contract to an affiliated company without restriction.
13. Unless otherwise specified, this Contract shall be governed by the laws of the State of Ohio.
14. Any and all claims or matters of dispute referenced in this paragraph shall be resolved in a court of competent jurisdiction in Columbus, Ohio, which courts shall have exclusive jurisdiction of all such disputes. Supplier waives any and all objections that it might otherwise have as to personal jurisdiction or venue in such courts.
15. All information provided by Seller hereunder, including, but not limited to, the terms and conditions of this Agreement, must be held in confidence by Buyer.  This obligation shall survive the termination or expiration of this Agreement.
16. Whenever possible, each provision of this Agreement and any invoices or subsequent written contracts executed pursuant to this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement or any invoice or contract related hereto shall be prohibited by or invalid under such law, such provisions shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any invoice or contract related hereto.  Any failure by Seller to exercise any right or remedy hereunder shall not be construed as a waiver of the exercise of that right or any other right at any subsequent time prior to payment of all amounts due Seller.
17. This Agreement, together with any invoices issued hereunder and any other written contracts executed pursuant to this Agreement, incorporates all the understandings of the parties with respect to the matters contained herein and supersedes all prior agreements, negotiations or communications, whether oral, written, or implied concerning the subject matter of this Agreement.  In the event of any discrepancy between this Agreement and any invoice or other agreement between the parties, the terms of this Agreement shall control.

 

CONDITIONS OF SALE OF SERVICE

 

1. The price for the Services and any packaging or other materials provided by Seller is set forth on the front page of this Contract.  Unless otherwise provided in this Contract, Buyer shall pay all taxes (excluding taxes on income), excises, fees or charges with respect to the provision of the Services, sale of any materials supplied by Seller and transportation of all Products to Buyer.  If this Contract provides for multiple future deliveries, Seller reserves the right to effect a general price increase or change the payment or transportation terms as of the first day of any calendar quarter by written notice to Buyer, dispatched at least fifteen days prior to the first day of that quarter.  If Buyer fails to object in writing before the first day of that quarter, the proposed price revision shall become effective.  If Buyer raises objection, Seller shall within fifteen days advise Buyer whether Seller will continue to supply at the price in effect at the time of the notice of increase or cancel the Contract, without penalty, but subject to the price protection set forth below.  Seller may at any time without notice decrease the price, and if Seller puts into effect a general price decrease for the Services, shipments made while such reduced price remains in effect will be charged at the lower price.  In the event of a price increase, Buyer will receive price protection on volume of one normal month’s business (based on an average month calculated from the previous six-month period) for the month during which a price increase becomes effective and for any intervening month between the date of the increase and the beginning of the month during which the price increase becomes effective.  If less than six months shipping history exists, then the price protection volume will be based on the monthly rate of the Contract Term.  Provision of price protected Services must be made prior to the end of the price protection period.
2. Risk of loss to Product and packaging materials supplied by Buyer to Seller for provision of Services hereunder shall pass to Seller when the Product or materials are received by Seller.  Unless otherwise specified and agreed by Seller, all finished Product packaged pursuant to this Agreement shall be delivered to Buyer FCA (Incoterms 2010) Seller’s plant or warehouse or such other location as Seller may determine.  Unless otherwise specified and agreed by Seller, liability for and risk of loss to such Product and packaging materials shall pass back to Buyer when Product is placed in the hands of the carrier, and Buyer assumes all responsibility for shortages, losses, delays or damages in transit thereafter.  Seller will arrange for shipment to Buyer in accordance with Buyer’s shipping instructions.  If Buyer has not provided shipping instructions, Seller will arrange for shipment to Buyer in such manner as Seller selects, consistent with Seller’s ability to schedule processing and shipment.  When shipment is made in bulk, certified weights and official sample at point of shipment shall govern.  Finished packaged Product shall be shipped by Seller in accordance with Seller’s standard shipping practices at Seller’s place of shipment.  Buyer shall pay the costs of any specialized packing, crating, freight express or cartage requested by Buyer, as may be required by law or if the Product requires specialized packaging.  Seller’s current price list for certain specialized items, referred to as “Warehouse Costs,” is available on Seller’s website or upon request.  In the event Seller is required to pay fees, demurrage, or costs with respect to the shipping of the Product, Buyer hereby agrees to pay all such fees, demurrage, and other costs, including any subsequent undercharge claims, and to indemnify and hold Seller harmless from any claims for payment of any such fees, demurrage, or other costs unless caused by Seller’s negligence or breach of this Agreement.
3. If this Contract contemplates multiple deliveries over the Term, then, unless otherwise specified, Product will be delivered ratably in shipment quantities determined by Seller.  Buyer agrees that should the Term of this Agreement expire, for any reason, without Buyer having accepted delivery of the full quantity of finished packaged Product specified in this Agreement, Seller shall notify Buyer of Buyer’s failure to purchase the Services in the required quantities and shall give Buyer thirty (30) days to respond to Seller directing Seller where to ship any unpackaged Product with an invoice to be sent to Buyer.  Should Buyer refuse such delivery or fail to respond to Seller within such thirty (30) day period, Seller shall have the right to destroy or otherwise dispose of such Product, as well as for the destruction costs and storage costs incurred by Seller beyond the Term of this Agreement and any other related costs net of any amounts actually received by Seller if such Product is sold to another customer if permissible.  Buyer shall also be responsible for materials produced or purchased by Seller uniquely for the provision of the Services for Buyer including, but not limited to, packaging materials.
4. Buyer (or Buyer’s freight forwarder, if one) shall inspect packaged Product delivered hereunder immediately upon receipt of the same at Buyer’s or Buyer’s freight forwarder’s facility.  UNLESS WRITTEN NOTICE OF REJECTION, SPECIFYING THE GROUNDS THEREFOR, IS RECEIVED BY SELLER WITHIN TEN (10) DAYS FROM THE DATE OF RECEIPT OF PACKAGED PRODUCT BY BUYER OR BUYER’S FREIGHT FORWARDER, SUCH PACKAGED PRODUCT SHALL AUTOMATICALLY BE DEEMED ACCEPTED.  ANY CLAIM FOR DAMAGES AS A RESULT OF THE RECEIPT OF DEFECTIVE OR OTHERWISE NON-CONFORMING PACKAGED PRODUCT UNDER THIS AGREEMENT MUST BE MADE BY BUYER THROUGH WRITTEN NOTICE TO SELLER WITHIN TEN (10) DAYS FOLLOWING RECEIPT OF THE PACKAGED PRODUCT BY BUYER OR BUYER’S FREIGHT FORWARDER, DESCRIBING THE SPECIFIC DEFECT OR CLAIM ALLEGED.  FAILURE TO PROVIDE SUCH WRITTEN NOTICE WITHIN THIS TIME PERIOD SHALL BE DEEMED A WAIVER AND RELEASE OF ANY SUCH CLAIM OR RIGHT OF RECOVERY BY BUYER WITH RESPECT TO ANY SUCH DEFECTIVE OR NON-CONFORMING PACKAGED PRODUCT.  SELLER’S LIABILITY FOR ANY AND ALL DAMAGES, ACTIONS OR CLAIMS AS A RESULT OF RECEIPT BY BUYER OF DEFECTIVE OR OTHERWISE NON-CONFORMING PACKAGED PRODUCT, REGARDLESS OF THE NATURE OF SUCH CLAIMS, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE SERVICES PROVIDED WITH RESPECT TO THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH A CLAIM IS MADE.  SELLER SHALL NOT BE LIABLE FOR LOST PROFITS OR FOR INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES.
5. Seller warrants that all Services performed hereunder shall conform to Seller’s standard specifications in effect on the date the Services are performed or to the attached specifications, if any.  SELLER MAKES NO OTHER WARRANTY, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES DESCRIBED HEREIN, AND EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.  SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S PURCHASE OR USE OF SUCH SERVICES OR FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING THEREFROM.  SELLER’S TOTAL LIABILITY TO BUYER FOR ANY BREACH OF THIS LIMITED WARRANTY, OR FOR ANY CLAIM THAT THE SERVICES DELIVERED HEREUNDER WERE DEFECTIVE OR NON-CONFORMING, SHALL BE LIMITED TO THE INVOICE PRICE OF ANY SERVICES SHOWN TO BE DEFECTIVE, NON-CONFORMING, OR IN VIOLATION OF THE LIMITED WARRANTY PROVIDED HEREIN.
6. Waiver by either party of any default of the other shall not operate to excuse the defaulting party from further compliance with this Contract.  If Buyer fails to make any payment under this Contract when due, Seller, in addition to other legal remedies, shall have the right to, in its discretion, withhold further shipments, require immediate cash payments for past and future shipments or require other security satisfactory to Seller before further deliveries shall be made, or to terminate this Contract.
7. Seller warrants that the Services to be delivered hereunder do not infringe the claims of any United States patent covering the Services themselves; however, this warranty does not include charges of infringement arising by reason of the Buyer’s conversion of the Product to another form, or its use in combination with other material, or its use in the operation of any process.  In the event any suit or legal proceeding is brought against Buyer based on a claim that the Services furnished hereunder in themselves constitute an infringement of any United States patent, the Seller shall defend at its own expense that portion of any suit or legal proceeding relating to said claim and will pay any damages or costs including attorney’s fees awarded on said claim against Buyer, provided Buyer gives Seller prompt written notice of such infringement claim and of the institution of such suit or proceeding and also gives Seller all necessary authority, information and reasonable assistance to enable Seller, at Seller’s option, to settle or defend the same as to said claim.  The foregoing states the parties’ entire agreement as to charges of infringement.
8. Should Seller’s supply of Services or its ability to make delivery be limited by any factor whatsoever beyond the reasonable control of Seller or its affiliated companies, including, but not limited to, labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or in the event of inability to obtain on terms deemed by Seller to be practicable any raw material (including energy source), etc., Seller will allocate its supply, available for sale to its customers, on a fair and equitable basis selected by the Seller.  Seller shall not be obligated to make up deficiencies in deliveries hereunder due to any such cause.  Labor difficulties, fires, action of the elements, accidents, failure or delay occasioned by carriers, governmental action, whether valid or not, or other causes beyond the reasonable control of Buyer which prevent Buyer from receiving and/or using Product covered by this contract shall operate to suspend deliveries during the period required to remove such cause.  In the event Seller is unable to supply Services to Buyer due to an event of force majeure, Buyer may purchase Services from a third-party supplier for the period of time that such event of force majeure is in effect.
9. Should Seller elect to discontinue, curtail or limit the provision of Services due to the application of any governmental statute, regulation or order including but not limited to price controls, transportation, energy controls, pollution control, or product safety which, in Seller’s judgment, will render the production or marketing of the Product economically, technologically or commercially infeasible, Seller may terminate this Contract upon thirty days prior written notice to Buyer.
10. Each provision of Services shall constitute a separate sale with the same effect as though made under a separate contract covering the amount thereof.  Any delay or default by Seller with respect to any delivery shall not affect Buyer’s obligation to order, accept, and pay for future deliveries.
11. Seller warrants and agrees that it has complied, and will comply with (1) Fair Labor Standards Act as amended, and (2) Social Security and Workmen’s Compensation Laws as amended, and (3) all other applicable laws, codes, regulations, rules and orders.
12. Neither party may assign this Contract without the express written consent of the other party; provided, however, that either part may assign this Contract to an affiliated company without restriction.
13. Unless otherwise specified, this Contract shall be governed by the laws of the State of Ohio.
14. Any and all claims or matters of dispute referenced in this paragraph shall be resolved in a court of competent jurisdiction in Columbus, Ohio, which courts shall have exclusive jurisdiction of all such disputes. Supplier waives any and all objections that it might otherwise have as to personal jurisdiction or venue in such courts.
15. All information provided by Seller hereunder, including, but not limited to, the terms and conditions of this Agreement, must be held in confidence by Buyer.  This obligation shall survive the termination or expiration of this Agreement.
16. Whenever possible, each provision of this Agreement and any invoices or subsequent written contracts executed pursuant to this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement or any invoice or contract related hereto shall be prohibited by or invalid under such law, such provisions shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any invoice or contract related hereto.  Any failure by Seller to exercise any right or remedy hereunder shall not be construed as a waiver of the exercise of that right or any other right at any subsequent time prior to payment of all amounts due Seller.
17. This Agreement, together with any invoices issued hereunder and any other written contracts executed pursuant to this Agreement, incorporates all the understandings of the parties with respect to the matters contained herein and supersedes all prior agreements, negotiations or communications, whether oral, written, or implied concerning the subject matter of this Agreement.  In the event of any discrepancy between this Agreement and any invoice or other agreement between the parties, the terms of this Agreement shall control.

November 8, 2021