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This Agreement shall govern each sale of the products listed on attached Exhibit “A” by Seller to Buyer (“Products”) during the Term. This
Agreement shall apply only to the purchase of Products by Buyer and its Affiliates in, and for subsequent use and/or resale. This Agreement,
including all attachments, may be amended by mutual agreement of the parties, which may be evidenced by exchange of written communications,
including email proposal and acceptance by each party’s authorized representative. The authorized representative shall be the person executing
this Agreement on behalf of the party, that person’s replacement, or any person authorized in writing (including email) by such person. Each of
Buyer’s Affiliates may also purchase Products from Seller hereunder for their own account on the same terms and conditions as are applicable to
Buyer. “Affiliates” in the case of Buyer means entities with the same approximate common ownership. The liability of each Buyer Affiliate and
Buyer under this Agreement shall be several and not joint. Seller shall bill each such Buyer Affiliate separately for the Products sold to such
Affiliate. Each Affiliate shall only be liable for those obligations expressly set forth in the Purchase Order to which it is a party. In no event will
Buyer be liable for any of the obligations or liabilities of any Affiliate pursuant to this Agreement. The liability of Seller under this Agreement shall
be several and not joint. Seller shall only be liable for those obligations expressly set forth in an accepted Purchase Order to which it is a party.
2.PURCHASE AND SALE OF PRODUCTS
A. General. During the Term, Seller agrees to sell to Buyer the Products ordered by Buyer’s duly issued purchase orders or electronically
transmitted (“EDI”) sales orders (each, a “Purchase Order”) on the terms and conditions provided herein. For EDI orders if available, Seller agrees
to comply with the terms and conditions of the then-current version of Buyer’s EDI Supplier Handbook, a copy of which will be provided to Seller
upon request. Each Purchase Order shall be deemed to be incorporated as part of this Agreement upon Buyer’s issuance thereof. A Purchase
Order shall be deemed accepted by Seller in the event Seller fails to provide proper written notice of rejection within forty eight hours of Buyer’s
issuance of the Purchase Order in accordance with the terms and conditions of this Agreement. Seller shall have the right to reject a Purchase
Order only if the Purchase Order does not comply with, or modifies, the express requirements of this By way of clarification, Buyer and its Affiliates
shall not be entitled to act as a distributor and sell Products to other resellers.
B. Supply Chain Management for Products.
(i)Forecasting. On a monthly basis, Buyer shall provide Seller with a rolling forecast of Products for the following 12 months.
(ii)Inventory Planning and Targets. Seller shall be responsible for material planning to meet mutually agreed upon service (“Order fulfillment”)
levels for Products. These material planning responsibilities include, but are not limited to: (a) monitoring daily and weekly Buyer demand data
provided by Buyer in relation to Seller’s Lead Time; (b) reviewing Product forecasts provided by Buyer; (c) providing timely feedback on Product
availability issues. Seller will make available to the Buyer initially 25 tons of Product on a daily basis, seven days a week, and will be able to
provide up to 50 tons of the Product daily by the end of 2014.
(iii)Backup Inventory. Seller will maintain Product in inventory a level of at least a 3 day supply of Product in a form that the product is ready for
shipment to the Buyer.
(iv)Service Levels. Both Buyer and Seller shall strive to achieve a 100% service level.
C. Minimum Order Quantity. Buyer will only accept and Seller shall agree to a Minimum Order Quantity (“MOQ”) per Purchase Order equal to one
truck load, except that Buyer and Seller shall agree on commercial reasonable MOQ per Purchase Order when needed.
D. Exclusivity. This Agreement shall not impose any obligation of exclusivity on either party hereto, and each party shall be free to purchase and
sell goods and services similar or identical to the Products from and to third parties, at its sole discretion. This Agreement is neither a requirement
nor an output contract.
A. Amount; Adjustment. During the Initial Term, Seller shall sell the Products to Buyer at the purchase prices set forth on Exhibit “A” (as such
prices may be adjusted hereunder, “Purchase Price(s)”). Seller may change the Purchase Prices for a Product upon ninety days prior written
notice to Buyer. All Purchase Price adjustments under this Section shall be subject to the terms of Section 3.D.
B. All-Inclusive. The Purchase Price for each Product shall be all-inclusive and represents the sole and exclusive consideration to Seller hereunder
for the Products or otherwise, except for (i) freight and insurance costs for which Buyer is responsible (collectively, “Freight Charges”), and (ii)
certain taxes assessed on the Purchase Prices for which Buyer is responsible under Section 3.C. Buyer shall not be billed for, nor shall Buyer have
any obligation to pay, any charge or amount not specifically authorized in Buyer’s duly issued Purchase Order. Any additional terms or conditions
contained on any Seller invoice or packing slip shall not be binding on Buyer, and no action by Buyer (including the payment of any such invoice in
whole or in part) shall be construed as binding Buyer with respect thereto. Any additional terms or conditions contained on any Buyer Purchase
Order or any Seller invoice or delivery manifest (collectively, “Order and Fulfillment Documentation”) shall not be binding on Seller or Buyer, as
applicable. No action by Seller (including the fulfillment of such Purchase Order in whole or in part) or Buyer (including the acceptance of a delivery
of Products) shall be construed as binding Seller or Buyer, as applicable with respect to any additional terms or conditions included in any Order
and Fulfillment Documentation.
C. Taxes. Buyer shall pay and be responsible for all taxes that are measured directly by the Purchase Price payments made by Buyer to Seller for
the Products hereunder and which Seller is legally required to collect and pay over to tax authorities. The taxes for which Buyer is responsible
hereunder shall include sales, use and excise taxes, but shall exclude, without limitation, Seller’s franchise or business taxes, taxes based on
Seller’s net income or gross receipts, and taxes from which Buyer is exempt by law as shown by a valid tax exemption certificate, when such a
certificate is required.
D. Preferred Customer Pricing. Notwithstanding anything contained herein to the contrary, Seller hereby represents and warrants to Buyer that
the Net Effective Price for each Product hereunder shall not exceed the lowest Net Effective Price for such Product offered by Seller to any of its
other customers in the Territory for substantially equivalent purchases on substantially equivalent terms. The term “Net Effective Pricing” shall be
defined as the totality of (a) the price for such Product and (b) all other economic terms including credits, rebates, refunds, purchase volumes,
purchase commitments, discounts and allowances and whether or not such Product is being sold bundled with any other Seller products. If Seller
extends a lower Net Effective Price for any Product to any other customer in the Territory, Seller will notify Buyer thereof within five business days
of such offer and shall reduce the Net Effective Price to such price effective as of the date of such sale.
E. Effective Date of Purchase Price Decreases. All decreases in Purchase Prices shall be immediately effective as to all outstanding Purchase
Orders for Products not yet shipped to Buyer (“Pending Purchase Order(s)”) and all future Purchase Orders.
F. Effective Date of Purchase Price Increases. No increase in Purchase Prices hereunder shall be effective as to any Purchase Order issued prior to
expiration of the notice period required hereunder for such increase. Seller shall honor all Purchase Prices prevailing hereunder at the time Buyer
issues its Purchase Order.
G. Cost Reductions.
The parties agree to engage in annual price negotiations with respect to the Products.
4.DISCONTINUATION AND MODIFICATION OF PRODUCTS
A. Discontinuation Notices. Seller shall continue to offer all Products for sale to Buyer during the Initial Term. Seller may discontinue supplying
Products to and for Buyer (each, a “Discontinued Product”) during any Renewal Term upon ninety days prior written notice to Buyer (each, a
“Discontinuation Notice”); provided, however, that notwithstanding such Discontinuation Notice, Seller shall continue to make each Discontinued
Product available for purchase by Buyer hereunder for so long as Seller continues to supply such Discontinued Product to any of its other
B. Product Modifications. Seller will use its best efforts to assure that all
Products that are modified after the Effective Date (“Modified Product(s)”) shall be “compatible” (as defined herein) in such modified form with
products prior to the modification thereof. In all cases where Seller cannot assure that Modified Products will be compatible with Existing Systems,
Seller will provide Buyer with ninety (90) days written notice in advance of Seller’s implementation of such modification, and will use its best
efforts to continue to supply compatible Products.
A. Generally. Buyer shall purchase only those Products set forth on Purchase
Orders duly issued by an authorized representative of Buyer’s Purchasing Department. Each Purchase Order shall, at a minimum, specify the
following information for each Product listed thereon: (i) the SKU number and Product name; (ii) the quantity ordered; (iii) the total Purchase
Price; (iv) shipping instructions; (v) the final delivery destination (the “Delivery Destination”); and (vi) the required delivery date for the Product at
the Delivery Destination (the “Delivery Date”). Purchase Orders shall be submitted to Seller in writing and may be sent electronically, by facsimile,
or by mail.
B. Rescheduling Purchase Orders. Buyer may, free of charge, reschedule the Delivery Date for any Product at least two B. Rescheduling Purchase
Orders. Buyer may, free of charge, reschedule the Delivery Date for any Product at least two business days prior to Seller’s shipment thereof by
providing Seller with notice thereof (the “Rescheduling Notice”) business days prior to Seller’s shipment thereof by providing Seller with notice
thereof (the “Rescheduling Notice”) electronically, by facsimile, or by mail. The new Delivery Date specified in such Rescheduling Notice shall then
become electronically, by facsimile, or by mail. The new Delivery Date specified in such Rescheduling Notice shall then become the new Delivery
Date for the Purchase Order, which shall in all other respects remain in full force and effect.the new Delivery Date for the Purchase Order, which
shall in all other respects remain in full force and effect.
C. Cancellation of Purchase Orders. Buyer may cancel any Purchase Order in whole or in part, without further obligation or liability to Buyer, at any
time at least two business days prior to Seller’s shipment of the Products covered by such Purchase Order by providing Seller notice of such
cancellation electronically, by facsimile, or by mail. Buyer may not cancel any Purchase order for Custom Products without Seller’s consent.
6.SHIPMENT AND DELIVERY
A. Packing. All Products shall be prepared, marked, and packed for shipment on full trailers, baled with plastic strapping so the Product can be
handled using standard fork lifts.
B. Shipping Terms; Freight Charges. Seller shall fill each Purchase Order in accordance with its terms and the provisions hereof.
C. Shipping Delays. Seller will immediately notify Buyer in writing of any event or condition that could delay delivery of the Products beyond the
Delivery Date; provided, however, that such notification shall not require Buyer to accept any late shipment or waive any of its rights or remedies
with respect thereto.
D. Time of the Essence. Seller acknowledges and agrees that time is of the essence with respect to Seller’s performance under this Agreement.
E. Excess and Premature Product. Buyer shall not be obligated to accept: (i) any Products in excess of the quantity ordered in its Purchase Order
(“Excess Product(s)”), (ii) deliveries arriving more than one day in advance of the Delivery Date specified on the Purchase Order (“Premature
7.INSPECTION AND ACCEPTANCE
A. Inspection and Acceptance. Buyer will unload and inspect the Product within 24 hours from delivery and give notice to the Seller of any
discrepancies from the Purchase Order.
9.BILLING AND PAYMENT
A. Billing. Invoices. Seller shall invoice Buyer for all Products at the time of shipment. Seller shall issue a separate invoice for each Purchase Order
containing the following information (“Invoice(s)”): (i) the SKU number, description and quantity of Products ordered; (ii) the quantity of Products
shipped; (iii) the Delivery Destination; (iv) the Purchase Order number, (v) the Purchase Price for each Product; (vi) the total Purchase Price for
the Purchase Order; and (vii) any applicable taxes, and discounts. All Invoices, bills of lading, and freight bills for the Products shall be delivered to
Buyer at the following address: (“Bill To” address shall be shown on the face of Buyer’s Purchase Order.)
B. Payment. In the event of a conflict between the pricing on Exhibit “A” and a price mutually agreed to in writing by the parties on the Purchase
Order or otherwise, the mutually agreed upon price shall prevail. Subject to the terms and conditions contained herein, Buyer will remit payment
of the Purchase Price due hereunder (less any applicable discounts or offsets) for each Conforming Product within forty five days of the Invoice
date, provided however that the Invoice date shall not be earlier than the date the Products are actually shipped from the agreed to delivery
point to Buyer. All invoiced amounts shall be subject to a two percent (2%) early payment discount for all payments remitted by Buyer within
seven days of Buyer’s receipt of such invoice. Buyer shall not waive any payment discount under this Agreement if, for example (without
limitation): (i) Product shipment is delayed beyond the discount period; (ii) Products are not shipped on the date that the corresponding Invoice is
sent to Buyer; or (iii) the shipping time exceeds the discount period.
C. Credits. Within thirty days of Seller’s receipt of a request for a credit or refund hereunder from Buyer (each, a “Credit Request”), Seller will
either (i) issue a credit in the full amount of the Credit Request; or (ii) deliver a written explanation to Buyer detailing Seller’s reasons for refusing
to grant the credit or granting such credit in an amount less than the Credit Request. If Seller fails to do (i) or (ii) within the thirty day period
provided above, then Buyer shall be deemed to be due a credit in the full amount of the Credit Request. Buyer may reduce and offset any amount
due Seller from Buyer hereunder by the amount of any credit, refund, or other amount due Buyer from Seller hereunder.
10., 11. [Omitted]
12.INDEMNITY AND INSURANCE
A. Indemnity. Seller shall be solely liable for, and shall defend, indemnify, and hold Buyer, its Affiliates, and all of their respective directors, officers,
employees, agents, and independent contractors (all of the foregoing entities
and individuals being collectively referred to herein as the “Indemnitees”) harmless from and against any and all damages, liabilities, injuries,
losses, and costs (including reasonable attorneys and experts fees at trial and on
appeal), and expenses (collectively, “Liability”) which may be incurred by, asserted against, or recoverable from any Indemnitee as a result of any
actual or threatened action, suit or proceeding arising out of or relating to any of products delivered by Seller and not resold by the Buyer.
B., C. [Omitted]
D. Insurance Policies. Seller agrees to obtain and maintain the following insurance policies throughout the Term at Seller’s sole cost and expense
(collectively, “Insurance Policies”):
(i)Commercial General Liability Insurance, covering Liability for property damage, personal injury, and death arising out of operations, products-
ompleted operations, independent contractors, and containing broad form contractual liability coverage, with minimum limits of $1 million per
occurrence (the “CGL Policy”);
(ii)Automobile Liability Insurance covering Liability arising out of any auto (including owned, hired, and non-owned autos) with minimum limits of
$1 million per occurrence combined single limit (the “Auto Liability Policy”);
(iii)Statutory Workers’ Compensation insurance as required by applicable law (the “Workers’ Compensation Policy”); and
(iv)Employer’s Liability Insurance with minimum limits of $100,000 for each accident, and $500,000 for each employee (the “Employers Liability
E. Insurance Policy Requirements. Buyer shall be named as an additional insured on the CGL Policy and Auto Liability Policy for all operations of
Seller hereunder and for all Liability for which Seller is responsible under this Agreement. The CGL Policy and Auto Liability Policy shall contain
standard cross liability clauses, and Seller shall cause such policies to be endorsed to provide contractual liability coverage specifically covering
this Agreement as n insured contract, if necessary, to obtain coverage of this Agreement thereunder. The Workers Compensation Policy and
Employers Liability Policy shall each be endorsed to waive any right of subrogation against Buyer. All Insurance Policies shall: (i) be primary
without right of contribution from any insurance maintained by Buyer; (ii) be issued by duly qualified insurance carriers reasonably satisfactory to
Buyer; (iii) require that Buyer be given at least thirty days prior written notice of cancellation, non-renewal, or any material change therein; and
(iv) require that Seller provides a yearly renewal certificate within thirty days of expiration of current policy.
F. Insurance Certificates. A Certificate of Insurance evidencing the Insurance Policies required by this Agreement is attached hereto as Exhibit “B”.
G. Limitation of Liability. Notwithstanding anything to the contrary in this Agreement:
(i)EXCEPT FOR A PARTY’S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY, AND FOR LIABILITY OWED TO A THIRD PARTY FOR A CLAIM THAT IS
SUBJECT TO INDEMNIFICATION UNDER SECTION 12.A HEREOF, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ITS AFFILIATES
HEREUNDER FOR ANY CONSEQUENTIAL DAMAGES (INCLUDING ANY AND ALL SUCH DAMAGES FROM BUSINESS INTERRUPTION, LOSS OF PROFITS OR
REVENUE, COST OF CAPITAL OR LOSS OF USE OF ANY PROPERTY OR CAPITAL), EVEN IF INFORMED OF THE POSSIBLITY OF SUCH DAMAGES. By way
of clarification, in no event shall Seller be liable to Buyer or its Affiliates for any indirect or consequential losses or damages (including lost profits
or lost revenues) (i) suffered by Buyer or its Affiliates or (ii) suffered by any third party end user or customer of Buyer or its Affiliates and subject
indemnification under Section 12.A hereof.
(ii)TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 12.G SHALL APPLY,
REGARDLESS OF WHETHER SUCH CONSEQUENTIAL DAMAGES ARISE FROM BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLGIENCE), BY
OPERATION OF LAW OR OTHERWISE.
(iii)EACH SELLER’S AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY DIRECT DAMAGES SHALL NOT EXCEED THE PURCHASE PRICE PAID OR
PAYABLE BY ALL BUYERS TO SUCH SELLER UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING
RISE TO SUCH LIABILITY.
H. Exclusions. Notwithstanding anything in this Agreement to the contrary, Section 12.G shall not apply to (and each party shall retain unlimited
liability for) any Third Party Claims to the extent arising out of, relating to, or covered by any of the following: (A) any indemnity for or against a
Third Party Claim given by a party hereunder, (B) a party’s gross negligence, willful misconduct or violation of the law, or (C) personal injury or
A. Generally. In addition to the obligations in any separate non-disclosure or confidentiality agreement entered into between the parties, in
connection with the performance of this Agreement, Seller and Buyer may disclose certain information to one another. All such disclosures of
information shall be deemed non-confidential by the receiving party unless such information pertains to the disclosing party or its business and
satisfies all of the following requirements (“Confidential Information”): (i) such information is in written or graphic form, (ii) such information is
owned or controlled by the disclosing party, and (iii) such information was not previously published or disclosed to others without restrictions.
Seller and Buyer each agree not to use, other than for purposes related to this Agreement, or disclose to third parties (except on a “need to
know” basis), any Confidential Information, in each case, during the Term and for a period of five years thereafter; provided the confidentiality
obligations hereunder shall continue with respect to trade secrets of a party for so long the information constitutes a trade secret of the party.
Notwithstanding anything in the foregoing to the contrary, the following information shall not constitute “Confidential Information” hereunder,
and neither party shall have any obligation under this Section with respect thereto: (i) information already in the possession of the receiving
party at the time of disclosure hereunder; (ii) information that is independently developed by the receiving party; (iii) information that becomes
lawfully known or available to the receiving party from another source without breach of this Agreement; or (iv) information that becomes publicly
available without a breach of this Agreement by the receiving party. The standard of care for protecting Confidential Information shall be that
standard of care used by the receiving party to prevent the disclosure, publication or dissemination of its own information of a similar character.
B. No Publicity. Notwithstanding anything contained herein to the contrary, neither party may issue, make, or release any written, oral, electronic,
or other press release, advertisement, promotional material, announcement, or other statement in any medium disclosing or relating to this
Agreement, the terms of this Agreement, or any of the transactions consummated or contemplated hereunder, without the other party’s prior
written consent, which consent may be given or withheld by such other party in its sole discretion.
16.TERM AND TERMINATION
A. Term. Unless terminated earlier as provided herein, this Agreement shall have an initial term of twenty four months, commencing on the
Effective Date (the “Initial Term”). After expiration of the Initial Term, this Agreement shall automatically renew on the terms and conditions
contained herein for successive twelve month periods, the “Renewal Term,” each commencing on the anniversary date of the Effective Date
(each, an “Anniversary Date”), unless either party gives written notice of non-renewal no less than sixty days prior to expiration of the then
current Term. The Initial Term, taken together with any Renewal Term, shall be referred to herein as the “Term,” and each successive twelve
month period of the Term commencing on the Effective Date and each Anniversary Date thereafter shall be referred to herein as a “Year.”
B. Termination without Cause. In addition to all of its other termination rights hereunder, either party may terminate this Agreement, in whole or
in part, at any time during any Renewal Term, without cause, upon one hundred and eighty days notice to the other party hereto. Upon any such
termination, Buyer shall (i) remit payment of the Purchase Price due hereunder for any open Purchase Orders that are not otherwise cancellable
hereunder (subject to any other rights of return and cancellation as expressly set forth herein). Neither Seller nor Buyer shall have any further
obligation or liability to the other for any terminated Pending Purchase Orders.
C. Defective Products. Buyer may cancel any Purchase Order, in whole or in part, with respect to any Defective Product or any Undelivered
Product. Upon any such cancellation, Buyer shall have no further obligation or liability to Seller with
respect to the cancelled portion of such Purchase Order. Such cancellation shall be without prejudice to Buyer’s other remedies under this
Agreement, at law, or in equity.
D. Termination for Default. A party shall commit an “Event of Default” under this Agreement if: (i) such party fails in any material respect to
perform or keep any of its material obligations or covenants hereunder, or otherwise materially breaches this Agreement, and fails, in each case,
to cure such failure or breach within thirty days after its receipt of written notice thereof from the other party; (ii) any representation or warranty
made by such party herein is false or inaccurate in any material respect when made, or becomes false or inaccurate in any material respect
thereafter; or (iii) such party files a petition in bankruptcy, or has filed against it an involuntary petition in bankruptcy not dismissed within sixty
days after filing, or applies for or consent to the appointment of a receiver, custodian, trustee or liquidator, or makes a general assignment for
the benefit of creditors. If a party commits an Event of Default (the “Defaulting Party”), then the other party (the “Non-Defaulting Party”) may
terminate this Agreement upon written notice to the Defaulting Party. Such termination shall be without prejudice to the Non-Defaulting Party’s
other rights and remedies under this Agreement, at law, or in equity.
E. Effect of Termination on Purchase Orders. Seller will honor all Purchase Orders issued by Buyer and accepted or deemed accepted by Seller
prior to any termination or expiration of the Term.
A. Scope. All of the compliance provisions set forth below shall apply to the Agreement and any related Exhibit or Schedule.
B. No Improper Means of Obtaining Business. Buyer and Seller intend that no payments or transfers of value shall be made which have the
purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion or kickbacks, or other unlawful or improper means of
C. No Bribes. Seller will not, directly or indirectly, pay, offer, authorize or promise any monies or anything of value (such as gifts, contributions,
travel, or entertainment) to any person or organization, including any employee of Seller’s or Buyer’s customers, or any “Government Official”
(which includes any employee or official of any governmental authority, government owned or controlled entity, public international organization
or political party; or any candidate for political office) for the purpose of improperly influencing their acts or decisions. Seller will take appropriate
actions to ensure that any person representing or acting under its instruction or control (“Seller’s Agents”) will also comply with this Section.
D. No Kickbacks. No part of the payment of any amounts payable under this Agreement will be distributed to Buyer, its affiliates or customers, or
any of its employees or their family members.
E. No Conflicts. Except as disclosed in writing to Buyer (in a questionnaire response or otherwise), Seller represents that it does not have any
reason to believe that there are any potential conflicts of interest regarding its relationship with Buyer, such as family members who could
potentially benefit from the commercial relationship established by this Agreement; and neither Seller, nor any of Seller’s Agents, are or have any
family members who are Government Officials in a position to influence Seller’s commercial relationship with Buyer.
F. Accurate Books and Records. Seller will maintain complete and accurate books and records in accordance with generally accepted accounting
principles in Seller’s jurisdiction, consistently applied, properly and accurately recording all payments made by Seller or Seller’s Agents in
performance of this Agreement or related to it, and any commission, compensation, reimbursement, or other payment made by or on behalf of
Buyer to Seller or Seller’s Agents. Seller will maintain a system of internal accounting controls reasonably designed to ensure that it maintains no
off-the-book accounts and that its assets are used only in accordance with its management directives. All Books and Records shall be available for
inspection, copying, and audit by Buyer or its designee during Seller’s normal business hours on reasonable notice throughout the Term and for
three years thereafter for the purpose of verifying Seller’s compliance with the terms hereof. Buyer shall bear and pay for the cost of any such
audit of Seller’s Books and Records unless such audit discloses errors in excess of five percent in favor of Buyer, in which case the cost of the
audit shall be borne by Seller.
G. Notification. Seller will notify Buyer promptly if (a) Seller or any of Seller’s Agents have reason to believe that a breach of this Section has
occurred or is likely to occur; or (b) if any conflicts of interest arise after the signing of this Agreement, including if any of Seller’s Agents or their
family members become a government official or political party candidate in a position to influence Seller’s commercial relationship with Buyer.
Seller will send all such notices to such location as Buyer may designate in writing.
H. Compliance Certification. Seller will, when and as may be requested by Buyer from time to time, provide to Buyer a written certification in form
and substance satisfactory to Buyer that Seller is in compliance with this Section.
I. No Payments for Improper Activities. Buyer will not be required under any circumstances to take any action or make any payments that Buyer
believes, in good faith, would cause it or its affiliated companies to be in violation of any “Anti-Corruption Laws” (Anti-Corruption Laws include,
collectively, the United States Foreign Corrupt Practices Act, laws under the OECD Anti-Bribery Convention and local anti-corruption laws). If Buyer
at any time believes, in good faith, that a breach of any of the representations and warranties in this Section has occurred or may occur, Buyer
may withhold any commission, compensation, reimbursement, or other payment until such time as Buyer has received confirmation to its
reasonable satisfaction that no breach has occurred or will occur. Buyer shall not be liable to Seller for any claim, losses, or damages whatsoever
related to Buyer’s decision to withhold any commission, compensation, reimbursement, or other payment under this provision.
J. Audit Rights. If Buyer at any time believes, in good faith, that Seller has breached the warranties, representations or agreements in this
Section, then Buyer will have the right to audit Seller’s books and records related to this Agreement in order to verify Seller’s compliance with the
provisions of this Section. The audit will be performed by individuals selected by Buyer. However, upon request by Seller, Buyer will select in its
sole discretion an independent third party to conduct an audit in order to certify to Buyer that no breach has occurred or will occur. Seller will fully
cooperate in any audit conducted by or on behalf of Buyer.
K. Termination Rights. Any breach of the warranties, representations or agreements in this Section will constitute grounds for immediate
termination of this Agreement for cause by Buyer and no commission, compensation, reimbursement or other payment will be due to Seller. Seller
will indemnify and hold Buyer harmless against any actions, legal claims, demands, proceedings, losses, damages, costs, expenses and other
liabilities of whatever nature resulting from Seller’s breach of the representations, warranties and agreements contained in this Section.
L. Data Privacy Consent. Seller consents to the collection, processing and transfer of data and information related to the business relationship
between it and Buyer, including the transfer of personally identifiable data (for example names, email addresses, telephone numbers) to and
between Buyer and its affiliates and other businesses requiring credit or similar trade references. Seller has the right to: (a) request access to
this data; (b) rectify or cancel any inaccurate or expired data; and (c) object to any processing that does not conform to these purposes. Seller
exercise its rights by writing to Buyer.
M. Data Privacy. Seller represents and warrants that it has developed and continues to maintain a comprehensive written information security
program consistent with industry standards to ensure the security and confidentiality of “Personal Information” and prevent its unauthorized use
or disclosure. “Personal Information” shall be defined as information of Buyer’s customers/employees, including but not limited to, protected
health or any personally identifiable information, which can potentially be used to identify, contact, or locate a single person, consumer report
information, and any processed data incorporating such information. Seller shall cause its subcontractors and third party vendors to comply with
these legal requirements.
18. GENERAL PROVISIONS
A. Entire Agreement; Amendment. Attached Exhibits “A,” “B,” ,“F” and any other exhibit attached hereto as provided herein are all hereby
incorporated as a part of this Agreement (collectively, the “Exhibits”). This
Agreement, together with the Exhibits and any other documents specifically incorporated by reference herein set forth the complete and final
agreement and understanding of the parties relating to the subject matter hereof, and supersede and merge all prior and contemporaneous
agreements, negotiations, and understandings between the parties, both oral and written. The terms of this Agreement shall supersede any
terms and conditions in any acknowledgment form, invoice, or other document of Seller. Neither party has relied upon any agreement,
understanding, representation, warranty, nor covenant not expressly set forth in writing herein. Subject to modifications permitted to Exhibit “A”
in accordance with Section 1, this Agreement may be amended only by a written instrument duly executed by both parties, and may not be
amended orally or course of performance.
B. Compliance with Laws. Each party shall perform its obligations hereunder in compliance with all applicable laws, regulations, and other legal
requirements, including but not limited to, laws or regulations related to restrictions on the use of hazardous substances.
D. Seller Import Requirements. Seller acknowledges and agrees that some of the materials being sold may have been imported into the United
States prior to selling them to Buyer. Seller represents and warrants that it is familiar with any and all governmental import requirements as they
relate to the Products and that Seller shall fully comply with these requirements. Seller further agrees that it will maintain any and all
documentation generated in relation to its compliance with the import
requirements for a period of ten years after the import date of the Products or any component part thereof. Seller shall provide copies of any such
documentation to Buyer within seven business days of Buyer’s written request for said documentation. Seller agrees to indemnify, defend and
hold harmless Buyer from and against any losses, damages, claims, liabilities, judgments, suits, proceedings, costs and expenses, including but
not limited to, reasonable attorneys’ fees, civil fines and/or other penalties issued against Buyer, alleged to have arisen out of or arising out of
Seller’s failure to comply with governmental import requirements and/or the requirements of this paragraph. Seller shall promptly and fully notify
Buyer in the event that it receives an inquiry or any other notice from a governmental agency regarding Seller’s compliance with any and all
import requirements as they relate to the Products or any component part thereof.
In addition to the Seller Import Requirements provided herein:
(i)Seller acknowledges to have understood Buyer’s position of no transactions with Cuba, Iran, North Korea, Sudan, and Syria (“Buyer’s
Position”), and confirms that Seller will comply with Buyer’s Position on all transactions;
(ii)Seller agrees not to transfer any products or technical information or services to any other countries except in full compliance with all applicable
governmental requirements, including but not limited to applicable US export, US re-export legislation, or the government agencies of any other
(iii)Any violation by Seller of the applicable laws or regulations of the US or any other government, or where Seller breaches Buyer’s Position
notwithstanding whether or not this is contrary to any aforementioned applicable laws or regulations, shall be deemed a material breach of
this Agreement and sufficient basis for Buyer to terminate this Agreement. Compliance with applicable legal requirements and Buyer’s Position is
a prerequisite of the Agreement for Seller, to perform its obligations under this Agreement, and if Seller fails to comply with such legal
requirements, then Seller is incapable of meeting its obligations under any Agreement with Buyer and therefore is in breach of contract.
E. Cumulative Rights and Remedies. Each party’s rights and remedies hereunder shall be cumulative with, and may be exercised without prejudice
to, such party’s other rights and remedies under this Agreement, at law, or in equity.
F. Survival. Sections 12.A, 12.G., 12.H, 14, 17, 18, and each other term and provision of this Agreement that would by its very nature or terms
survive any termination or expiration of this Agreement, shall survive any termination or expiration of this Agreement, regardless of the cause
thereof, and even if resulting from the material breach of either party hereto.
G. Notices. All notices of default, breach, renewal or termination of this Agreement required or permitted hereunder (collectively, “Notices”) shall
be (i) in writing, (ii) sent to the other party at the address listed below, or to such different address as such party may designate in writing on
thirty days prior written notice to the other party, and (iii) transmitted to the other party via hand-delivery, nationally recognized commercial
overnight courier, or United States registered or certified mail, postage prepaid, return receipt requested. Notices shall be deemed given when
actually delivered to the recipient party or when such recipient party refuses delivery thereof as shown on the delivery receipt. All Notices shall be
directed to the attention of Parties listed at the address designated herein. Notwithstanding the foregoing, other communications between the
parties, such as Purchase Orders, acknowledgements and confirmations, may be sent by facsimile communication.
Addresses for Notices:
H. Injunctive Relief. Each party acknowledges and agrees that any breach by it of Sections 14 or 15 will cause the non-breaching party irreparable
harm for which there shall be no adequate legal remedy. Consequently, in the event of any actual or threatened breach of Sections 14 or 15 by
either party, the non-breaching party shall be entitled to injunctive and all other appropriate equitable relief (including a decree of specific
performance), without prejudice to its other rights and remedies under this Agreement, at law, or in equity.
I. Independent Contractors. Each party shall be an independent contractor of the other party. Nothing in this Agreement shall create, or be
construed as creating, a joint venture, partnership, agency, or employment relationship between the parties hereto. Neither party shall have any
right or authority to assume or create any obligations of any kind or to make any agreements, representations, or warranties on behalf of the
other party, whether express or implied, or to bind the other party in any respect whatsoever.
J. Subcontractors. Prior to subcontracting any of the Services, Seller shall notify Buyer of the proposed subcontract and shall obtain Buyer’s
written approval of such subcontract. In no event shall any subcontract release Seller from its responsibility for its obligations under this
Agreement and Seller shall indemnify Buyer to the extent provided for in Section 12 of this Agreement. Seller shall be responsible for the work
and activities of its employees, agents and subcontractors, including compliance with the terms of this Agreement. Seller shall be responsible for
all payment to its employees, agents and subcontractors. Seller shall promptly pay for all services, material, equipment and labor used by Seller in
providing the Services and Seller shall keep Buyer’s premises, and any deliverables from Seller to Buyer, free of all liens.
K. Binding Effect; No Third Party Beneficiaries. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns. This Agreement is for the sole and exclusive benefit of the parties to this Agreement, Buyer’s
Affiliates, Buyer’s customers, and all of their respective successors and permitted assigns. Nothing contained herein shall be construed to give
any person not a party to this Agreement (other than Buyer’s Affiliates and customers) any legal or equitable right, remedy, interest, or claim
under or with respect to this Agreement.
L. Force Majeure. Neither party shall be liable to the other party for any failure or delay in its performance hereunder to the extent resulting from
causes beyond its reasonable control, including acts of God, fire, natural disasters, or acts of government, or terrorism (each, a “Force Majeure”),
provided that such non-performing or delayed party gives the other party prompt written notice of the Force Majeure.
M. Assignment. Neither party shall transfer, assign, subcontract or delegate, in whole or in part, any of its rights or obligations under this
Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld. Notwithstanding the foregoing,
either party may freely assign this Agreement to an Affiliate, or to a purchaser of or successor to all or substantially all the assets of such party,
whether through sale, merger, restructuring or otherwise. Any other attempt by either party to effect any assignment, subcontract, delegation, or
transfer of this Agreement or any right or obligation hereunder in the absence of the other party’s prior written consent shall be null and void.
N. Legal Costs and Expenses. If any suit or legal proceeding is brought by either party to enforce any of the terms of this Agreement or any of its
rights hereunder, the prevailing party in such action or proceeding shall be entitled to recover all of its reasonable costs and expenses incurred in
such suit or legal proceeding, including reasonable attorneys’ fees.
O. Severability. In the event that any provision of the Agreement is determined by a court of competent jurisdiction to be illegal, invalid or
otherwise unenforceable, under applicable law, such provision shall be deemed severed from this Agreement, and all remaining provisions shall
remain binding, enforceable, and in full force and effect.
P. Waiver. No waiver of any provision of this Agreement (or any right or default hereunder) shall be effective unless in writing and signed by the
party against whom such waiver is sought to be enforced. Any such waiver shall be effective only for the instance given, and shall not operate as
a waiver with respect to any other rights or obligations under this Agreement or applicable law in connection with any other instances or
R. Counterparts. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which together
shall constitute one and the same instrument.
S. Diversity. Seller acknowledges that diversity among the suppliers from whom Buyer purchases goods and services is important to Buyer.
T. Construction. Terms defined herein in the singular shall have a comparable meaning when used in the plural, and vice versa. As used herein,
the words, “include, includes, including,” and all variations thereof shall be deemed to mean “including, but not limited to.” As used herein, the
word “or” shall be deemed to include the meaning “and/or.” The terms “herein, hereof, hereunder, hereto, herewith” and other similar terms shall
be deemed to refer to this Agreement. All references to Sections in this Agreement shall refer to the corresponding Section in this Agreement and
all subsections contained therein. All captions contained in this Agreement are for convenience only and shall not be deemed to be part of this
Agreement. Each party has substantially participated in the drafting and negotiation of this Agreement, and no provision hereof shall be
construed against either party by virtue of the fact that such provision was drafted by such party.
U. Choice of Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Nevada, without reference to
its choice of law rules. Any claim or litigation brought under or relating to this Agreement shall be brought in a court of competent jurisdiction
located in Clark County, Nevada.
IN WITNESS WHEREOF, the parties have caused this Master Supply & Purchasing Agreement to be duly executed by each of their duly authorized
representatives as of the Effective Date.
Products and Prices.
The product is bailed plastic materials consisting of ___________________________________, priced at $____ per Pound, delivered to the
Seller Insurance Certificate Copy.