Terms and Conditions

1. Applicability.

(a) From time to time, __________________________, an Ohio limited liability company (“Buyer”) may issue purchase orders to the party to whom the purchase order is addressed (“Seller”) to purchase the goods specified on the face of the applicable purchase order (the “Goods”). These General Purchase Order Terms and Conditions (the “Terms”) govern all of Buyer’s purchase of Goods from Seller (these Terms together with the applicable purchase order’s terms, collectively constitute the “Order”). The applicable Order, together with any documents incorporated herein by reference, constitutes the parties’ sole and entire agreement regarding such Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, regarding the Order’s subject matter. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with the applicable Order. (b) These Terms apply to any repaired or replacement Goods provided by Seller hereunder.

2. Acceptance.

The Order is not binding on Buyer until Seller accepts the Order in writing or by performance. Buyer may withdraw the Order at any time before Seller accepts it.

3. Delivery Date.

Seller shall deliver the Goods in the quantities, to the delivery location, and on the date(s) specified in the applicable Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing Notice (as defined below) to Seller, and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.

4. Quantity.

If the quantity of Goods Seller delivers does not conform to the quantity specified in the Order, Buyer may reject any excess Goods. Buyer shall return any such rejected Goods to Seller at Seller’s risk and expense. If Buyer accepts such nonconforming delivery of Goods, the Price for the Goods shall be adjusted on a pro-rata basis based on the quantity actually delivered.

5. Title And Risk Of Loss.

Delivery shall be made F.O.B. delivery location. Title passes to Buyer upon delivery of the Goods to the delivery location specified in the Order. Seller bears all risk of loss or damage to the Goods until the Goods are delivered to such delivery location.

6. Amendment And Modification.

No modification or change to an Order is binding upon Buyer unless it is in a writing that specifically states that it amends the applicable Order and is signed by Buyer’s duly authorized representative.

7. Inspection And Rejection Of Nonconforming Goods.

Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including freight. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate the applicable Order for cause pursuant to Section 15. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

8. Price.

The price of the Goods is the price stated in the Order (the “Price”). Unless otherwise specified in the Order, the Price includes all packaging, transportation costs, insurance, customs duties and fees and applicable taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.

9. Payment Terms.

On or after the completion of delivery, and in accordance with these Terms, Buyer shall pay Seller all amounts due for accepted Goods within thirty (30) days of the acceptance of the Goods by Buyer. Buyer reserves the right to dispute any invoiced amount in good faith. Buyer may withhold any disputed amounts pending resolution of the dispute. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.

10. Setoff.

Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.

11. Warranties.

Seller represents and warrants that:

a. each and every Good sold and delivered to Buyer by Seller was acquired by legal means;

b. Seller has good and marketable title and lawfully possesses each Good contained in any shipment or other delivery of Goods hereafter made by Seller to Buyer or on its behalf;

c. at the time of sale, Seller has 100% possessory interest in each and every Good sold and delivered to Buyer;

d. Seller has the legal right to sell all such Goods to Buyer; and

e. upon delivery to Buyer, all right, title and interest in and to all Goods will vest exclusively in Buyer free of all liens and other encumbrances.

12. Indemnification.

Seller shall defend, indemnify and hold harmless Buyer and its affiliates, directors, officers, employees and agents (collectively, “Indemnitees”) from and against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorneys fees, and the cost of enforcing any right to indemnification hereunder (collectively, “Losses”) arising out of or occurring (a) in connection with the Goods sold to Buyer; (b) Seller’s negligence, willful misconduct or breach of the Terms, including, without limitation, the warranties set forth in Section 11; or (c) any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

13. Compliance With Law.

Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Buyer may terminate an applicable Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.

14. Termination.

Buyer may terminate an Order, in whole or in part, at any time with or without cause for undelivered Goods on [five (5)] days’ prior Notice (as defined below) to Seller. Buyer may terminate an Order with immediate effect upon written notice to Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Buyer may terminate any one or more Order upon written notice to Seller. If Buyer terminates an Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.

15. Waiver.

No waiver by any party of any of the provisions of any Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

16. Confidential Information.

All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, plans, drawings, documents, data, business operations, customer lists, customer information, pricing, discounts or rebates, or other transaction details disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with an Order is confidential, solely for the use of performing such Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return (or at Buyer’s explicit request destroy) all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.

17. Assignment.

Seller shall not assign any Order without Buyer’s prior written consent, which it may withhold in its sole discretion. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve Seller of any of its obligations hereunder.

18. No Third-party Beneficiaries.

19. Governing Law.

All matters arising out of or relating to any one or more Orders shall be governed by and construed in accordance with Ohio law, without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of any state law other than Ohio law.

20. Submission To Jurisdiction.

Any legal suit, action or proceeding arising out of or relating to any Order shall be instituted in either the state or federal courts in Hamilton County, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding related to any Order.

21. Cumulative Remedies.

The parties’ rights and remedies under each Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

22. Notices.

All notices and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the applicable Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic mail or other electronic messaging (i.e., WhatsApp), certified or registered mail (in each case, return receipt requested, postage prepaid). All notices will be effective upon receipt or refusal thereof; provided, the party giving the Notice has complied with the requirements of this Section.

23. Severability.

If any term or provision of an Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or other Order, or invalidate or render unenforceable such term or provision in any other jurisdiction.

24. Survival.

Provisions of the applicable Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of the applicable Order including, but not limited to, the following provisions: Setoff, Warranties, General Indemnification, Intellectual Property Indemnification, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.