Terms Of Purchase

Terms and conditions of purchase

1. Application

These Terms and Conditions of Purchase ("Terms and Conditions") apply to any and all purchasing activities by NATIONAL FOOD GROUP, INC., a Michigan corporation and its related companies, agents and/or representatives (collectively, the "Purchaser") and to any and all services performed and/or Goods sold or provided by Seller to Purchaser.

Any terms or conditions of Seller which are contradictory or supplementary to, or which deviate from these Terms and Conditions, or any objection, agreement or other attempt by Seller purporting to add to or modify these Terms and Conditions, shall not apply or be binding upon Purchaser unless expressly approved in writing by Purchaser. To the extent Seller's Quotations, Invoices or any other documents or materials or any accompanying terms and conditions have additional or conflicting terms, these Terms and Conditions shall control and supersede the Seller's conflicting terms and conditions, and all such Seller's terms and conditions are hereby rejected and are expressly objected to by Purchaser without further notification. Under no circumstances is the performance of services for Purchaser or sale or provision of Goods to Purchaser, or the receipt of payment from Purchaser, shall be construed as acceptance of the Seller's terms or conditions. Any reference to the Purchaser's Terms and Conditions of Purchase shall be construed to be the reference to these Terms and Conditions.

2. Definitions

In addition to the terms defined elsewhere in these Terms and Conditions, the following terms shall have the following meanings:

• "Agreement" means the contract or agreement between Purchaser and Seller regarding the sale or provision of Goods or performance of services for the Purchaser. The Agreement consists of the front portion of the Purchase Order issued by Purchaser, any written acceptance (as modified by these Terms and Conditions) of the Purchase Oder delivered to Purchaser by Seller, any confidentiality and/or nondisclosure agreement between Seller and Purchaser, and these Terms and Conditions. The Agreement does not include any terms and conditions contained in any other Seller proposals, Quotations, or documents incorporated by reference in Seller's Quotations, Invoices or other materials. To the extent of any inconsistency between these Terms and Conditions and any confidentiality and/or nondisclosure agreement between Seller and Purchaser, these Terms and Conditions shall control and supersede. Legal relationships between Seller and Purchaser are governed exclusively by the Agreement and by accepting a Purchase Order the Seller acknowledges having actual knowledge of the clauses of these Terms and Conditions. The Agreement constitutes the entire Agreement between Seller and Purchaser with respect to this subject matter, and supersedes any and all prior understandings and agreements, written or unwritten, express or implied.
• "Documentation" shall mean information and documents provided by Purchaser to Seller, whether in paper of electronic form.
• "Goods" mean the goods identified in Purchase Order.
• "Quotation" shall mean any quotation issued by Seller to Purchaser.
• "Purchase Order" is the Purchaser's purchase order for the Seller's Goods or services.
• "Seller" shall mean the person or entity that is performing service and/or selling or providing Goods to Purchaser, and such person's or entity's agents and/or representatives.

3. Quotations

• Quotation, Accuracy. Any Quotation issued by Seller to Purchaser shall be based on the Documentation provided to Seller and shall include, without limitation, the following information: (i) description of the Goods and services, (ii) availability and pricing for the Goods and services, (iii) if any Goods or services are discounted, full and complete description of the reasons why the Goods or services are discounted, and (iv) any dating and history applicable to any and all of the Goods. Seller acknowledges and agrees that it will use best efforts to prepare the Quotation, and that it will timely advise the Purchaser of any errors, discrepancies, incorrect statements, or omissions on any Quotation.
• Quotations Binding. Any Quotation as to availability, prices and other charges is not subject to change, and all Quotations shall be binding upon Seller. Purchaser shall rely on Seller's Quotations in contracting with its customers and in issuing Purchase Orders to the Seller.
• Termination of Quotation. Any Quotation will remain valid until 11:59 P.M. Eastern Time, thirty (30) days after the date the Quotation was received by Purchaser. Any Purchase Order resulting from the Quotation may be placed within thirty (30) days of the Quotation in order for the prices set forth therein to remain firm.
• Purchaser's Forecasts and Projections. Any estimates, forecasts, or projections contained in the Documentation or any other statements, in writing or otherwise, by Purchaser regarding any current or anticipated requirements for Goods or services, are provided to Seller for informational purposes only, and are not intended to be, and are not, a commitment by Purchaser to purchase any of those requirements or otherwise comply with the given estimates, forecasts, or projections.

4. Purchase Orders, Acceptance of Purchase Orders

Any Purchase Order received by Seller from Purchaser is an offer to purchase the Goods and/or services identified in the Purchase Order, and is subject to Seller's acceptance. The Purchase Order is not binding on Purchaser until accepted by Seller. Any Purchase Order will become void at 11:59 P.M. Eastern Time, ten (10) days after the date the Purchase Order was issued by Purchaser, unless accepted by the Seller as provided herein. The Seller may accept the Purchase Order by (a) issuing a written, signed acknowledgment of its acceptance of the Purchase Order, (b) by commencing performance under the terms of the Agreement, or (c) by delivery of the Goods or providing any of the services specified in the Purchase Order. All Purchase Orders are subject to and shall be governed exclusively by these Terms and Conditions. SELLER SPECIFICALLY WAIVES ANY REQUIREMENT FOR SIGNED ACCEPTANCE OF THE PURCHASE ORDER, AND SELLER AND PURCHASER EACH WAIVE ANY DEFENSE TO THE VALIDITY AND ENFORCEABILITY OF THE PURCHASE ORDER ARISING FROM THE ELECTRONIC SUBMISSION OF THE PURCHASE ORDER TO SELLER AND SELLER'S ACCEPTANCE OF THE ORDER IN ACCORDANCE WITH THIS SECTION 4.

5. Prices

The prices stated in the Purchase Order are firm and are not subject to adjustment for changes in volume, availability, changes in the Seller's cost of Goods or services, or for any other reason, unless (a) approved in writing by Purchaser, (b) a clause specifically incorporated in the Purchase Order (with Purchaser's written consent) expressly provides that the prices will be adjusted on a particular basis, and then only to the extent specified in that clause, or (c) a document specifically incorporated in the Purchase Order (with Purchaser's written consent) expressly provides that the prices will be adjusted on a particular basis, and then only to the extent specified in that document. The Goods purchased hereunder are for resale or for an exempt purpose and may be exempt from state and local sales or use taxes. Purchaser will provide an appropriate Certificate of Exemption upon Seller's written request. Unless specifically referenced in the Purchase Order, prices do not include sales, use, excise, privilege or other taxes, shipping, packing or transportation costs or any insurance charges. Seller shall be responsible for all costs and expenses incurred in selling and/or providing the Goods and performing the services for Purchaser.

6. Payment Terms

• Payment terms are as set forth in the Purchase Order. Except as otherwise provided in the Purchase Order, Purchaser will be invoiced on a Net 30 basis upon Seller's delivery of the Goods or completion of services.
• Seller will submit correct and complete invoices or other agreed billing communications with appropriate supporting documentation and other information reasonably required by Purchaser (collectively, the "Invoice"), and the payment period set forth in the Purchase Order or in these Terms and Conditions will not commence until Purchaser has received a correct and complete Invoice which meets all of Purchaser's applicable requirements. Purchaser will use commercially reasonable efforts to assist Seller in correcting any invoice that has been rejected as incomplete or otherwise incorrect.
• All payments and references to payments for Seller's Goods and services are and shall be in US Dollars. No discounts may be taken unless specified in the Purchase Order or without the written agreement of Seller. To the extent Purchaser allows partial shipments of Goods, each shipment shall not be considered a separate and independent transaction until all of the Goods specified in the Purchase Order are delivered, and payment thereof shall be made accordingly.
• If Purchaser in good faith disputes any amount listed on the Invoice, within thirty (30) days from date of Invoice Purchaser shall (i) pay the undisputed portion of the Invoice to the Seller, and (ii) provide a description of its question(s) or objection(s) to the remainder of the Invoice. If Purchaser fails to raise a question or objection within thirty (30) days from date of Invoice, Purchaser agrees that the Invoice is accurate and fully due and payable. If Purchaser timely raises a question or objection to the Invoice, Purchaser shall pay the disputed amount or other amount agreed to by the parties in writing within ten (10) days of the resolution of the Purchaser's question(s) or objection(s) or a final decision of the court on the issue.
• Seller shall be solely responsible for any and all extra charges assessed against Goods, including without limitation, storage charges, that result out of the Seller's or any third party's acts or omissions. Purchaser has no obligation to pay for such charges on Seller's behalf. If the Purchaser elects to pay for such extra charges, Seller shall immediately reimburse Purchaser for any and all such extra charges upon request.
• Purchaser may at any time and without notice deduct, set-off, or recoup Seller's claims for money due or to become due from Purchaser against any claims that Purchaser has or may have arising out of the Agreement or any other transaction between Purchaser and Seller. Upon Seller's request, Purchaser will substantiate the basis for any deduction, set-off, or recoupment within fifteen (15) days of such request or within such other period as may be agreed upon by the parties.
• Purchaser's payment for and/or acceptance of the Goods or services shall not relieve Seller from any of its obligations, representations and/or warranties under the Agreement.

7. Change and Cancellation

Purchaser may, at any time, make changes to the Order, and Seller shall accommodate such request, provided Purchaser shall pay any additional reasonable costs of Seller by reason of any change. Any claim by Seller for a change pursuant to this Section as a result of the Purchaser's change must be asserted in writing within ten (10) days from date of receipt by Seller of Purchaser's notification of any change. Purchaser will have the right to verify all claims hereunder by auditing relevant records of Seller. If Purchaser does not agree to pay such additional charges, the Purchaser may, as its option, proceed with the Purchase Order in the form previously provided to the Seller or cancel the Purchase Order without further liability to the Seller, and shall notify the Seller accordingly. If Purchaser agrees to additional charges as provided in this Section, Seller agrees to proceed with the Purchase Order as changed under this Section 7.

8. Packing, Marking and Shipment

Seller will pack and mark Goods and make shipments in accordance with Purchaser's instructions and consistent with industry standards as may be applicable to particular Goods, and assure delivery of Goods free of any damage and deterioration. Unless instructed otherwise by the Purchaser, all Goods shall be shipped and delivered in sealed containers, properly labeled and palletized. Where a shipping company is chosen by the Seller, the shipping company shall be responsible for pallet exchange. Purchaser may specify the carrier and/or method of transportation, and Seller will process shipping documents and route shipments of the Goods accordingly. Seller will comply with all of Purchaser's transportation routing instructions, including, but not limited to, mode of transportation, packing, utilization of assigned carrier and identification of the shipping point, and delivery directly to Purchaser's customer. Seller will be responsible for all excess costs incurred because of its failure to comply with Purchaser's transportation instructions or delivery requirements/schedules.

9. Delivery of Goods, Risk of Loss, Transfer of Title

• Time is of the essence. Delivery must be effected within the time specified in the Purchase Order; provided, however, in the event Purchaser requests a delivery outside of the stated delivery time (as set forth in the Purchase Order), the parties will agree on a delivery time as proximate to Purchaser's original request as is commercially reasonable. Seller will make commercially reasonable progress in preparing for the delivery of Goods and/or the performance of services in accordance with Purchaser's timing requirements.
• Seller shall immediately notify Purchaser by the quickest means available whenever Seller's performance of its obligations under this Agreement will be delayed, or Seller anticipates a possible delay, including the reasons for the delay and the anticipated length of the delay. If Seller fails to make deliveries or perform services at the agreed time, all damages suffered by Purchaser as a result of Seller's non-performance, including but not limited to any premium transportation or other costs incurred by Purchaser in its efforts to mitigate the impact of Seller's late performance, will be at Seller's expense.
• Except as is otherwise specified in the Purchase Order, all shipments shall be delivered F.O.B. Purchaser's facility, and all deliveries shall be via common carrier or some other reasonable means chosen by Purchaser.
• Partial deliveries shall be allowed only upon Purchaser's prior written consent.
• Seller is responsible for the Goods until delivery at the designated delivery point. Title and risk of loss and damage to the Goods shall pass to Purchaser upon delivery of such Goods to the Purchaser or designated Purchaser's customer at the designated delivery point.
• Goods delivered in excess of the quantities or in advance of delivery dates or times specified shall be at Seller's risk of loss and damage and may be returned to Seller, and all transportation charges both to and from the original destination shall be paid or reimbursed by Seller.

10. Warranties

• Seller represents and warrants that the Goods and services provided, sold and/or performed hereunder will (a) be provided, sold and/or performed as specified in the Purchase Order, (b) comply and conform with all health, safety and other applicable laws, regulations, rules, codes and standards, including industry standards, and product characteristics (c) be merchantable, (d) be delivered without damage, deterioration or reduction in quality, (e) be wholesome, (f) be free from defects in material and workmanship, (g) not be, in whole or in part, of such age or condition so as to impair their fitness, usefulness or safety.
• Seller further represents and warrants that Purchaser will receive good title upon delivery of Goods and/or services under any Purchase Order, free and clear of any and all liens and encumbrances, and that all Goods and services will be free from any actual or claimed patent, copyright or trademark infringement and will not infringe any intellectual property rights of any third party.
• The foregoing representations and warranties in Sections 10(a) and 10(b) are collectively referred to as "Seller's Warranties." Seller's Warranties are available to, and for the benefit of, Purchaser, its subsidiaries and affiliates, their respective successors and assigns, their customers and end users of the Goods.
• With respect to the Goods, Seller's Warranties shall continue for the longer of (i) the life of the Goods or (ii) thirty-six (36) months from the sale of any Goods to the final customer or end user, whichever is later. With respect to the services, Seller's Warranties shall continue for the longer of (i) the applicable period allowed by law or (ii) for thirty-six (36) months from the date of completion and acceptance of the services by Purchaser.

11. Inspection and Rejections

• Purchaser may, in its sole discretion, inspect, evaluate, and test all Goods and all services at times and places designated by Purchaser, and Seller shall reasonably cooperate with Purchaser as may be requested by Purchaser from time to time. Seller acknowledges and agrees that Purchaser may choose not to perform incoming inspections with respect to some or all Goods, without prejudice to any rights or remedies available to Purchaser hereunder or at law, and Seller waives any rights to require Purchaser to conduct such inspections.
• In the event of any discovered defect, non-conformance, shortage, damage or discrepancy in or to a shipment of the Goods or any discovered failure of the Goods to comply with any of the Seller's Warranties, Purchaser shall notify Seller within thirty (30) days of the actual discovery and knowledge of such issue. Any defective or non-conforming Goods shall be held by Purchaser at Seller's risk of loss and damage. Any claim for breach of Seller's Warranties under this Agreement will be made by written notice to Seller within the warranty period specified in Section 10(d).
• Purchaser shall notify Seller within thirty (30) days of completion of Seller's services of any issues related to the services.
• Without limiting its remedies, after providing notice to Seller under Section 11(b) or 11(c) hereof, Purchaser may (i) replace or correct any non-conforming or defective Goods or services and charge or debit Seller the cost of such replacement or correction, (ii) require Seller to replace or correct any non-conforming or defective Goods or services at Seller's cost and expense and Seller shall timely comply with such a requirement in which case Seller's Warranties shall apply to such corrected or replaced Goods and services, (iii) reject any defective or non-conforming Goods or services without any further liability for payment therefor and return same to Seller at Seller's cost and expense, (iv) reject and return all of the Goods to Seller at Seller's cost and expense if the defective or non-conforming Goods were, in Purchaser's sole and absolute discretion, a material portion of the Agreement or of the Purchase Order (v) terminate the Agreement of any Purchase Order, in whole or in part, for default under Section 19 hereof, and/or (vi) commence legal action to recover damages suffered by Purchaser in accordance with Section 32 hereof.
• Notwithstanding payment or any prior inspection and/or acceptance of Goods or services, Purchaser may revoke acceptance, reject or require correction and return the Goods to Seller (at Seller's expense and risk of loss and damage) regarding any Goods delivered or services rendered that do not conform to applicable requirements.
• Any payment made by Purchaser for defective or non-conforming Goods or services shall be refunded by Seller, except to the extent Seller promptly corrects or replaces the same at Seller's expense.

12. Insurance

• Seller shall keep the Goods and services insured against all risks of loss and damage from every cause whatsoever for not less than the replacement value thereof until the Goods are delivered to Purchaser or services are completed.
• Seller shall also maintain such other insurance coverage as may be necessary or appropriate to cover its obligations hereunder and consistent with the industry standards.

13. Status of the Parties

With respect to all services performed and/or Goods sold and/or provided by Seller to Purchaser, the Seller acts and shall be at all times an independent contractor of Purchaser, and nothing contained in these Terms and Conditions or otherwise shall be construed to create any joint venture, partnership, agency, employment, or other association between the parties other than that of independent contractor.

14. No Liability for the Selection or Services of Third Parties

Except where Purchaser requests in writing that the Seller engage specific third parties in connection with the Seller's performance hereunder, the Seller shall use reasonable care in its selection of third parties, or in selecting the means or methods of performing services and/or providing Goods to Purchaser. Any advice by the Purchaser that a particular third party has been or should be selected to render services shall not be construed to mean that the Purchaser warrants or represents that such a third party will render such services nor does Purchaser assume any responsibility or liability for any acts and/or omissions of such third parties and/or its agents. Seller agrees to assert and bring any and all claims in connection with the acts or omissions of a third party solely against such third party and/or its agents; except where a conflict of interest or business conflict exists, upon Seller's request, the Purchaser shall reasonably cooperate with Seller in connection with any such claim, and Seller shall pay or reimburse Purchaser for its actual charges or costs incurred in connection with such cooperation.

15. Limitation of Liability

PURCHASER SHALL NOT HAVE ANY LIABILITY TO THE SELLER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES RELATING TO LOSS OF PROFIT, LOSS OF INCOME OR REVENUE, LOSS OF GOODWILL, EVEN IF IT HAS BEEN PUT ON NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING OR EXPANDING THE PROVISIONS OF ANY OF THE SECTIONS OF THESE TERMS AND CONDITIONS, IN NO EVENT SHALL PURCHASER'S LIABILITY FOR MONETARY DAMAGES EXCEED THE COST OF THE GOODS OR SERVICES WITH RESPECT TO WHICH SUCH LIABILITY AROSE.

Seller acknowledges and agrees that the provisions of these Terms and Conditions that limit liability, or exclude consequential damages or other damages or remedies are essential terms of and are fundamental to the parties' understanding regarding allocation of risk. Accordingly, such provisions shall be severable and independent of any other provisions of these Terms and Conditions and shall be enforced to the fullest extent permitted by law. Without limiting the generality of the foregoing, THE SELLER AGREES THAT ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES OR REMEDIES SHALL REMAIN FULLY VALID, EFFECTIVE AND ENFORCEABLE IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EVEN UNDER CIRCUMSTANCES THAT CAUSE ANY EXCLUSIVE REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. The limitations contained in this Section apply regardless of the form of action, including actions in contract, tort (including negligence), and strict liability.

16. Recalls

Seller shall be responsible for handling and shall in good faith using its best efforts handle any voluntary or government-mandated recall applicable to any Goods sold and/or provided by Seller to Purchaser hereunder (a "Recall") and shall be responsible and liable for any and all costs and damages resulting from the Recall, whether imposed or required to be handled or paid by, as an example and without limitation, Seller, Purchaser, and/or any customer of the Purchaser. The party with knowledge of the Recall will (a) timely notify the other party after it learns that a Recall implicates the Goods, (b) provide the other party with reasonably available data relating to the Recall, (c) provide the other party a reasonable opportunity to participate in inquiries and discussions among Seller, Purchaser, Purchaser's customer and/or governmental agencies regarding the need for and scope of the Recall, and (d) consult with the other party about the most cost-effective method of remedying the alleged defect or non-compliance. Notwithstanding the foregoing, Purchaser's failure to comply with any of the foregoing items (a) – (d) shall not be considered a breach of this Agreement and shall not affect Seller's responsibility or liability for costs and damages resulting from any Recall.

17. Indemnification

Seller shall indemnify, defend and hold the Purchaser and its affiliated business entities and their respective employees, officers, directors, agents and representatives harmless from any and all claims, actions, liabilities, losses, expenses, penalties, fines, damages and costs including, without limitation, reasonable attorneys' fees, which the Purchaser may at any time incur, suffer or be required to pay that arise from or are in connection with any of the following: (a) any non-performance or breach by Seller of any provisions of any Purchase Order, Terms and Conditions or the Agreement, including without limitation, any breach of Seller's Warranties, (b) any negligence, acts or omissions of Seller and/or those under its direction or control, (c) any acts or omissions of third parties engaged by Seller, (d) any unauthorized use or disclosure of Confidential Information by any person or entity to whom the Seller discloses Confidential Information, (e) any Recall of any of the Goods sold and/or provided by Seller hereunder and (f) any Goods and/or services sold, provided and/or performed by Seller hereunder.

18. Force Majeure

• A delay or failure by either party to perform its obligations under the Agreement will be excused only if (i) caused by an event or occurrence beyond the reasonable control of that party and without its fault or negligence, including, without limitation, fires, floods, explosions, accidents or other catastrophes, acts of God, strikes, lockouts or labor disruption, wars, terrorism, piracy, riots or embargo delays, government allocations or priorities, severe weather conditions, and changes of law or regulation, and (ii) the party unable to perform gives notice of the non-performance (including its anticipated duration) to the other party promptly (and in any case within five (5) days) after becoming aware that it has occurred or will occur. Such a delay or failure shall be referred to as a "force majeure."
• The term "force majeure" shall not, however, include a delay arising from or as a result of: (i) a change in cost or availability of Goods based on market conditions or supplier actions affecting Seller; or (ii) any labor strike or other disruption applicable to Seller or to any of its subcontractors or suppliers.
• Within five (5) business days after written request by the other party, the non-performing party will provide adequate assurances that the non-performance due to force majeure will not exceed thirty (30) days. If the non-performing party does not provide those assurances, or if the non-performance exceeds thirty (30) days, the other party may terminate the Agreement by notice to the non-performing party before performance resumes.

19. Termination, Event of Default and Remedies

• Each following events is an "Event of Default" for purposes of the Agreement: (i) Seller fails to timely deliver Goods or perform services, (ii) Seller violates any other provision in, fails to meet any other requirements contained in, or fails to perform any other provision under any Purchase Order at the time specified therein and to the extent such failure is capable of being cured, in Purchaser's sole and absolute discretion, fails to so cure such failure within thirty (30) days after such Event of Default, (iii) Seller becomes insolvent, makes an assignment for the benefit of creditors or is unable to meet its obligations as they become due, (iv) a petition in bankruptcy or insolvency is filed by or against Seller, or (v) Seller repudiates any Purchase Order (absent a legal right to do so,) in writing, including via e-mail, takes any action evidencing its intention not to perform (including threatening non-delivery of Goods), or omits to take any action required to be performed by Seller, which, in Purchaser's sole and absolute discretion, is necessary for Seller to timely deliver Goods and/or perform services under any Purchase Order.
• Upon the occurrence of any Event of Default, Purchaser may (i) terminate the Agreement or any Purchase Order in whole or in part at any time, without liability except for payment due for Goods and services delivered and accepted, or (ii) if Seller's breach is curable in Purchaser's sole and absolute discretion, Purchaser may suspend performance of the Agreement until Seller's breach has been cured. To the extent Purchases partially terminates the Agreement or any Purchase Order, the rest of the Agreement or of the Purchase Order shall continue to be in effect and shall be governed exclusively by these Terms and Conditions.
• In the event of a material breach of this Agreement by Purchaser which is not cured within thirty (30) days after written notice of material breach by the Seller, Seller may terminate this Agreement by written notice to the Purchaser. Seller's sole remedy upon such termination shall be payment for the Goods and services delivered and accepted by the Purchaser.
• Upon Seller's receipt of any notice of termination under this Section 19, Seller will stop work on the date and to the extent specified in such notice and terminate all orders and subcontracts that relate to the terminated Purchase Order or the applicable terminated portion thereof or of the Agreement.
• If Seller is unable to perform for any reason, including by reason of a force majeure, Purchaser may purchase Goods from other sources and reduce its purchases from Seller accordingly without liability to Seller.

20. Confidentiality

• For a period of three (3) years after (i) submission of Documentation or Purchase Order to Seller, (ii) any completion of the sale between Purchaser and Seller, or (iii) expiration or termination of the business relationship between Purchaser and Seller for any reason, whichever is later, Seller will treat all proprietary or confidential information and materials supplied by Purchaser (collectively, "Confidential Information") as confidential and proprietary, and as trade secrets of the Purchaser.
• The Seller will safeguard and hold Confidential Information in confidence by using the same degree of care that the Seller takes to hold in confidence its own confidential information of a similar nature, which will be no less than reasonable care. The Seller will not use, disclose, copy or share any Confidential Information, except (i) as part of the business relationship with the Purchaser, (ii) as permitted hereunder or (iii) by written agreement of the Purchaser. The Seller may disclose Confidential Information to its employees and agents only on a "need-to-know" basis and will not disclose any Confidential Information, directly or indirectly, to any third party or any affiliated business entity except where required to perform its obligations hereunder, and in any event, to the extent minimally necessary. Seller will not use or disclose any Confidential Information to compete, directly or indirectly, with the Purchaser. Further, no disclosure of the Confidential Information will be made by the Seller unless the Seller and the person or entity to which Seller wishes to disclose the Confidential Information have entered into an agreement substantially similar to this Agreement containing terms of confidentiality at least as restrictive as those contained in this Agreement and to which the Purchaser is expressly made a third party beneficiary. The Seller shall be responsible for any non-compliance with the terms and conditions of this Agreement by any person or entity to which it discloses Confidential Information to the same extent the Seller would have been responsible under this Agreement and applicable law for its own breach of the same obligations.
• The Confidential Information does not include any information and/or materials which (i) is or becomes generally available to the public as a matter of record, as long as not due to a breach by the Seller or a breach by any third person or entity to which such information was entrusted by Seller which breach is known to the Seller; (ii) is already in the Seller's possession prior to receipt from the Purchaser, as reasonably evidenced by written records; (iii) is independently developed by the Seller, as reasonably evidenced by written records, and was not acquired by Seller from the Purchaser and/or with any benefit of Confidential Information; and/or (iv) is rightfully obtained by the Seller, as reasonably evidenced by written records, from a third party or parties who represented to the Seller to have no restriction from the Purchaser to disclose the same. For the exceptions under (ii), (iii) and (iv) to apply, the Seller shall notify the Purchaser in writing within two (2) business days after its receipt of Confidential Information or independent development of the information and/or materials, as applicable, that the applicable exception applies. Notwithstanding anything to the contrary, the foregoing exceptions to Confidential Information do not apply to any information and/or materials which the Seller or any of its representatives or affiliated business entities, solicited or requested from any third party after the disclosure of the Confidential Information by the Purchaser. Confidential Information shall not be deemed to be in Seller's possession or publicly known because it is embraced by more general information in the Seller's possession or because it is embraced in general terms in any publications.
• In the event the information and/or materials disclosed by the Purchaser contain any pricing and/or availability information on any products and/or services of any third party ("Third Party") which information was not in possession of Seller or any of its affiliated business entities at the time of disclosure of same by Purchaser, or any information or materials related to any Purchaser's customer ("Customer"), such information and/or materials will be considered Confidential Information for purposes of this Agreement and none of the exceptions of Section 20(c) will apply to such Confidential Information. In addition to other covenants applicable to Seller hereunder, with respect to Confidential Information described in this Section 20(d), Seller agrees that it will not, in connection with this Agreement, directly or indirectly, contact or solicit the Third Party, even if the Third Party is an existing vendor or customer of Seller, in an effort to procure such products and/or services directly from the Third Party, except where specifically authorized to do so by the Purchaser. Further, notwithstanding anything to the contrary in the Agreement or otherwise, with respect to Confidential Information described in this Section 20(d) related to any Purchaser's Customer, Seller agrees that it will not under any circumstances, directly or indirectly, disclose any Confidential Information related to any Customer, including without limitation information about the identity of any Customer or Goods delivered to any Customer, to any third party or parties, except where specifically authorized to do so by the Purchaser.
• The Purchaser is and shall remain the owner of all Confidential Information provided to Seller, and Seller will return Confidential Information and all copies thereof to the Purchaser, upon expiration, cancellation or termination of the business relationship between the parties for any reason and at the Purchaser's request, and shall retain no copies thereof except where necessary to comply with applicable laws.

21. Assignment

The Agreement or any Purchase Order may not be assigned or delegated, in whole or in part, without Purchaser's prior written consent, including, but not limited to, the subcontracting of work to be performed by the Seller, which consent may be withheld by Purchaser in its sole and absolute discretion, and any attempted assignment or delegation in violation of this Section 20 will be void and of no legal effect. In the event Purchaser consents to any assignment or delegation by the Seller, Seller shall be and remain responsible for timely performance of any and all obligations under the Purchase Order and the Agreement.

22. Compliance with Laws

In providing and/or selling Goods or performing services hereunder, Seller and its allowed subcontractors will comply with any and all applicable federal, state, and local laws, regulations, executive orders and other rules of law as in effect at any time during the term and/or Seller's performance of the Agreement.

23. Stated Remedies are Non-exclusive

Purchaser's remedies stated herein are cumulative and are not exclusive of any other remedies available at law or equity.

24. Amendments and Modifications

These Terms and Conditions may only be modified, altered or amended in writing signed by both Purchaser and Seller, and any attempt by Seller to unilaterally modify, alter or amend same shall be null and void.

25. Number And Gender

Where appropriate, words that reflect the masculine, feminine, or neuter gender shall be construed to also reflect the other genders; and words that reflect either the singular or plural shall also be construed to reflect the other.

26. Section Headings

The Section headings contained in these Terms and Conditions are for reference purposes only and shall not in any way affect the meaning or interpretation of these Terms and Conditions.

27. Multiple Counterparts

Any Agreement entered into by Purchaser and Seller may be executed in multiple counterparts, each of which shall constitute an original agreement, but all of which shall constitute only one agreement. The signatures need not all be on a single copy of any Agreement between the parties, and may be facsimiles rather than originals, and shall be fully as effective as though all signatures were originals on the same copy.

28. Severability

Any provision of the Agreement which is determined to be invalid or unenforceable shall not affect the remainder of the Agreement, which shall remain in full force and effect.

29. No Waiver

No waiver by Purchaser of any provision of the Agreement shall be effective unless it is written and signed by Purchaser. The Purchaser's decision to waive any provision herein or to waive any breach by Seller of any provision herein, either by conduct of otherwise, shall not constitute or be deemed to be a further or continuing waiver of such provision or a waiver of any preceding or succeeding breach of the same provision or to otherwise waive or invalidate any other provision herein.

30. No Third Party Beneficiary

The parties do not intend to confer any benefits under this Agreement on any person, firm or corporation other than the Purchaser and Seller.

31. Limitations of Actions

Except as otherwise provided in these Terms and Conditions, all claims against Purchaser must be made in writing and received by Purchaser, within sixty (60) days of the event giving rise to claim; the failure to give Purchaser such timely notice shall be a complete defense to any suit or action commenced by Seller with respect to such claim. All suits against Purchaser must be filed and properly served on the Purchaser within one (1) year of (a) the delivery of the Goods (or the applicable portion of the Goods) or (b) the completion of the services, and thereafter shall be forever barred.

32. Governing Law; Jurisdiction and Venue

The Agreement, these Terms and Conditions and the relationship between the parties shall be governed by the law of the State of Michigan, USA without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan. The parties agree that State of Michigan shall be the exclusive jurisdiction for all disputes. The Oakland County Circuit Court or the Federal District Court for the Eastern District of Michigan is a convenient venue for both parties.

33. Notices

Any notice to Seller or Purchaser shall be in writing, and shall be deemed sufficient if personally delivered, sent to the party's last known mailing address, and/or to such other address as to which proper notice has been given, by commercially reputable courier service provided receipt is confirmed, or via facsimile or e-mail provided in either case that proper notice of the facsimile number(s) and e-mail address(es) has been given pursuant to this Section, and receipt is confirmed. Notice shall be deemed to have been given when personally delivered, one (1) business days after being delivered by commercially reputable courier service, one (1) business day after acknowledgment of receipt via facsimile transmission, or one (1) business day after having been sent by e-mail.

34. Equitable Relief

Seller acknowledges that a breach of its obligations under Section 9 or 20 of these Terms and Conditions would cause irreparable damage to Purchaser, including without limitation potential damage to Purchaser's relationships with its customers, lenders, and prospective future customers, the exact amount of which would be difficult to ascertain, and that the remedies at law and monetary damages for any such breach would be inadequate. Accordingly, in the event of any action taken or threatened by Seller hereunder that, if taken, would constitute a breach of its obligations under Section 9 or 20 of these Terms and Conditions, Purchaser and it successors and assigns are entitled to injunctive or other equitable relief and/or a decree for specific performance, without the posting of any bond or other security, in addition to any other remedies it may have for damages or otherwise. Seller may not take any action or position inconsistent with this acknowledgement, and Purchaser will be entitled to recover its attorney fees and costs in connection with the enforcement of this Section 34.

35. Legal Fees

A party who substantially prevails in any litigation or arbitration under the Agreement shall be entitled to recover its costs, including but not limited to reasonable attorney fees, expert witness fees and other fees and costs.

36. Survival

The provisions of these Terms and Conditions intended by their terms to survive termination, cancellation or expiration of the Agreement and any Purchase Order will survive any termination, cancellation or expiration of the Agreement or Purchase Order in whole or in part for any reason, including without limitation Sections 2 – 6, 8 – 17, and 19 – 36.