Vendor Terms & Conditions

(1) The materials, supplies and equipment that are the subject of a purchase by Peter Cremer North America L.P. (“Buyer”) from the recipient of Buyer’s purchase order (“Seller”) are referred to as the “Product.” All sales of Product are governed by and subject to (a) Buyer’s purchase order or a separate written agreement signed by an authorized representative of Buyer, as applicable, and (b) these terms and conditions, whether or not they are specifically referenced in or incorporated by Buyer’s purchase order, or a separate written and agreement signed by Buyer (the aforementioned documents, as applicable, are hereinafter referred to as the “Agreement”). Any conflict between these terms and conditions and any terms in Buyer’s purchase order or a separate written and signed agreement shall be resolved in favor of the Buyer’s purchase order or the separate written agreement signed by an authorized representative of Buyer. ALL TRANSACTIONS ARE GOVERNED BY BUYER’S TERMS AND CONDITIONS OF PURCHASE. NO ALTERATION WILL BE ACCEPTED ABSENT A SIGNED ACCEPTANCE BY BUYER. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS AND CONDITIONS, ANY PROPOSAL OR DOCUMENT FROM SELLER THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM ANY OF BUYER’S TERMS AND CONDITIONS OF PURCHASE ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY SELLER SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF PURCHASE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S).

(2) Seller represents that with respect to all Product delivered and services furnished hereunder: (i) title shall be good, merchantable, rightful and the Product free of any security interest, lien or encumbrance; (ii) that Product will be new, free from defects in material and workmanship, be of quality, size, description and dimension required by Buyer, be fit for the purpose for which they are purchased and will meet the specifications, if any, and that Seller’s services will be performed in a skillful and workmanlike manner; and (iii) the Product, the process by which they are made, the use for which they are designed by Seller and Buyer’s use of the Product will not infringe any patent, trademark, copyright or other rights of any third parties (“Intellectual Property Rights”). This express warranty shall not be deemed waived by reason of either or both the receipt of the Product and payment therefore by Buyer. The foregoing is in addition to any and all other express or implied warranties applicable to the Product purchased hereunder.

(3) Seller represents and warrants that all Product furnished hereunder, and Seller’s manufacturing thereof, complies with all applicable laws, ordinances, rules and regulations (“Laws”) and each chemical substance sold hereunder has been reported to the US Environmental Protection Agency (EPA) as required by the Toxic Substances Control Act and regulations, for inclusion in the inventory of chemical substances compiled by the Administrator of the EPA. Seller shall treat Product prior to shipment to Buyer in accordance with testing standards requested by Buyer, and shall furnish Buyer certifications in support thereof.

(4) Seller will defend, indemnify and hold harmless Buyer, its parents, subsidiaries, affiliates, vendors, successors, and assigns, and their officers, directors, partners, shareholders, employees, and agents from and against any and all loss, liability and expense by reason of (i) any actual or alleged violation of Laws, (ii) any actual or alleged infringement of Intellectual Property Rights, (iii) personal injury, death or property damage resulting, in whole or in part, from any negligent act or omission on the part of the Seller or which may result from the installation, operation or use of the Product furnished hereunder, (iv) a defect in the manufacture or design of the Product supplied hereunder, or (v) any breach or alleged breach by Seller of any representation, warranty, or other provision of these terms and Conditions of Purchase. Upon notification, Seller shall promptly assume full responsibility for the defense of any suit or proceeding which may be brought against Buyer or any of its subsidiaries, affiliated companies, agents and vendors in connection with the above, of for alleged unfair competition resulting from similarity in design, trademarks, or appearance of the Product. Seller shall further indemnify and hold Buyer, its parents, subsidiaries, affiliates, vendors, successors, and assigns, and their officers, directors, partners, shareholders, employees, and agents harmless from any and all expenses, losses, claims, royalties, profits, and damages, including court costs and attorneys’ fees, resulting from the bringing of such suits or proceedings or the threat thereof and from any settlement, decree or judgment therein. Buyer reserves the right to control any such suit or proceeding. These indemnities shall apply without regard to whether the claim, liability, obligation, or cause of action arises from breach of contract, breach of warranty, negligence or other tort, and such indemnities shall survive delivery and acceptance of the Product.

(5) In case of default by Seller, Buyer may obtain Product and services from other sources and hold Seller responsible for any damages occasioned thereby. The dates of delivery and quantities specified herein are of the essence for this Agreement and delivery must be effectuated within the specified time period. If deliveries are not made on time and in the quantities specified, Buyer reserves the right to cancel and to purchase the Product and/or services elsewhere and hold Seller accountable therefore. Seller shall cooperate with Buyer in respect to all customs formalities applicable to the import or export of the Product, shall be responsible for determining proper import or export classifications, and shall provide Buyer documentation to Buyer’s satisfaction for such classifications.

(6) Orders shall not be filled at prices higher than those quoted or charged to Buyer or specified herein. Unless otherwise agreed in writing, prices include packaging, labeling, crating, taxes, and duties. Unless otherwise agreed in writing, all prices include shipping and delivery CIF (Buyer’s factory).

(7) Product is subject to inspection, test, and acceptance by Buyer and the ultimate purchaser. Buyer shall have a reasonable number of days from the date of arrival to inspect the Product and notify Seller of any non-conformity to the order specifications (including quantity and delivery dates). Such inspection may not occur until final sale of the Product to Buyer’s customers. Buyer reserves the right to reject any Product, even after delivery and inspection at customer’s site, which does not fulfill the specifications of the order or time of delivery and (i) return rejected Product to Seller at Seller’s risk and expense for full credit at the order price without prejudice to any right to other damages for such breach, (ii) to require Seller at Seller’s expense to replace rejected Product at the unit price of the order, or (iii) consider this Agreement breached as to the rejected quantity and cancelled as to any unfulfilled portion of the order, and to hold Seller liable for such breach and cancellation. Seller is not relieved of the responsibility imposed by this clause, either as to proper packaging, quantity of Product or specifications, by reason of acceptance by Buyer.

(8) This Agreement between Buyer and Seller shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of Ohio, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

(9) Invoices and bills of lading showing full routing should be dated and mailed at the time of shipment and a separate invoice must be made for each destination showing point of shipment and how shipped. Invoices bearing transportation charges must be supported with attached original receipted transportation bills and, in the case of consolidated carload shipments, must show weight and rate. The discount period, if any, stated in the face of the purchase order shall be calculated from the date of receipt by Buyer of a proper invoice from Seller.

(10) If the manufacture, transfer or receipt or use by either party of any Product covered hereby is prevented, restricted or interfered with by conditions that constitute force majeure, such as acts of God, acts of terrorism, acts of the public enemy, labor disturbances, authority of law, fire or explosion, war or warlike act, insurrection, a party’s reasonable response (by way of example and not limitation, such as taking evasive action or canceling meetings or events) to a Governmental warning affecting local or national security, or any like causes beyond the reasonable control of the party so affected, such party, upon prompt notice to the other party (and in the case of Buyer, prior to actual shipment), shall be excused from making or taking deliveries hereunder to the extent of such prevention, restriction or interference but, at Buyer’s option, deliveries so omitted shall be made upon notice thereof to Seller, upon cessation of such contingency.

(11) Seller may not assign this Agreement or any of Seller’s obligations hereunder without Buyer’s written consent.

(12) Seller shall maintain at its own expense at all times while performing hereunder occurrence-based liability insurance and product-liability insurance with a reputable and financially responsible carrier(s) satisfactory to Buyer for coverage in amounts not less than USD 5 million per occurrence/aggregate, and all other insurance required by applicable law, for example, state statutory minimum workers’ compensation coverage limits where applicable. If Seller uses a vehicle integral to the work performed for Buyer, it must carry automobile liability insurance covering bodily injury and property damage in amounts not less than USD 1 million combined single limit per occurrence, with the inclusion of owned, non-owned, and hired vehicle coverage. Seller shall furnish insurance certificates as directed by Buyer, satisfactory in form and substance to Buyer, showing the above coverages, and providing for at least 10 days prior written notice to Buyer by the insurance company of cancellation or material modification.

(13) If Seller’s employees, subcontractors, consultants, or other representatives under Seller’s control perform any services at Buyer’s premises or at Buyer’s direction at the premises of others, (i) such persons shall comply with all rules and regulations of such premises and (ii) Seller shall keep Product and the premises on which the work is performed free and clear of all liens for material and labor incident to the performance of Seller’s services hereunder.

(14) In the event of (i) any proceeding voluntary or involuntary in bankruptcy or insolvency by or against Seller, or in the event of an appointment of a receiver or assignee for the benefit of creditors, with or without Seller’s consent, or (ii) any change in control and/or ownership of Buyer, Buyer may cancel any unfilled part of this order without any liability whatsoever on Buyer’s part.

(15) All tools, dies, patterns, designs, molds, drawings, specifications, and other data or papers, and the like, furnished by Buyer to Seller in connection with this Agreement by Buyer, remains the property of Buyer. In the event materials furnished by Buyer to Seller include any intellectual property of Buyer, Seller is granted a non-exclusive, non-transferable, non-sublicensable and non-assignable license required only for the production of Product under this Agreement, and shall use Buyer’s intellectual property only for that purpose. Except for this license, no right, interest, ownership or privilege of use of Buyer’s intellectual property shall inure to the benefit of Seller. Seller agrees to return any tools, dies, patterns, designs, molds, drawings, specifications, and other data or papers, and the like, furnished by Buyer to Seller in connection with this Agreement within a reasonable time upon demand, whether written or oral, by Buyer. Seller agrees that it has no possessory interest in such tools, dies, patterns, designs, molds, drawings, specifications, and other data or papers, and the like, once Buyer has requested the return of same.

(16) Seller acknowledges that anything Seller develops at the direction or request of Buyer (“Developments”) is (i) the sole and exclusive property of Buyer and (ii) CONFIDENTIAL. Seller hereby assigns by way of future assignment to Buyer all rights in the Developments. In addition, Seller agrees to promptly execute any documents and provide other assistance at any time reasonably required by Buyer in connection with the registration of copyright, the assignment or securing of patent protection or other perfection of Buyer’s ownership of the Developments.

(17) Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration to be held in Cincinnati, Ohio and administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Such arbitration shall not preclude either party from seeking prejudgment security or any other relief in aid of arbitration in any court of competent jurisdiction.

(18) All information provided by Buyer hereunder, including, but not limited to, the terms and conditions of this Agreement, must be held in confidence by Buyer. This obligation shall survive the termination or expiration of this Agreement.

(19) Whenever possible, each provision of this Agreement and any subsequent written agreement executed pursuant to this Agreement shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of this Agreement or any agreement related hereto shall be prohibited by or invalid under such law, such provisions shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Agreement or any contract related hereto.