Terms & Conditions

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‘Company’ shall be the Transcontinental AC UK Ltd company named on the Purchase Order. ‘Goods’ shall be the items or articles which are the subject of the Purchase Order.

‘Supplier’ shall be the recipient of the Purchase Order.

‘Company Buyer’ shall mean the Buyer of the Company or such other person as is nominated by a Director of the Company.

‘Contract’ shall mean the Contract between the Company and the Supplier.

‘Documentation’ shall mean the Purchase Order together with the TERMS and CONDITIONS and any other documents specified in the Purchase Order.

The General Conditions (if any) referred to on the Purchase Order shall have precedence over these PURCHASING TERMS and CONDITIONS should any inconsistency arise.

Inconsistencies in the Documentation shall be resolved by the order of precedence listed above.


Goods shall comply with current statutes and any re-enactments or modifications thereto. Goods shall be supplied in accordance with the documentation or any amendment that may be agreed in writing. Goods that do not comply with the documentation shall be replaced or rectified at the option of the company and to the cost of the Supplier.


Delivery shall be in accordance with the date(s) specified in the Contract or as may be agreed in writing. Delivery date is of the essence of the contract. The Company shall have the right to cancel the Purchase Order if the Goods are not in accordance with the Documentation or delivered by the due date. Each consignment must be marked with the Purchase Order number on the outside and an advice note or packing slip enclosed.

Any stoppage of the business of the Supplier or it’s supplier’s which could be remedied by the Supplier will not excuse performance. The Company reserves the right to defer the dates or dates of delivery and payment in the event any strikes, lock-outs, fires, explosions, or any stoppage of business of the Company beyond its control, until the circumstances preventing execution of the Purchase Order have ceased to exist.


The rates and prices stated on the Purchase Order shall remain firm and fixed for the duration of the Contract unless otherwise agreed by the Company in writing.

The Purchase Order number must be quoted on all correspondence, advice notes and invoices. Payment for the goods under the contract will be made at net 60 days after the receipt of a valid invoice, or delivery, whichever is the latest.

Value Added Tax together with any other applicable excise, customs or similar tax paid by the Supplier and properly chargeable to the Company, shall be shown separately on all invoices as a net extra. Any deficiencies in the information on the invoice may result in a delay in payment for which the Company will not be deemed liable.


i) The Company will not be liable in respect of any Purchase Order(s) or delivery instruction other than those issued on its official signed Purchase Order authorized in writing by the Company Buyer or nominee.

ii) No alteration will be permitted in the Terms and Conditions specified on the Purchase Order unless stated in writing by the Company Buyer or nominee.


The Company shall have the right to cancel the Purchase Order by so informing the Supplier in writing.

The Company shall only be liable to pay a fair and reasonable price for work done up to the time of cancelation and delivered to the Company. No other liability or loss will be accepted by the Company.


The Supplier shall indemnify the Company against all claims arising and all costs, damages, losses and expense associated with any claim brought by a third party that the Goods, the subject of any Purchase Order, infringe the intellectual property rights of the said third party.


The written consent of the Company is required before the Supplier may assign or sublet any part of the Contract.


The Supplier shall allow the nominated representative of the Company to inspect all Goods during manufacture and to carry out such tests as are specified in the Documentation. Where required the Supplier shall notify the Company in writing when Goods are ready for testing or inspection. The Supplier shall provide the Company with all safety and inspection data as may be specified in the Documentation or required by statute. If the Goods are subject to inspection by a Government Department the Purchase Order is subject to standard contract conditions and any special conditions specified by the relevant Government Department.


All Goods not in accordance with the Contract may be rejected by the Company at its option. The Supplier shall collect any rejected Goods from the Company within 3 days of receiving notice to do so from the Company. If the Supplier is unable to replace rejected Goods within the specified delivery period(s), the Company shall have the right to obtain Goods from an alternative comparable source and recover any reasonable additional costs from the Supplier. The contents of condition 10 shall in no way affect the Company’s right to recover any additional loss it may suffer by reason of Goods being rejected or otherwise not in accordance with the Contract.


The Supplier shall keep confidential all Documentation supplied by the Company which shall be returned on request. This documentation shall not be reproduced without the Company’s prior written consent. Content of clause 17 applies.


All Goods shall be adequately packaged to protect them and all persons and property against damage arising from any source. Packages shall be clearly marked with standard carrier classification symbols and codes. All packaging, containers and the like are deemed to be supplied free of charge to the Company unless otherwise agreed in writing.


The property and risk in the Goods will remain with the Supplier until they are delivered at the point in the Purchase Order and a nominee of the Company signs a delivery note or an invoice when title will pass to the Company without any limitation, constraint or encumbrance.


If the Supplier commits any breach in the terms and conditions of the Contract or if he shall become bankrupt or insolvent or have a receiving / restraining order issued against him or enter into liquidation, albeit compulsory or voluntarily (except for the purpose of amalgamation or reconstruction), or if execution is levied against the Suppliers Goods, the Company may forthwith by notice in writing, terminate the Contract but such termination shall be without prejudice to any rights or remedies of the Company subsisting at the time thereof.

15. LAW

The validity, construction and interpretation of this Agreement shall be governed by English law, and the Company and the Supplier both agree to submit to the non-exclusive jurisdiction of the English Courts.


A strict confidentiality agreement will be deemed to exist between the Supplier and the Company arising from all matters in the Contract and the supply of Goods. No information whatsoever shall be communicated in any form or manner without the express written permission of the Company’s nominated representative. Where applicable, a signed confidentiality agreement shall be executed.


This Contract contains the entire agreement of the Parties. Modification, termination or waiver shall not be binding on the Company unless expressed in writing by the nominated representative of the Company.


The packaging, handling and transportation of the Goods shall comply with all statutory Acts, the Health and Safety Commission requirements, COSHH Traffic Regulation and any applicable Fire Service legislation.


Any waiver of a breach of any provision of these terms and conditions shall not be considered as a waiver of any subsequent breach of the same or any other provision.


The Company opposes the use and exploitation of forced labor.  The Company expects all those who work on its behalf to share a zero-tolerance approach.

References in this Code to “forced labor” include slavery, servitude and any type of forced or compulsory labor as well as trafficking for the purposes of exploitation.

Accordingly, the Company’s expectations of suppliers are as follows:

1)  Suppliers must not use forced labor.

2)  If requested by the Company, suppliers will complete a self-assessment questionnaire provided by the Company regarding the use of forced labor and the steps the Supplier has taken to ensure that neither they nor their supply chain make use of it.  Suppliers will provide the Company with a copy of the completed questionnaire.

3)  Suppliers will allow the Company to audit compliance with this Term by inspecting the Supplier’s facilities, reviewing records, policies and practices and interviewing personnel.  Suppliers are expected to provide prompt access to their facilities, records, documentation and personnel.

4)  If the Company identifies any non-compliance, the Supplier must prepare, permit the Company to review and execute an improvement plan approved by the Company to rectify matters.

5)  Suppliers will place similar expectations to those set out above on their own suppliers.

CONDITIONS OF SALE (back to top?)

The Buyer’s Order is accepted by the Seller subject to the following conditions. Unless the Seller shall receive from the Buyer within three days of the receipt by the Buyer of these Conditions Of Sale, a letter or fax rejecting these Conditions of Sales and cancelling the Order, the Contract shall be constituted in these terms and deliveries will be made and shall be accepted in accordance with them.


  1. Definitions

The Seller shall be defined as meaning the Company stated overleaf and the Buyer shall mean any person, persons or company who receives a quotation or places an order or buys any goods from the Seller and includes the servants, agents or subcontractors or any such persons.


  1. Terms and Conditions of Contract

The terms and conditions of Contract between the Buyer and Seller shall consist only of:

(i)    These terms and conditions and all other matters set out in these Conditions of Sale.

(ii)   Such part of the Buyer’s order which have been accepted by the Seller and are not inconsistent with subheading (i) above.


  1. Application of Terms

Each Buyer’s order received and accepted by the Seller will be deemed to form a separate Contract to which these terms and conditions of Sale will apply.  Unless the Seller shall receive from the Buyer within three days of receipt by the Buyer of these Conditions Of Sale a letter or fax rejecting these Conditions Of Sale and cancelling the order, the Contract shall be final and binding and shall incorporate these terms and conditions and shall be deemed to override any other terms and conditions whether contained in previous arrangements or mentioned orally in any negotiations between the Seller and the Buyer.


  1. Warranties; Exclusions; Limitations on the Seller’s Liability

The obligation on the Seller imposed by the Contract is limited to the supply of goods specified in these Conditions Of Sale subject to its terms and conditions.  The Seller warrants that on delivery the goods will be of satisfactory quality and free from defects in workmanship or materials that materially impact use.  All other warranties and conditions and representations, expressed or implied, statutory or otherwise (other than those which cannot be excluded by an Act of Parliament) are hereby excluded.  The Seller’s liability to Buyer if goods are defective or don’t correspond with description or for the Seller’s failure to supply the said goods or from any other cause and whether or not due to the act or omission of the Seller, its servants, agents or sub-contractors is, at the Seller’s option in its sole discretion, (a) to repair or replace the items concerned; or (b) issue a credit note for the items; or (c) a refund of the price paid, provided in all cases that the Buyer notifies the Seller in writing of such defect or such lack of the goods’ conformity to description thereof within 10 days after delivery of the said goods.  The Seller shall not be liable in contract or otherwise to the Buyer or to others for any loss or injury or damage of any kind whatsoever, consequential, loss of profit, loss of business, depletion of goodwill, loss of opportunity, loss of data, loss of use, loss of contracts, loss of expected savings or interruption to the Buyer’s business business or otherwise arising out of any goods supplied (or any failure for any reason to so supply) (“Losses”). If however, the Seller is found to be liable to the Buyer or to others for any of the Losses or for breach of contract, misrepresentation, misstatement or other tortious acts or omissions, including negligence, arising under or in connection with the Contract, the Seller’s maximum liability to the Buyer and to any others shall, in the aggregate, be the price paid by the Buyer to the Seller under the Contract.  If it is found that to limit the Seller’s liability to the amount in the preceding sentence is unfair then the Seller shall only be liable to the Buyer and any others, in the aggregate, for the matter at issue for up to one-and one-half-(1.5) times the Order value for the subject goods giving rise to the issue. Notwithstanding anything to the contrary in this Section 4, nothing in these Conditions of Sale excludes the Seller’s liability to the Buyer for fraudulent misrepresentation or for death or personal injury resulting from the Seller’s negligence.


  1. Finance

(i)    Price and Credit

The Seller will invoice goods at the price stated in the Seller’s quotation, which price shall be exclusive of the cost of packaging and delivery to the buyer and any applicable taxes, unless these costs and taxes are specifically stated to be inclusive. Insofar as the terms or payment specified on these Conditions Of Sale may involve the Seller in giving credit to the Buyer, the Seller may at any time during the course of the Contract up to the date when the total amount of the goods covered by it shall have been delivered to the Buyer, change such terms requiring payment in advance, payment on delivery, or security for payment in the event that the Seller considers, in its absolute discretion, that the Buyer’s credit status is not appropriate to any other course.  The Seller shall be entitled without liability to the Buyer to withhold any further deliveries to the Buyer if such terms are not accepted.

(ii)   Payment

All deliveries will be invoiced at the time of despatch for delivery to the Buyer, and the Buyer shall pay all amounts so invoiced within 30 days of the date of such invoices irrespective of whether payment will be in advance and prior to delivery of the goods by the Seller.

(iii)  If any payment is not made on the due date for payment the Seller may at its discretion withhold further deliveries until the amount due is paid and/or charge interest on a daily basis, subject to the Late Payment of Commercial Debts (Interest) Act, on the overdue amount, as well as after or before judgement.

(iv)  The Price is subject to adjustment for changes in cost of raw materials, power and labour, but not limited to those stated, as may be directly incurred by the Seller after receipt of these Conditions Of Sale by the Buyer and in fulfilment of the Buyer’s order.

(v)   The Seller reserves a right to demand from the Buyer a Service Charge which shall be paid by the Buyer within 30 days from the date of such demand in respect of all material held by the Seller where the Buyer has declined to take delivery on the due date.


  1. Patents and Proprietary Rights

The Seller uses reasonable endeavours to ensure that the manufacture, use and sale of the goods covered by these Conditions Of Sale does not infringe any British Patent registered design, trademark and copyright covering the material itself, but can give no assurance about foreign patents registered design, trademark and copyright or that any use of the material in combination with other materials or in the operation of any process or otherwise may not infringe any patent registered design, trademark and copyright.  Where goods are made or adapted by the Seller in accordance with the Buyer’s specifications, the Buyer shall indemnify the Seller against any loss which may be incurred by the Seller as a result of any infringement or alleged infringement by such goods of any patent registered design, trademark or copyright the property of third parties.  The Seller reserves the right without liability to the Buyer to discontinue deliveries of any material, the manufacture, sale or use of which would in the Seller’s absolute discretion infringe any Patent registered design, trademark or copyright not owned by the Seller, or licensed to the Seller.


  1. Deliveries

(i)    Incoterms: All deliveries are Ex Work’s, Seller’s Premises.

(ii)   Instalment orders and deliveries: The Seller may deliver in instalments. Any failure on the part of the Seller to deliver any instalment of any order for goods to be delivered by instalments shall not affect the Buyer’s obligation to accept other instalments. If the delivery is to be by instalments, each instalment shall be deemed to be the subject of a separate Contract and non-delivery or delay in delivery shall not entitle the Buyer to rescind or terminate the Contract or make the Seller liable in any way for the consequences of any delay. If the Contract is for deliveries by instalments or regular weekly, monthly or less frequent deliveries then the Buyer must give the Seller written notice to terminate of at least (a) 13 weeks  for monthly or weekly deliveries; or (b) 26 weeks  if less frequent than 1-month deliveries

(iii)  Quantities: Where appropriate, delivery of quantities of not less than 90% and more than 110% of the quantity provided in the Contract shall be accepted and treated by both parties as the correct quantity.  Payment to be made on the basis of the actual quantity delivered.  In the event of any dispute over quantities the established carriers weights

ex Seller’s Works shall be binding on both parties.

(iv)  Seller’s Property: Unless specifically provided on the Contract all packaging and other special units shall remain the Seller’s property to be returned by the Buyer to the Seller,  at the Seller’s request, in good condition.  The Buyer shall indemnify the Seller against loss or damage to such articles and shall, if the same shall not be returned to the Seller within the specified time, pay the current prices listed by the Seller for such articles.

(v)   Delivery: All dates quoted by the Seller for despatch or delivery are estimates only and are not guaranteed and do not form a term of Contract.  The Seller will use reasonable endeavours to meet these dates but will be under no liability whatsoever for any delay in despatch or any damage or loss occasioned thereby.


  1. Title of Goods

Title to the Seller’s goods shall not pass until payment has been received in full, and the Seller’s goods shall be stored in such a way that they are clearly the property of the Seller.  Until such payment, any monies received on sub-sales shall be held in trust for the Seller.  The Seller shall have the right to enter any of the Buyer’s premises, at which the Seller reasonably believes such goods to be stored, at any time and with or without vehicles, and recover any of the Seller’s products not yet paid for by the Buyer.  The Buyer shall be solely responsible for obtaining payment from its own purchasers.


  1. Artwork and Design

Where relevant all designs and copy shall be approved by the Buyer before manufacture by the Seller and that approval shall be expressed in writing.  In the event that subsequent to approval the Buyer shall vary designs or copy the Seller shall be entitled to receive from the Buyer such additional expenditure generated thereby, including, but not limited to, the costs of redundant stock.  Any artwork, drawings, negatives, plates and/or other items supplied by the Seller shall remain the exclusive property of the Seller in all respects.


  1. Technical Advice and Recommendations

Insofar as the Seller or its representatives may at any time give any recommendation, technical advice or assistance to the Buyer covering the use of its products, such information is given by the Seller and accepted by the Buyer as information given without any liability or responsibility on the part of the Seller, and the Buyer shall indemnify the Seller against any loss which may be attributed to such information supplied by the Seller and which the Seller may in consequence sustain.


  1. Adaptation of Material

No liability shall attach to the Seller in respect of any use by the Buyer of the goods supplied whether or not such use includes a change in composition or form of the material or the use of the same combination with other substances.


  1. Buyer’s Default, etc.

If the Buyer defaults in any of the commitments with the Seller under these Conditions of Sale, or suffers any distress or execution upon his property or assets or makes or offers to make any arrangement or composition with creditors or commits an Act of Bankruptcy or has a receiver appointed over its assets or a Resolution of a Petition to wind up its business presented then the Seller shall have the right (without prejudice to any other remedies) to cancel any uncompleted order or to withhold or to suspend delivery.  In the event of an order being cancelled by the Seller in any of the above circumstances or cancelled by the Buyer, the Buyer shall be liable to indemnify the Seller against all loss, including loss of profit, costs (including, but not limited to, the cost of all labour and materials used and overheads incurred) and all other expenses and damages connected with the entire order and its cancellation (the Seller giving credit for the value of any material sold or utilised for other purposes).


13   Indemnity

The Buyer shall keep the Seller and all its employees and agents indemnified from and against all costs, claims, demands, expenses, fines, penalties and all liability whatsoever which may be made against the Seller, its employees or agents or which the Seller, its employees or agents may sustain, pay or incur arising out of or in connection with the production, sale or use of the goods or any illegal matter produced for the Buyer or any infringement of copyright, patent or design. This indemnity is given to the Seller for itself and for its employees and agents and as agents for such employees and agents.


14   Force Majeure

The Seller reserves the right to defer the date of delivery, cancel this Contract, reduce the volume of the goods ordered by the Buyer and/or allocate raw materials and goods among its affiliates and/or its other customers, all without liability to the Buyer if the Seller is unable to carry out the provisions of this Contract due to circumstances beyond the Seller’s reasonable control (regardless of the foreseeability of any such circumstances) for example, industrial disputes, act of God, government actions, hostilities, terrorist attack, terrorist activity, accident, shortage of or difficulty procuring materials or services (through no fault of the Seller), interruption of or reduced volumes of utility supplies, breakdown of plant or machinery, strike or action in furtherance of a dispute, fire, flood, storm, disease, epidemic, pandemic, import or export regulations or embargoes.  If the event in question continues for a continuous period in excess of sixty (60) days the Buyer shall be entitled to give notice in writing to the Seller to terminate the Contract,


15   Proper Law

This Contract shall in all respects be governed and interpreted in accordance with the Law of England, without giving effect to its conflicts laws, rules and principles, and under the exclusive jurisdiction of the English Courts.


16   Bribery Act 2010

The Buyer shall comply with all applicable laws, statutes and regulations relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010 as the same may be amended from time to time.


17   Notices

Any notice permitted or required under this Agreement shall be deemed to have been given if it is in writing and personally served or received, received by registered or certified mail (return receipt requested), received by a national overnight courier service with confirmed receipt, or received by facsimile with confirmation by registered mail to the parties at the respective addresses set forth in the Contract to which these Conditions of Sale apply, provided, for any notice to the Seller a copy thereof shall be sent in the same manner to:  Transcontinental AC UK Ltd., 1 Place Ville Marie, Bureau 3240, Montreal, Quebec H3B 0G1, Canada,  Attention: General Counsel and Corporate Secretary. Each party may change its address by giving similar notice.


  1. No Third Party Rights

Unless the right of enforcement is expressly granted, it is not intended that a third party should have the right to enforce a provision of this Agreement pursuant to the Contracts (Rights of Third Parties) Act 1999 as the same may be amended from time to time.


  1. Waiver; Severability

No waiver by the Seller nor any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision, and no failure to exercise or delay in exercising any right or remedy under the Contract shall constitute a waiver of that right or remedy. The Seller may assign the Contract without the Buyer’s consent. If any provision set forth in these Conditions of Sale is, or at any stage in the future becomes invalid, illegal or cannot be enforced in law, it will not affect the other terms, all of which will stay in force.
[TC-Approved Version May 2021]



1. Scope; Binding Effect.


2. Prices/Payment.

Prices are those in effect at the time of acceptance of a purchase order by Seller. All prices are in U.S. dollars and, unless otherwise agreed, payment terms are “net 30 days” from the date of invoice. Amounts not paid when due will bear a late payment charge of 1% per month or the maximum legal rate, whichever is less. No offset or deduction from any invoice is permitted. Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is in full compliance with its payment and other obligations.

3. Taxes.

All prices are exclusive of any sales, use, revenue, or excise taxes, and customs duties, or other similar charges, all of which will be paid by Buyer.

4. Delivery.

Unless otherwise agreed to by the parties: (a) delivery is FOB Seller’s plant and (b) title and risk of loss will pass to Buyer upon delivery of Products to the carrier at the shipping point. Seller will follow Buyer’s shipping instructions. Absent such instructions from Buyer, Seller will ship by the method it deems most advantageous. Delivery dates are estimates only. Seller will make commercially reasonable efforts to meet specified delivery dates, but will otherwise not be responsible for delayed deliveries.

5. Acceptance.

Buyer will accept or reject Products within 60 days of delivery. Failure to notify Seller in writing of nonconforming Products within such period shall be deemed an unqualified acceptance. Any use of the Products by Buyer which is not related to acceptance testing shall constitute acceptance.

6. Credit Sales.

Prior credit approval and nondelinquent status are necessary before Seller will ship on an open account basis. If at any time the financial responsibility of Buyer, or the credit risk involved, shall become unsatisfactory to Seller, Seller may require cash or satisfactory security prior to shipments or deliveries hereunder. With respect to any credit sale, Buyer grants to Seller a purchase money security interest in the Products sold, and any proceeds thereof, as security for Buyer’s obligation to pay the purchase price, and Buyer agrees to execute any financing statement or other instrument required to perfect such security interest.

7. Credit Memos.

Unapplied cash, credit memos or other discounts against future purchases issued by Seller in connection with Products returned by Buyer must be used by Buyer within 90 days of issuance by Seller, and unless applied by Buyer against the purchase of additional Products within such 90-day period shall expire.

8. Warranty.

Products are warranted to conform to agreed or Seller’s published specifications, subject to customary tolerances, and to be free from defects in material or workmanship that materially impair use. Seller will repair or replace, at its option, any Product found to be defective or nonconforming, provided that: (a) Buyer gives prompt written notice of the defect or nonconformity; (b) Seller has provided written return authorization to Buyer and Buyer has returned the nonconforming Product to Seller, freight prepaid by Seller, and; (c) Seller has reasonably verified Buyer’s claim that the Products are defective or nonconforming. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES OR OBLIGATIONS, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Buyer acknowledges and agrees that the remedies set forth in Section 8 are Buyer’s exclusive remedies for the delivery of defective or non-conforming Products.

9. Hazard Communications.

Seller will provide or make available to Buyer a Material Safety Data Sheet (“MSDS”) for all Products. The Buyer agrees to read and understand the MSDS before using the Products. Buyer will hold Seller harmless from any damage, loss, expense, or claim resulting, directly or indirectly, from use of Products.

10. Limitation of Liability.

IN NO EVENT SHALL SELLER BE LIABLE TO BUYER IN AN AMOUNT EXCEEDING THE PURCHASE PRICE OF THE SUBJECT PRODUCT. IN NO EVENT SHALL SELLER BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS OR REVENUES, LOSS OF CUSTOMERS, OR PLANT DOWNTIME) SUSTAINED FROM ANY CAUSE OR ARISING OUT OF ANY LEGAL THEORY, WHETHER BASED IN CONTRACT, NEGLIGENCE, STRICT TORT LIABILITY, OR OTHERWISE. These limitations include any liability that may arise out of third-party claims. Any lawsuit by Buyer against Seller shall be filed within one year from delivery of the subject Product by Seller. These limitations shall apply notwithstanding any failure of essential purpose or of any limited remedy provided herein. Any technical advice furnished, or recommendation made by Seller or any Seller representative concerning any use or application of any Product is believed to be reliable, but Seller makes no warranty, either express or implied, as to its accuracy or completeness or of the results to be obtained. With regard to any processing of any Product, Buyer assumes full responsibility for quality control, testing, storage and for use of Products provided by Seller in combination with items provided or manufactured by Buyer or by others.

11. Buyer Indemnity.

Buyer assumes full liability and responsibility for compliance with all information and precautions provided to Buyer, and with all laws, statutes, ordinances and regulations of any governmental authority applicable to the processing, transportation, delivery, unloading, discharge, storage, handling, sale and use of each Product and United States export control laws. Buyer further agrees to protect, defend and hold harmless Seller from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys’ fees), penalties, and judgments associated with the processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of any Product after delivery which is (i) inconsistent with any Information provided to Buyer; (ii) in violation of any applicable law, statute, ordinance or regulation of any governmental authority; or (iii) not the result of Seller’s negligence or willful misconduct.

12. Intellectual Property Infringement.

Seller will defend or settle any claim or action brought against Buyer to the extent that it is based upon a claim that Products provided by Seller to Buyer infringe any United States patent, and Seller will pay all costs, damages and attorneys’ fees finally awarded against Buyer in any such action; but such defense, settlements, and payments are expressly conditioned on the following: (a) that Seller is promptly notified in writing by Buyer of any such claim; (b) that Seller is granted in writing sole control of the defense of any such claim and of all negotiations for settlement or compromise; (c) that Buyer cooperates with Seller in a reasonable way to facilitate the settlement or defense of the claim; and (d) that the claim does not arise from modifications not authorized in writing by Seller. Should Products become, or in Seller’s opinion be likely to become, the subject of such a claim of infringement, Buyer will permit Seller, at Seller’s option and expense, to procure for Buyer the right to continue using the Products, or to replace or modify the Product so that it becomes non-infringing and substantially equivalent in function, or to refund to the Buyer the purchase price of the Product. THE FOREGOING IS SELLER’S EXCLUSIVE OBLIGATION WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.

13. Force Majeure.

Seller shall not be responsible for delays caused by acts of God, fires, floods, strikes, war, riot or civil unrest, accidents, delay by suppliers of material or shortages of material, inability to obtain necessary labor, manufacturing facilities, utilities, or transportation, or any other causes beyond Seller’s reasonable control. In the event of Seller’s inability, for any reason, to supply the quantities of Product contemplated by the Agreement, Seller may allocate its available supply among its customers, including affiliates, departments and divisions of Seller, on such basis as Seller may deem commercially reasonable, without liability to Buyer for any failure of performance that may result therefrom.

14. Confidentiality; Intellectual Property.

Proposals, drawings, specifications, pricing and technical data furnished to Buyer by Seller shall: (i) be retained in confidence; (ii) remain the exclusive property of Seller; (iii) not be disclosed by Buyer to third parties or used in any manner not authorized by Seller; and (iv) be returned to Seller upon request. Seller does not by entering into or performing this Agreement transfer, license, or assign to Buyer or any other person or entity any right, title, interest, or license to or in any of Seller’s intellectual property, including, without limitation, patents, trade secrets and trademarks, and all such rights, titles and interests are reserved by Seller. Unless otherwise agreed by the parties in writing, any and all developments and improvements to Products made or implemented by Seller shall be the sole and exclusive property of Seller, regardless of Buyer’s participation therein.

15. Additional Terms.

The rights and liabilities of the parties arising out of or relating to this Agreement will be governed by the laws of the state in which Seller’s facility in which the Products are manufactured is located, excluding application of its conflicts of laws principles and excluding all provisions of the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods. Venue in any lawsuit between the parties will lie exclusively in state or federal courts in the state in which Seller’s facility in which the Products are manufactured is located, and the prevailing party in such litigation will be entitled to recover all reasonable costs, fees and other expenses (in addition to statutory “costs” of litigation), including attorneys’ fees and expenses in connection with any trial, appeal, or petition for review. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES EXPRESSLY WAIVE TRIAL BY JURY IN ANY ACTION ARISING UNDER THE AGREEMENT. This Agreement may not be assigned by Buyer without Seller’s prior written consent. No waiver of any violation or nonperformance of this Agreement in one instance shall be deemed to be a waiver of any subsequent violation or nonperformance. All waivers must be in writing. If any term or provision of this Agreement shall to any extent be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and each term and provision of the Agreement shall be valid and enforced to the fullest extent permitted by law. Nothing in this Agreement shall be construed as creating any direct or beneficial right in or on behalf of any third party. THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS AGREEMENTS, UNDERSTANDINGS, OR REPRESENTATIONS WITH RESPECT TO THE SUBJECT MATTER HEREOF. THIS AGREEMENT MAY NOT BE MODIFIED OR AMENDED EXCEPT IN A WRITING SIGNED BY BOTH PARTIES


75301523.1 0063833-00014 (Rev. July 2018)