MAK WOOD INC.

TERMS AND CONDITIONS OF SALE

APPLICABILITY.  

These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of goods (“Goods”) by MAK WOOD INC., a Wisconsin corporation with a principal place of business located at 1235 Dakota Drive, #E, Grafton, Wisconsin 53024 (“Seller”) to the buyer (“Buyer”), whether or not identified in any accompanying quotation, confirmation of sale or invoice (collectively, a “Sales Confirmation”). Notwithstanding anything herein to the contrary, if a written contract signed by both Parties is in existence covering the sale of the Goods covered hereunder (a “Prior Contract”), the terms and conditions of such Prior Contract shall prevail to the extent they are inconsistent with these Terms. Seller and Buyer may be referred to herein individually as a “Party” or collectively as the “Parties.”
These Terms and the applicable Sales Confirmation (collectively, this “Agreement”) comprise the entire agreement between the Parties and, except for any Prior Contracts, supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement shall prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or any other purchase confirmation or other transactional documents or terms (collectively, an “order”). Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend this Agreement. Any other terms and conditions shall be considered null and void and not enforceable.

ACCEPTANCE.  

All orders and modifications to orders are subject to acceptance or rejection by Seller in its sole discretion. Seller will acknowledge acceptance or rejection of Buyer’s orders in writing within a reasonable period of time following receipt; provided, however, the shipment of Goods will also constitute Seller’s acknowledgment and acceptance of Buyer’s order.

PRICE; TAXES. 

All prices for Goods are stated and payable in U.S. dollars. The price for Goods shall be Seller’s price in effect as of the date that Seller accepts the order, unless Seller has quoted a different price for the Goods in a written quotation specifically issued to Buyer (a “Quotation”). Each Quotation shall remain open for the time period stated therein or, if no time period is stated in the Quotation, for a period of thirty (30) days from the date of the Quotation; provided, however, Seller has the right to adjust or increase the price of any Goods listed in a Quotation, at or prior to acceptance of Buyer’s order, based on raw material increases for such Goods. The price for Goods does not include any foreign, federal, state or local sales, use, VAT or value-added, excise, privilege, use or other taxes or any tariffs, duties or other charges imposed by any foreign, federal, state, or local governmental authorities arising from the sale, purchase, transportation, delivery, storage, use or consumption of the Goods (collectively, “Taxes”). Buyer shall pay, and reimburse Seller if it pays, any and all Taxes, except for those based on Seller’s net income. If Seller is required by any governmental authority to collect and pay any Taxes on Buyer’s behalf, Seller may invoice Buyer for such amounts, which Buyer shall pay in accordance with the terms of this Agreement. If applicable, Buyer shall provide Seller with appropriate Tax exemption certificates. Seller shall be under no obligation to contest the validity of any Taxes or to prosecute any claims for refunds or returns on behalf of Buyer.

INVOICES; PAYMENT. 

Seller shall issue an invoice to Buyer via mail, email or other form of electronic transmission upon each shipment of Goods. Unless different payment terms have been granted by Seller in writing, whether pursuant to approval of a credit application or otherwise, Buyer shall pay each invoice in full within thirty (30) days of the invoice date. Interest will be added to all amounts outstanding more than thirty (30) days after the invoice date at the rate of 1.5% per month or the maximum rate of interest allowed by applicable law, whichever is lower. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller. If Buyer fails to make any payments in accordance with this Agreement, Seller may at its sole option: (a) defer shipments until Buyer re-establishes satisfactory credit; (b) cancel the unshipped portion of any order and invoice Buyer for incurred costs and reasonable profit without any liability on the part of Seller for failure to ship; (c) make shipment to Buyer on a C.O.D. or cash in advance basis; or (d) terminate this Agreement in accordance with Section 13(i) below. Each of the foregoing remedies shall be in addition to any other rights and remedies available to Seller.

DELIVERY. 

Delivery or shipment of Goods shall at all times be subject to the approval of Seller’s credit department. Unless otherwise agreed to in writing by the Parties, Seller shall ship all Goods F.O.B. (Free on Board as defined under the Wisconsin Uniform Commercial Code), place of shipment, which shall be Seller’s plant or facility. Title to and all risk of loss or damage to the Goods shall pass to Buyer upon delivery of the Goods at Seller’s plant or facility to the carrier for shipment, and Seller shall not be liable for any delays, loss, or damage in transit. Unless Buyer provides Seller’s shipping department with shipping instructions in advance, Seller is authorized to make shipping arrangements on Buyer’s behalf and Buyer shall be responsible for all costs and expenses associated therewith. Seller will use reasonable commercial efforts to fulfil each order by the delivery date stated in the order but stated delivery dates are approximate only and Seller shall not be liable for any losses or damages associated with Seller’s inability to meet any such delivery dates or other deadlines. Further, Seller reserves the right to re-adjust shipment schedules without liability. Unless previously agreed to in writing by Seller, Seller will not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges. 

INSPECTION OF GOODS. 

Buyer shall inspect Goods received from Seller within fifteen (15) days after Buyer’s receipt of such Goods (the “Inspection Period”) and either accept or, only if such Goods are Nonconforming Goods, reject such Goods. “Nonconforming Goods” means only the following: (a) the Goods shipped are different than identified in Buyer’s order; (b) the Goods packaging incorrectly identifies its contents; or (c) the Goods are subject to damage or defects that are covered by the Warranty stated in Section 7 below. Buyer will be deemed to have accepted Goods unless it provides Seller with written notice of any Nonconforming Goods prior to expiration of the applicable Inspection Period, stating all defects and nonconformities, and furnishing such other written evidence or other documentation as may be reasonably requested by Seller (including the subject Goods, or a sample thereof, which Buyer contends are Nonconforming Goods). If Seller determines that such Goods are Nonconforming Goods, Seller shall, at its option, either (i) replace such Nonconforming Goods with conforming Goods, or (ii) refund to Buyer the amount paid by Buyer for such Nonconforming Goods. Buyer may not return any Nonconforming Goods to Seller without first obtaining written authorization from Seller. Buyer shall ship, at Seller’s option and expense, all Nonconforming Goods to Seller’s designated facility or properly dispose of such Non-Conforming Goods in accordance with Seller’s instructions (and provide written certification of such disposal). If Seller exercises its option to replace Nonconforming Goods, Seller shall ship to Buyer, at Seller’s expense, the replacement Goods. Except as provided under this Section 6 and in Section 7 below, Buyer has no right to return Goods shipped to Buyer pursuant to this Agreement. SUBJECT TO BUYER’S RIGHTS UNDER SECTION 7 BELOW, THE REMEDIES SET FORTH IN THIS SECTION 6ARE BUYER’S EXCLUSIVE REMEDIES FOR THE DELIVERY OF NONCONFORMING GOODS.

LIMITED GOODS WARRANTY. 

Subject to the other provisions of this Section 7, Seller warrants to Buyer that, as of the date of shipment, the Goods will conform with (a) Seller’s published specifications for such Goods; and (b) the certificate of analysis provided by Seller in connection the shipment of such Goods (collectively, the “Warranty”): 
 
Warranty Exclusions. The Warranty does not apply or extend to claims, damages or losses resulting from or relating to: (i) improper handling or storage of the Goods by anyone other than Seller; (ii) carrier handling; (iii) Goods becoming or deemed to be adulterated or misbranded due to Buyer’s acts or omissions; (iv) neglect, accident, misuse, abuse or other causes or events beyond Supplier’s control; (v) failure to adhere to Seller’s handling and/or storage sheets or instructions; or (v) use of the Goods other than for their intended purposes; or (vi) modifications of the Goods not authorized by Seller in writing. 

(c)            Warranty Claim Procedure. Seller shall not be liable for a breach of the Warranty unless: (i) Buyer gives written notice of the defect by no later than thirty (30) days after receipt of the applicable Goods; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.

(d)            Exclusive Remedies. SELLER’S SOLE LIABILITY AND BUYER’S EXCLUSIVE REMEDIES FOR ANY DEFECTIVE OR NONCONFORMING GOODS COVERED BY THE WARRANTY STATED IN SECTION 7(a) ABOVE SHALL BE LIMITED, AT SELLER’S OPTION, TO REPLACEMENT OR CREDIT FOR THE PURCHASE PRICE PAID BY BUYER FOR SUCH DEFECTIVE OR NONCONFORMING GOODS, PROVIDED THAT SELLER HAS RECEIVED WRITTEN NOTICE AND SATISFACTORY EVIDENCE OF THE DEFECT OR NONCONFORMITY WITHIN THIRTY (30) DAYS AFTER BUYER’S RECEIPT OF SUCH GOODS. FURTHER, BUYER SHALL COMPLY WITH ALL REASONABLE INSTRUCTIONS OF SELLER REGARDING THE DISPOSAL OF DEFECTIVE OR NONCONFORMING GOODS. 

(e)            No Other Express or Implied Warranties. THE WARRANTIES STATED IN SECTION 7(a) ABOVE ARE THE SOLE AND EXCLUSIVE WARRANTIES OF SELLER WITH RESPECT TO THE GOODS, AND SELLER MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, AS TO THE CONDITION, VALUE, USEFULNESS, DESIGN, OR OPERATION OF THE GOODS; AND SELLER HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND GUARANTEES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF ANY THIRD PARTY RIGHTS.

8.              LIMITATIONS OF LIABILITY. 

No Consequential, Incidental Damages. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL SELLER OR ANY OF ITS AFFILIATES OR SUBSIDIARIES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUE, DOWN TIME, BUSINESS INTERRUPTION, DIMINUTION IN VALUE, OR OTHER ECONOMIC LOSSES), WHETHER IN AN ACTION IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF SELLER HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. 

Aggregate Damages Cap. EXCEPT AS STATED IN THIS SECTION 8(b) BELOW SELLER’S AGGREGATE LIABILITY FOR ALL CLAIMS, DAMAGES OR LOSSES RELATING IN ANY MANNER TO THIS AGREEMENT OR THE GOODS, REGARDLESS OF THE TYPE OR NATURE OF THE ACTION, SHALL BE LIMITED TO THE AMOUNTS PAID BY BUYER TO SELLER IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT WHICH GAVE RISE TO THE CLAIM OR $500,000.00, WHICHEVER IS LESS. SELLER HAS RELIED ON THE FOREGOING LIMITATION AND BUYER EXPRESSLY ACKNOWLEDGES THAT THIS PROVISION IS ESSENTIAL IN THE ESTABLISHMENT OF THE PRICING OF THE GOODS. THE LIMITATIONS ON, AND EXCLUSIONS FROM, LIABILITY SET FORTH IN THIS SECTION 8 SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE; PROVIDED HOWEVER, THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 8(b) ABOVE SHALL NOT APPLY TO LIABILITY RESULTING FROM SELLER’S RECKLESSNESS OR WILLFUL MISCONDUCT.

RECALL. If Seller or any governmental authority having jurisdiction over the Goods finds that a Good contains a safety hazard, an unsafe condition, a serious defect or deficiency making it necessary that the affected Goods be recalled or withdrawn (collectively, a “Recall”), Seller shall, in its sole discretion, determine the corrective actions to be taken, subject to the requirements of applicable law. If Buyer becomes aware of any information that may result in a Recall or if Buyer receives any inquiry from governmental authorities or the media relating to the Goods or their distribution, Buyer shall: (a) notify Seller immediately in writing, and (b) except to the extent Buyer has a legal requirement to disclose information to a governmental authority, Buyer agrees that Seller shall have sole discretion with regard to all decisions relating to whether to institute a Recall, as well as all decisions concerning any Recall strategy and execution. Buyer will cooperate with Seller in executing any Recall, including recovering and disposing all Recalled Goods, and coordinating with the Seller regarding any communication with foreign, federal, state or local governmental authorities concerning a potential or actual Recall. 

INDEMNIFICATION. Buyer shall defend, indemnify and hold Seller, its affiliates and subsidiaries, and its and their respective officers, directors, owners, members, employees, representatives, and agents harmless from and against any and all demands, claims, suits, proceedings, penalties, injuries, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and other costs and expenses of litigation) resulting from or otherwise connected with any: (a) bodily injury, death or property damage caused by Buyer or its employees’ or agents’ acts or omissions with respect to the Goods; (b) breach or default of any representation, covenant, term or condition of this Agreement by Buyer or its employees or agents; (c) negligent or more culpable acts or omissions (including recklessness or willful misconduct) by Buyer or its employees or agents; or (d) failure by Buyer or its employees or agents to comply with applicable laws, statutes, rules, regulations or orders.

INTELLECTUAL PROPERTY RIGHTS.

Definition of Intellectual Property Rights. As used in this Agreement, “Intellectual Property Rights” means all industrial and intellectual property rights comprising or relating to: (i) patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other governmental authority-issued indicia of invention ownership (including inventor’s certificates, petty patents and patent utility models); (ii) trademarks, service marks, trade dress, trade names, brand names, logos, corporate names, product or strain numbers or similar identifications, and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing (collectively, “Trademarks”); (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, URLs, and social media accounts and content; (iv) works of authorship, data, formulas, formulations, processes, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works; (v) trade secrets and inventions; and (vi) all other intellectual or industrial property, and allrights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of theforegoing, however arising, in each case whether registered or unregistered and including all registrations and applications for,and renewals or extensions of, such rights or forms of protection pursuant to the applicable laws of any jurisdiction in any part of the world.

(b)          Ownership. Buyer acknowledges and agrees that: (i) Seller (or its licensors) will retain all Intellectual Property Rights used to create, embodied in, used in and otherwise relating to the Goods and any of their component parts; (ii) any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; (iii) except as expressly stated in this Agreement, Buyer shall not acquire any ownership interests or license rights in any of Seller’s Intellectual Property Rights; (iv) any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be; (v) if Buyer acquires any Intellectual Property Rights in or relating to any product (including any Good) purchased under this Agreement (including any rights in any trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either Party; and (vi) Buyer shall use Seller’s Intellectual Property Rights only in accordance with this Agreement and any instructions of Seller.

(c)          Prohibited Acts. Buyer shall not: (i) take any action that may interfere with any of Seller’s rights in or to Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof; (ii) challenge any right, title or interest of Seller in or to Seller’s Intellectual Property Rights; (iii) make any claim or take any action adverse to Seller’s ownership of Seller’s Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for Seller’s Trademarks or any other Trademark that is similar to Seller’s Trademarks or that incorporates Seller’s Trademarks in whole or in confusingly similar part; (v) use any mark, anywhere, that is confusingly similar to Seller’s Trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products of Seller or Goods  purchased under this Agreement or any Seller Trademark; (vii) misappropriate any of Seller’s Trademarks for use as a domain name; (vii) alter, obscure or remove any of Seller’s Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including Goods), marketing materials or other materials that Seller may provide; or (vii) modify, alter, adapt, decompile, disassemble, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover or design around any part of Seller’s Intellectual Property Rights or Confidential Information (as defined in Section 12(a)(i) below). 

(d)          Trademark License. Subject to the terms and conditions of this Agreement, Seller grants to Buyer (i) with respect to MAKTrek 3D Goods, a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to display the “MAKTrek® 3D” trademark of Seller (U.S. Registration No. 4595591) and Seller’s unique strain number(s), or (ii) with respect to MAKTrek Goods, a limited, revocable, non-exclusive, non-transferable, and non-sublicensable license to display the “MAKTrek®” trademark of Seller (U.S. Registration No. 4595591) and Seller’s unique strain number(s) (collectively, the “Licensed Trademark”), provided that, the license granted to Buyer under this Section 11(d) is strictly limited to displaying the Licensed Trademark only on labels, Buyer’s website, and marketing materials created by Buyer for those specific Goods purchased by Buyer under this Agreement or for products made by Buyer which incorporate those specific Goods purchased by Buyer under this Agreement, and for no other purpose whatsoever. For the avoidance of doubt, Buyer may not use or display the Licensed Trademarks on any other goods or services other than in connection with those Goods purchased hereunder. In connection therewith, Buyer shall comply with those reasonable requirements provided by Seller from time to time regarding the style, appearance, and usage of the Licensed Trademarks and shall ensure that all uses of the Licensed Trademark under this Agreement comply with all applicable laws. Buyer shall use proper notice symbols and legends as may be required under applicable law to maintain the Licensed Trademark and Seller’s rights therein. Buyer acknowledges and is familiar with the high standards and reputation for quality symbolized by the Licensed Trademark as of the date of this Agreement, and Buyer shall, at all times, conduct its business and use the Licensed Trademark in a manner at least consistent with such quality standards and reputation. Seller may exercise quality control over all uses of the Licensed Trademarks by Buyer in order to maintain the validity of and protect the goodwill associated with the Licensed Trademark. For the purpose of monitoring Buyer’s compliance with Seller’s quality standards and the other requirements set forth in this Section 11(d), (a) Buyer shall submit to Seller a representative sample of any use of the Licensed Trademark by Buyer for Seller’s prior review and approval, and (b) at Seller’s reasonable request and at Seller’s expense, Seller (or its representative) may inspect Buyer’s facilities, on reasonable notice and during normal business hours. Buyer acknowledges and agrees that, based on the special relationship of trust between the Parties, Seller may reasonably rely on Buyer to perform any inspection or review necessary to ensure Buyer’s compliance with Seller’s quality standards and the other requirements set forth in this Section 11(d). The Parties acknowledge and agree that any use of the Licensed Trademark made by Buyer as of the effective date of this Agreement meets Seller’s quality standards and the other requirements set forth in this Section 11(d) and are hereby deemed approved by Seller. Approval of any use by Buyer of the Licensed Trademark, once given by Seller, will continue in effect, without need for future approval, so long as Buyer’s use of the Licensed Trademark in connection with the Goods continues to be substantially consistent with such previously approved use. All goodwill associated with the use of the Licensed Trademarks shall inure to the benefit of Seller. Upon Seller’s request, Buyer shall promptly cease or change the manner in which it displays the Licensed Trademark in connection with the Goods. The Parties acknowledge and agree that Buyer was not and will not be required to pay any direct or indirect fee to Seller for the license granted to Buyer under this Section 11(d). Other than the express license granted by Seller under this Section 11(d), Seller does not grant any further right or license, by implication, estoppel or otherwise, to its Licensed Trademark. Seller has the sole right, in its discretion and at its expense, to file, prosecute, and maintain all applications and registrations for the Licensed Trademark. Buyer shall provide, at the request of Seller and at Seller’s expense, all necessary assistance with such filing, maintenance, and prosecution. Buyer shall promptly notify Seller in writing of any actual, suspected, or threatened infringement, dilution, or other conflicting use of the Licensed Trademark by any third party of which it becomes aware. Seller has the sole right, in its discretion, to bring any action or proceeding with respect to any such infringement, dilution, or other conflict and to control the conduct of any such action or proceeding (including any settlement thereof). Buyer shall provide Seller with all assistance that Seller may reasonably request, at Seller’s expense, in connection with any such action or proceeding. Seller will be entitled to retain any monetary recovery resulting from any such action or proceeding (including any settlement thereof) for its own account.

CONFIDENTIALITY.

Definitions. As used in this Agreement, the following capitalized terms shall be as defined below: 

“Confidential Information” means information and materials (whether oral, written, recorded magnetically or electronically or otherwise stored, and whether or not marked, designated or otherwise identified as “confidential”) which is possessed by or developed for Seller and which relates to Seller’s existing or potential business, which information and materials are not reasonably ascertainable by Seller’s competitors or by the general public through lawful means, and which information and materials Seller treats as confidential. Confidential Information includes but is not limited to: trade secrets, as that term is defined under applicable law; past, current and proposed or potential research; discoveries, ideas, and patent applications; compositions, formulas, and formulations; data, to include manufacturing data and test data; ingredients, materials, and specifications; operations and strategies; technology, developments, inventions, improvements, and innovations; processes, and methods, to include blending processes and procedures; designs and drawings (CAD and otherwise); proprietary software, firmware, or hardware; marketing and business plans; customer lists and information; vendor and supplier lists and information; contracts; procurement and sales activities and procedures; promotions, costs, pricing, rebates, credit, and financial information. Confidential Information shall also include all documents, materials, notes, analysis, studies, and summaries prepared by Buyer containing or based on, in whole or in part, the Seller’s Confidential Information. For the avoidance of doubt, Seller’s ingredient lists and composition sheets or documents shall be considered and constitute the Confidential Information and trade secrets of Seller. 
“Representative” individually means, and “Representatives” collectively mean, the employees, officers, directors, partners, managers, shareholders, attorneys, successors and permitted assigns of Buyer

Exclusions from Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that, as established by documentary evidence: (i) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 12 by Buyer or any of its Representatives; (ii) is or becomes available to Buyer on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was known by or in the possession of Buyer or its Representatives prior to being disclosed by or on behalf of Seller; or (iv) was or is independently developed by Buyer without reference to or use of, in whole or in part, any of Seller’s Confidential Information.  For clarity, specific items of Confidential Information shall not be deemed to be within one or more of the above exceptions merely because they are embraced by more general information that is within one or more of such exceptions. Further, any combination of specific items of Confidential Information shall not be deemed to be within one or more of the above exceptions merely because such specific items by themselves fall within such exceptions.

Protection of Confidential Information. Subject to Section 12(d) below, Buyer shall, for ten (10) years from receipt of such Confidential Information: (i) protect and safeguard the confidentiality of Seller’s Confidential Information with at least the same degree of care as Buyer would protect its own confidential information, but in no event with less than a commercially reasonable degree of care; (ii) not use Seller’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose or divulge any of Seller’s Confidential Information to any person or entity, except to Representatives of Buyer who have a strict need to know such Confidential Information to assist Buyer to exercise its rights or perform its obligations under this Agreement, provided that, prior to disclosure, each Representative is informed of the confidential nature of Seller’s Confidential Information and is bound by obligations of confidentiality and non-use with respect to such Confidential Information that are no less restrictive than the terms and conditions of this Section 12. In any event, Buyer shall be fully liable for any breach of this Section 12 by its Representatives.

Protection of Trade Secrets. Notwithstanding anything in this Agreement to the contrary, with respect to Confidential Information of Seller that constitutes a trade secret under applicable law, the rights and obligations of the Parties under this Section 12 shall survive until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Buyer or its Representatives.

Disclosures Required by Legal Process or Authority. If Buyer is compelled by subpoena, court order or other legal process or authority (collectively, “Legal Process”), to disclose any Confidential Information of Seller, then: (i) Buyer shall provide prompt written notice of the Legal Process so that the Seller may seek a protective order or other remedy limiting its disclosure ; (b) Buyer shall provide reasonable assistance in opposing such disclosure or seeking a protective order or other limitations on disclosure. If, after providing such notice and assistance as required herein, Buyer remains subject to the Legal Process, Buyer (or its Representatives to whom such Legal Process is directed) shall disclose no more than that portion of the Confidential Information which, on the advice of Buyer’s legal counsel, such Legal Process specifically requires Buyer to disclose and shall use commercially reasonable efforts to obtain assurances that such Confidential Information will be afforded confidential treatment. Notwithstanding the forgoing, any disclosure of Confidential Information by Buyer pursuant to Legal Process shall not relieve Buyer from its obligations under this Section 12. 

Ownership & Return of Confidential Information. Seller shall remain the exclusive owner of, and retain all rights in its Confidential Information. No disclosure of Confidential Information by Seller shall be construed as an assignment, grant, option, license, or other transfer of any such rights or interests whatsoever to Buyer or any other third party. At any time and upon Seller’s request, Buyer shall promptly return to Seller (or if directed by Seller, promptly destroy and certify in writing that it has done so) all Confidential Information of Seller, along with all copies, abstracts, summaries, writings, documents or other materials containing or based upon, in whole or part, any Confidential Information of Seller. Further, Buyer shall permanently erase all of Seller’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Such archived copies must be destroyed upon the normal expiration of Buyer’s backup files, provided that Buyer shall continue to be bound by the terms and conditions of this Section 12 with respect to such archived Confidential Information. The return or destruction of such documents and materials shall in no way relieve Buyer of any obligation of confidentiality and non-use contained herein.

TERMINATION. In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement and all orders hereunder with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

EXCUSED PERFORMANCE. Seller shall not be in default of, or liable for any delay in the performance of, this Agreement by reason of any of the following: acts of God; flood, fire, tornado, explosion, or other natural or man-made disaster; epidemic, pandemic, viral or bacterial outbreak; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest; governmental orders, laws, emergency proclamations, or quarantine restrictions; actions, embargoes or blockades in effect on or after the effective date of this Agreement; action by any governmental authority or agency; unavailability or shortage of materials; unavailability or shortage of labor; strikes, labor stoppages or slowdowns or other industrial disturbances; shortage of adequate power or transportation facilities; interruptions or degradations in telecommunications, computer, network, or electronic communications systems, cyber-attacks, ransomware; and/or other events (whether or not similar in type or nature to the previously listed events) beyond the control of Seller (each a “Force Majeure Event”). In the event of a Force Majeure Event, (a) Seller’s performance under this Agreement will be postponed by such length of time as may be reasonably necessary to compensate for the delay caused by or resulting from the Force Majeure Event, (b) Seller may allocate its inventory of Goods to its buyers (including Buyer) in any manner it determines, in good faith, to be fair and equitable, and (c) at Seller’s option, terminate this Agreement and/or cancel any order impacted by the Force Majeure Event, without liability. 
 
NO WAIVER. No waiver of this Agreement or any of its provisions is valid unless expressly agreed to in a writing signed by Seller. No waiver by Seller of any default under this Agreement is a waiver of any other or subsequent default. The failure of Seller to insist upon strict and timely performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that Seller may have under this Agreement or at law, in equity or otherwise, and shall not be deemed a waiver of any subsequent default by Buyer in performance of the terms and conditions of this Agreement. 

MODIFICATION. No modification of this Agreement or any of its provisions by Buyer is valid unless expressly agreed to in a writing signed by an authorized representative of Seller. 

NO THIRD-PARTY BENEFICIARIES. Except as set forth in this Section, the Parties do not confer any rights or remedies upon any person, business or entity other than the Parties to this Agreement and their respective successors and permitted assigns. The Parties hereby designate the indemnitees stated in Section 10 of this Agreement as third-party beneficiaries for the purpose of enforcing their respective rights under Section 10. 

SEVERABILITY. If a court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the Parties expressed in this Agreement.

RELATIONSHIP OF THE PARTIES. Seller shall operate as an independent contractor in supplying any Goods under this Agreement. Nothing in this Agreement shall be construed to create a joint venture or partnership between the Parties. The officers, employees and agents of one Party shall not be considered officers, employees or agents of the other Party for any purpose whatsoever. Buyer is not authorized to assume or create any obligation or responsibility, including but not limited to, contractual obligations or obligations based on warranties or guarantees, on behalf of or in the name of Seller.

HEADINGS. The section headings in this Agreement are for convenience of reference only and shall not be deemed to alter or otherwise affect the meaning or interpretation of any provision hereof.

ASSIGNMENT. Buyer may not assign any of its rights, duties or obligations under this Agreement without Seller’s prior written consent. 

REMEDIES. Each of the rights and remedies of Seller under this Agreement is cumulative and in addition to any other or further remedies provided under this Agreement or at law, in equity or otherwise.

ATTORNEYS’ FEES. In the event Seller is required to retain legal counsel or to initiate any arbitration or litigation to enforce or interpret the terms and conditions of this Agreement or to collect any sums due Seller under this Agreement, Buyer shall, upon demand, pay or reimburse Seller for all reasonable attorneys’ fees and costs and expenses of litigation incurred by Seller. 

SURVIVAL. All of the agreements, representations, warranties, and indemnities made by Buyer in this Agreement shall survive the expiration or termination of this Agreement, subject only to the applicable statutes of limitation. 

NOTICES. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

GOVERNING LAW. This Agreement shall be construed and governed under the laws of the State of Wisconsin, without application of conflict of law principles or rules. The Parties hereby exclude 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, each as amended. 

RESOLUTIONS OF DISPUTES. In the event of any dispute or controversy between Seller and Buyer arising out of or in any way related to this Agreement or any Goods (each a “Dispute”), the Parties shall attempt in good faith to resolve through negotiation such Dispute. Either Party may initiate negotiations of any Dispute by providing written notice to the other Party, setting forth the nature of the Dispute. The recipient of such notice will respond in writing within ten (10) calendar days with a statement of its position on and recommended solution to the Dispute. If the Dispute is not resolved by this exchange of correspondence, then representatives of each Party with full settlement authority will meet at a mutually agreeable time and place within thirty (30) calendar days of the date of the initial notice in order to exchange relevant information and perspectives, and to attempt to resolve the Dispute. If the Dispute is not resolved by these negotiations, such Dispute shall be subject to the provisions of Section 28 below.

SUBMISSION TO JURISDICTION. Any legal suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transactions contemplated hereby, whether in contract, tort or otherwise, shall be instituted exclusively in the federal courts of the United States of America or the courts of the State of Wisconsin, in each case located in the City of Milwaukee and County of Milwaukee. Each of the Parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding that is brought in any such court has been brought in an inconvenient form. 

WAIVER OF JURY TRIAL. Each Party hereto hereby acknowledges and agrees that any controversy that may arise under this Agreement is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.

EQUITABLE REMEDIES. Buyer acknowledges that a breach or threatened breach by Buyer of any of its obligations under this Agreement would give rise to irreparable harm to Seller, for which monetary damages would not be an adequate remedy, and hereby agrees that in the event of a breach or a threatened breach by Buyer of any such obligations, Seller shall, in addition to any and all other rights and remedies that may be available to them in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).