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1. ACCEPTANCE. This Purchase Order (“PO”) must be accepted in writing by Supplier. If Supplier fails to accept in writing, any conduct by Supplier which recognizes the existence of a contract pertaining to the subject matter hereof (including shipment of Products) shall constitute an acceptance by Supplier of this PO. Any terms proposed in Supplier’s acceptance of Buyer’s offer that add to, vary from, or conflict with this Agreement are hereby objected to and shall not apply. If this PO has been issued by Buyer in response to an offer, and if any terms of this Agreement are additional to or different from any terms of such offer, then the issuance of this PO by Buyer shall constitute an acceptance of such offer subject to the express condition that Supplier assent to these additional and different Terms and Conditions, and Supplier shall be deemed to have so assented unless Supplier notifies Buyer to the contrary in writing within seven (7) days of receipt of this PO. Any “click-wrap”, “shrink-wrap” or other preprinted terms and conditions provided by Supplier shall be void and of no effect.

2. SPECIFICATIONS. All POs based upon Buyer’s specifications are subject to all the terms and conditions of such specifications. When required by Buyer, Supplier agrees to supply certificates of compliance with specifications or certified analyses.

3. VARIATIONS. No variations in the delivery schedule, price, quantity, specifications or other provisions of this PO will be effective unless agreed to in writing and signed by an authorized representative of Buyer. Buyer shall have the right, by giving written notice to Supplier, to make changes in the drawings or specifications for the Products. Upon receipt of any such notice, Supplier shall proceed promptly to make such changes in accordance with the terms of such notice. Supplier shall deliver to the Buyer as promptly as possible a written statement showing the effect of any such change in the delivery dates and prices, and an equitable adjustment shall be made in the terms of this PO relating thereto. The cost of any such changes must be approved in writing by Buyer.

4. DELIVERY. Time is of the essence and the Products must be received on the dates and at the destination(s) set forth on the face hereof. If Supplier fails to meet any such delivery date, Buyer may, without limiting its other rights and remedies, direct expedited routing, charge excess costs incurred thereby to Supplier, or cancel all or part of this PO. All rejected or over-run goods and Products with Buyer’s printing or identification must be destroyed by Supplier at Supplier’s expense and not sold as surplus. Each bill of lading, case, bundle, packing list and package shall be numbered and labeled with Buyer’s order number. No charges will be allowed for packing or cartage unless specified on the face hereof.

5. TERMINATION. Buyer may terminate this PO or any part hereof upon written notice to Supplier if Supplier defaults any of these Terms and Conditions, including without limitation if any delivery is not made within the time provided, or, if no time is specified,
within a reasonable time, or if the Products are not as specified. Such right shall be in addition to Buyer’s other rights and remedies available under law or in equity, whether set forth in this PO or not.

6. QUALITY. Products are subject to Buyer’s inspection and approval within a reasonable time after delivery. If specifications are not met Products may be rejected by the Buyer and returned at Supplier’s expense. Buyer may elect to reject all of the Products tendered even if only a portion thereof is nonconforming. If Buyer elects to accept nonconforming Products, Buyer, in addition to its other remedies, shall be entitled to an appropriate reduction in price. Payment for any Products shall not be deemed an acceptance thereof.

7. RISK OF LOSS. Unless otherwise specifically provided for herein, Supplier shall be responsible for freight and delivery to the destination specified on the face of this PO. All freight and delivery charges will be paid by Supplier. Notwithstanding anything else herein, Supplier shall bear all risks of loss and damage to Products until final acceptance by Buyer at Buyer’s “ship to” destination specified on the face of this PO. Further, Supplier shall bear the same risks with respect to any Products rejected by Buyer or as to which Buyer has revoked its acceptance, from the time of such rejection or revocation.

8. INVOICES. Supplier’s invoices shall (a) cover not more than one purchase order; (b) be rendered with the purchase order noted thereon, and shall be accompanied by shipping papers. Payment of an invoice shall not constitute acceptance of Products and
shall be subject to adjustment for errors, shortages, defects in the Products, damage to Buyer for which Supplier is partially or wholly responsible, or other failure of Supplier to meet the requirements of this PO.

(a) Supplier warrants that all Products shall: (i) be free from defects in workmanship, material, manufacture, and design; (ii) comply with the requirements of this PO, including all drawings and specifications incorporated herein and samples and warranties furnished by Supplier; (iii) be merchantable and safe for consumer use, and fit and sufficient for the use intended by Buyer; (iv) be free and clear of any lien, security interest or other adverse claim against title; (v) comply with all applicable laws of the states and of the United States; (vi) not be adulterated or misbranded within the meaning of any State food and drug laws or the Federal Food, Drug and Cosmetic Act, or not be an article which may not under the provisions of section 404 or 505 of the Federal Act or any other applicable Federal, State or local laws, be sold, legally transported or introduced into interstate commerce; and (vii) not infringe any United States or foreign patents, trademarks, trade secrets, copyrights or proprietary rights of any third party. (b) In addition to the warranties in Section 9(a), Supplier warrants that any services provided hereunder will be carried out in a professional and workmanlike manner, by fully qualified personnel (including any individuals specified to perform them). (c) The foregoing warranties shall survive any delivery, inspection, acceptance, and payment by Buyer. (d) Supplier’s warranties shall be effective for the period of time either (i) set forth on the face of this PO, or (ii) one (1) year from the date of Buyer’s final acceptance, whichever is greater. (e) These warranties shall run to Buyer’s customers and users. (f) If any Products furnished hereunder do not meet the warranties specified in this PO, Buyer may, at its option: (i) require Supplier to correct, at no cost to Buyer, any defective or nonconforming Products by repair or replacement within seven (7) days after notice to Supplier; or (ii) return such defective or nonconforming Products at Supplier’s expense to Supplier and recover from Supplier the price thereof; (iii) correct the defective or nonconforming Products itself and charge Supplier with the cost of such correction; or (iv) accept the defective or nonconforming Products at a reduced price.

(a) Supplier shall defend, indemnify and hold Buyer, its affiliated companies, and their respective shareholders, officers, directors, employees, agents, successors, and assigns harmless from and against all claims, damages, judgments, expenses and loss (“Claims”) arising from: (i) the manufacture, sale or use of the Products, (ii) the acts, negligence, omissions or willful misconduct of Supplier; (iii) a breach of any of Supplier’s warranties or any other term of this PO; (iv) Supplier’s negligent, unauthorized or wrongful acts or omissions with regard to the transportation, use, handling, disposal, processing or installation of hazardous materials; (v) a claim that any Products furnished hereunder infringe upon or misappropriate any patent, copyright, trademark, trade secret or other intellectual property right; or (vi) a claim of any lien, security interest or other encumbrance made by a third party; or (vii) a violation of federal or state law, regulation, statute or ordinance; or (viii) failure to comply with the Confidentiality obligations set forth herein. (b) If use of the Products is enjoined or likely to be enjoined due to infringement, Supplier shall, at its own expense, either procure for Buyer the right to continue the use of the Products, or provide an acceptable replacement or modification to avoid infringement. (c) Supplier shall carry and maintain insurance coverage satisfactory to Buyer to cover its obligations in this PO, including without limitation, the following insurance with the respective minimum limits per occurrence: Commercial General Liability – $2,000,000, Workers’ Compensation – statutory, Business Automobile Liability – $1,000,000 and Product Liability – $2,000,000. Upon request, Supplier shall submit to Buyer certificates of insurance showing proof of such coverages. All such policies shall name Buyer as an additional insured.

11. CONFIDENTIALITY. In its performance of this PO, Buyer may disclose to Supplier or Supplier may have access to certain Confidential Information of Buyer. “Confidential Information” means any data, reports, computer programs, drawings, models, documentation, business or research plans, specifications, designs or information transmitted by Buyer to Supplier in connection with this PO, and any other information that is of value to Buyer and is treated as confidential, including without limitation, the fact that Supplier has furnished or contracted to furnish to Buyer any Products. All Confidential Information of Buyer shall remain the property of Buyer. Supplier shall keep all Confidential Information of Buyer confidential and use such information only as necessary to fulfill Supplier’s obligations pursuant to this PO. All originals, copies, summaries and  derivations of Confidential Information in whatever form shall be returned to Buyer upon completion of this PO and upon Buyer’s request.

(a) Supplier agrees that all writings, drawings, designs, copyrightable material, inventions (whether or not  patentable), improvements, discoveries, developments, and all works of authorship created by Supplier in performance of services hereunder, including all worldwide rights therein under patent, copyright, trade secret, confidential information, or other intellectual property right (collectively “Work Product”), are the sole property of Buyer. Supplier assigns to Buyer all right, title and interest in and to all such Work Product, and shall perform such further acts needed to transfer, perfect, and defend Buyer’s ownership of the Work Product. Supplier shall require its permitted subcontractors to execute written assignments of Work Product to effect such assignment. (b) To the extent that Supplier or third parties retain ownership rights in materials delivered with the Products, or upon which the Work Product is based, Supplier hereby grants to Buyer an irrevocable, worldwide, sublicenseable, non exclusive, royalty-free right and license to make, have made, modify, use, distribute, publicly perform or display, sell, offer to sell, and import such materials. Supplier warrants that it owns or has acquired rights in all such intellectual property necessary to grant the licenses and intellectual property rights set forth in this Intellectual Property section.

13. LIENS. If the Products are of such a nature that Supplier would be entitled to file a lien against Buyer’s real or personal property, Supplier shall submit a Release and Waiver of Lien and all applicable subcontractor’s and materialman’s Release and Waivers of Lien in a form acceptable to Buyer prior to final payment by Buyer.

14. WORK ON BUYER’S PREMISES; OCCUPATIONAL HEALTH SERVICES. If the services are to be performed on Buyer’s premises, Supplier shall comply with all applicable safety laws and Buyer’s then current safety and other applicable policies and procedures. Supplier shall provide Buyer with a  complete list of all chemicals, hazardous materials, and ingredients in the composition of goods or used in the performance of the services hereunder and a copy of the Material Safety Data Sheet for such chemicals and hazardous materials. The submission of such list by Supplier shall not relieve Supplier of exclusive responsibility for the safe transportation, use, storage, and disposal of such materials prior to acceptance by Buyer. All chemicals and hazardous materials brought by Supplier to Buyer’s premises shall bear a label stating the identity of the chemical or material and the hazards associated therewith.

15. ASSIGNMENT. No right or obligation under this PO (including the right to receive monies due and to become due hereunder) shall be assigned or subcontracted by Supplier without the prior written consent of Buyer, and any purported assignment without such consent shall be void.

16. BUYER PROPERTY. All drawings, artwork, data, material, supplies, equipment, tooling, dies, molds, fixtures, and patterns furnished or paid for by Buyer shall be and remain Buyer’s exclusive property, and shall be used by Supplier only in performance of this PO. Such property, while in Supplier’s custody and control, shall be held at Supplier’s sole risk and, upon Buyer’s request, shall be returned to Buyer in good condition, normal wear and tear excepted.

17. INDEPENDENT CONTRACTOR. Supplier shall perform this Agreement as an independent contractor, and Supplier is not an employee, agent, partner or representative of Buyer. Supplier shall conduct its business under its own name as an independent contractor, and is hereby expressly prohibited from holding itself out as an employee, agent, partner or representative of Buyer.

18. RECORDS. Supplier will maintain all records, books and other documents evidencing Products supplied hereunder for a minimum of four (4) years from the completion or termination of this PO.

19. DEBARMENT CLAUSE. Supplier certifies that Supplier and its principals, are not debarred, suspended or proposed for debarment by the Federal Government. Debarment suspension or proposed debarment by the Federal Government will constitute grounds for automatic termination of this PO by Buyer.

20. GOVERNING LAW. The parties agree that this PO and the acceptance thereof shall be a contract made in the state of North Carolina, USA, that its formation and performance are governed by the laws thereof and that the courts in Wake County, North Carolina shall have exclusive jurisdiction of any cause of action arising from this PO. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this PO.

21. INTEGRATION. This PO, including any specifications or exhibits that may be referred to or attached hereto, sets forth the complete and final agreement of the parties and supersedes all prior understandings, transactions and communications, or writings with respect to the matters referred to herein.