Terms and Conditions  
 

1. Acceptance of Offer; Other Provisions Invalid

a. A Purchase Order constitutes an offer by Buyer to Seller and becomes a binding contract when Seller accepts it either by acknowledgment or by commencement of performance. Seller's acceptance of a Purchase Order is acceptance of this Agreement including its terms and conditions and of no other terms and conditions. No revision of a Purchase Order is valid unless in writing and signed on behalf of Buyer by the person issuing the original Purchase Order, his or her Division Manager, or an authorized officer of Buyer.

b. No conditions stated by Seller in accepting or acknowledging any Purchase Order shall bind Buyer if in conflict with, inconsistent with, or in addition to the terms and conditions of this Agreement unless expressly accepted in writing and signed by an authorized officer of Buyer. In the event of a conflict between the provisions of a Purchase Order, which includes this Agreement and these terms and conditions, and Seller's acceptance or acknowledgement, the terms of the Purchase Order govern. Buyer objects to and rejects any proposal for additional or different terms or any attempt by Seller to vary in any degree the terms of a Purchase Order in Seller's acceptance or acknowledgment.

2. Packing; Transportation Costs; Marking; Documentation

Seller shall pack, mark and ship all goods covered by a Purchase Order in strict accordance with carrier requirements and Buyer's instructions to insure lowest transportation costs. Seller shall not charge for packing, boxing, storage or returnable cartons. Seller will mark goods in each delivery as instructed by Buyer and include packing lists and all other appropriate documentation as instructed by Buyer, including size of carton, material, style, printing, FOB point, weight and skid quantity. Buyer may refuse shipments not accompanied by appropriate documentation.

3. Delivery

a. Seller will deliver only in quantities specified by Buyer (consistent with the terms of page 1 of this Agreement). Unless authorized by Buyer in a Purchase Order, Seller will not deliver quantities in excess of those specified by Buyer. In addition to other remedies available to Buyer, goods received in excess of the quantities specified in a Purchase Order or Purchase Order release are subject to return for credit at Seller's expense. Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which shall entitle Seller to a modification of the price for goods or services covered by a Purchase Order. When Buyer does not specify quantities and/or delivery schedules in a Purchase Order, Seller shall deliver goods in such quantities and at such times as Buyer may direct in subsequent releases unless otherwise agreed and specified in a particular Purchase Order. Buyer may return all non-custom goods at any time with no restocking fees.

b. Time is of the essence and significance to Buyer and Seller shall commit to timely delivery and performance of each Purchase Order. Seller will make each delivery of goods at the time or times specified by Buyer in a Purchase Order or in a subsequent release including on a holiday, if required. Seller will not make deliveries earlier than the time or times specified by Buyer in a Purchase Order or in a subsequent release. Seller will keep accurate records of deliveries made to or on behalf of Buyer, including the date, time and place for delivery specified by Buyer and the date, time and place of actual delivery. Seller will prepare and deliver to Buyer reports of its delivery performance at its Quarterly reviews.

c. Any forecasts or estimated quantities provided by Buyer regarding its anticipated need for the items covered by this Agreement are solely for Seller's use in planning its production and delivery requirements. Seller shall work in good faith to provide industry standard 5-7 day lead times, and disclose upon placement of Purchase Order if lead times fall out of those parameters.

d. Seller will not make, and Buyer will not accept, any "C.O.D." shipment.

e. If a failure to meet Buyer's delivery requirements is the fault of Seller, Seller shall bear the incremental cost of expedited transportation of the goods.

4. Acceptance

None of signing for goods, acknowledging receipt of goods, or paying for goods constitutes acceptance of the goods. All goods are subject to quantity verification, quality inspection, and to ensure they meet Buyer's specifications. Buyer's inspection of goods does not constitute acceptance.

5. Changes

Buyer may at any time direct changes to specifications of the goods or otherwise change the scope of the work covered by a Purchase Order. Seller agrees to make any changes promptly to the extent possible. Buyer will equitably adjust any resulting price or performance time adjustment after receipt of documentation in such form and detail as Buyer may direct.

6. Inspection/Safety

a. Buyer or Buyer's customers or their respective agents may enter Seller's facility at reasonable times to inspect the facility, goods, materials and any property of Buyer covered by, or involved in any manner with, a Purchase Order.

b. Seller agrees to approach the performance of the work with the attitude that safety comes first. Seller shall be solely and completely responsible for working conditions and the safety of all persons and property at its facility. All work, materials, equipment and procedures shall comply with the requirements of all applicable federal, state, provincial territories, and local laws, regulations and orders.

7. Non-Conforming Goods

Buyer reserves the right to inspect and test all goods ordered after delivery and acceptance. Buyer may revoke acceptance of any goods that do not meet the specifications contained in the applicable Purchase Order and return the goods to Seller at Seller's expense. To the extent Buyer rejects goods as non-conforming or later revokes acceptance of previously accepted goods, the quantities under the applicable Purchase Order will reduce automatically by the quantities of the rejected goods unless Buyer otherwise notifies Seller. Buyer has the option to either return non-conforming goods to Seller for credit or hold non-conforming goods for disposition in accordance with Seller's instructions and at Seller's risk. In Buyer's sole discretion, Buyer may also replace any non-conforming goods with goods purchased from another supplier and charge Seller any excess costs or expenses incurred in such transaction. Payment for non-conforming goods shall not constitute an acceptance and will not limit or impair Buyer's right to assert any legal or equitable remedy, or relieve Seller's responsibility for latent defects.

8. ISO Registration; Corrective Action; Continuous Improvement

a. If Seller is registered under any ISO or AS quality standard (eg. ISO9001/AS9100), it will take all reasonable steps to ensure continued registration. Seller will notify Buyer in writing of any change to its ISO registration status. Seller will respond in a timely manner to any request by Buyer or Buyer's customer for corrective action with respect to goods and/or services provided by Seller.

b. If Seller is not registered under an ISO or AS quality standard as of the Effective Date of this Agreement, it will provide Buyer with its documented quality manual in place. Seller agrees to permit Buyer and its representatives to have access to Seller's plant at all reasonable times for the purpose of conducting Quality Audits and inspecting the goods and work in process for production of such items.

c. Seller understands that Buyer's goal is to receive defect-free goods. Accordingly, Seller agrees to utilize its best efforts to achieve a "zero-defect" objective and to deliver defect-free goods to Buyer at the lowest possible cost as defined and measured by Buyer's system for measuring supplier performance.

d. Seller agrees to report on the progress of its continuous process of improvement activities and to make its personnel available to confer with Buyer's personnel and attend meetings at Buyer's facility to discuss quality and process improvement activities, issues and opportunities.

9. Subcontracting

Seller will not assign its obligations under this Agreement or any Purchase Order to any third party without the written approval of Buyer obtained in advance.

10. Force Majeure

An event or occurrence that is beyond the reasonable control of a party and without its fault or negligence will excuse the delay or failure to perform the obligations of that party; provided that the affected party gives written notice of the delay (including the anticipated duration of the delay) to the other party within ten days. Examples of events or occurrences include, without limitation, acts of God, acts of any governmental authority (whether valid or invalid), fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, terrorism, labor problems (including lockouts, strikes and slowdowns), inability to obtain power, or court injunction or order. During the period of a delay or failure to perform by Seller, Buyer, at its option, may purchase goods from other sources and reduce its obligations under a Purchase Order by the quantities so purchased without liability to Seller, or have Seller provide the goods from sources in quantities and at times requested by Buyer and at the price set forth in the Purchase Order. If a delay lasts more than thirty days, Buyer may immediately cancel one or more Purchase Orders without liability.

11. Insurance

a. Seller shall, at its own cost and expense, obtain and maintain in full force and effect, during the term of this Agreement, with sound and reputable insurers, the following insurance coverage: (i) Workers' Compensation insurance as required by the law of the state of hire or province if in Canada; (ii) employer's liability insurance with a minimum limited of $1,000,000 of liability, and not less than $1,000,000 aggregate limit of liability per policy year for disease, including death at any time resulting there from, not caused by accident; (iii) Comprehensive General Liability insurance against all hazards with a minimum limit of liability for personal injury, including death, on an occurrence basis of $5,000,000 in the aggregate, and with a minimum limit liability for property damage on an occurrence basis of $5,000,000 in the aggregate; (iv) Automobile Liability insurance against liability arising from the maintenance or use of all owned, non-owned and hired automobiles and trucks with a minimum limit of liability for property damage of $1,000,000 per accident; and (v) errors and omissions insurance with a policy limit of not less than $1,000,000.

b. Seller's insurance shall be deemed primary. Seller shall provide Buyer with certificates of insurance evidencing the coverage required hereunder within fifteen (15) days after execution of this Agreement. Each policy required hereunder shall provide that Buyer shall receive thirty (30) days' advance written notice in the event of a cancellation or material change in such policy. Each policy of insurance which Seller is required to possess under this Agreement shall name Buyer, its Directors, Officers, and Employees as additional insured in the insurance policy limits herein required. In the event that any service under this Agreement is rendered by persons other than Seller's employees, Seller shall arrange to furnish Buyer with evidence of such insurance for such persons subject to the same terms and conditions as set forth above and applicable to Seller prior to commencement of service by such person(s).

c. Seller shall maintain the foregoing insurance policies in full force and effect during the term of this Agreement and for two (2) years after the expiration of this Agreement. If Seller should change insurance carriers during such period, Seller shall provide Buyer with written evidence that such new policy provides "prior acts" coverage.

12. Warranties

a. Seller warrants that all goods or services covered by a Purchase Order shall be of first class quality and shall conform to any specifications, drawings, samples or descriptions furnished to Buyer, by Buyer, or by Buyer's customer, and will be merchantable, of good material and workmanship and free from defects. In addition, Seller acknowledges that Seller knows of the intended use of the goods by Buyer and Buyer's customer and expressly warrants that all goods covered by a Purchase Order have been, or will be, selected, designed, manufactured, or assembled by Seller, based on the intended use of the goods by Buyer and Buyer's customer, and will be fit and sufficient for the particular purposes intended by Buyer and Buyer's customer. Seller may not substitute materials or goods in lieu of those specified without Buyer's written consent obtained in advance.

b. If the goods or the intended use of the goods involves contact with food or the processing, packaging or shipment of food products or byproducts, Seller warrants that the article comprising each shipment or other delivery made after the Effective Date by Seller to, or on the order of, Buyer is hereby guaranteed, as of the date of such shipment or delivery, to be, on such date, not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, and not an article which may not, under the provisions of section 404, 505, or 512 of the act, be introduced into interstate commerce. Seller will provide Buyer with a signed certificate containing this warranty if, as and when requested by Buyer.

c. If the goods are or may be sent by Seller, Buyer, Buyer's customer, or customers of Buyer's customer to the European Union, Seller will provide Buyer with appropriate certificates as required warranting that the goods comply with applicable EU laws and regulations, including those relating to hazardous materials, the use and disposal of packaging materials as well as food safety programs. If in Canada, appropriate certificates warranting that the goods comply with applicable Canadian laws and regulations including those regulated by Health Canada, -Material Handling acts, - stewardship programs, Canadian Food Inspection Agency ("CFIA"), the Competition Act and Canadian label and language laws.

d. If the goods require or may require Certificates of Origin under the North American Free Trade Agreement or other applicable agreement or treaty, Seller will provide Buyer with an appropriate Certificates of Origin, HS codes and warrants that the information so provided is true, complete and accurate.

e. Seller warrants that it is certified by C-TPAT (Custom Trade Partnership against Terrorism) to be an exporter of the goods that are the subject of this Agreement and certified by CBSA (Canada Border Service Agency), if applicable, to export the goods. Additional customs compliance documents may be required if Seller produces the goods for use outside of the U.S.

f. All warranties extend to Buyer, Buyer's customers, and the customers of Buyer's customers. Written documentation of product warranties and coverage may be required and must be provided upon request in English and French.

13. Indemnity

a. Seller agrees to indemnify, defend and hold Buyer and each of its directors, officers, employees, agents, and customers and the respective successors and assigns of Buyer and such other persons harmless against and in respect of all claims, demands, losses, costs, expenses, obligations, liabilities judgments, damages, recoveries, and deficiencies, including interest, penalties, expert witness fees, and reasonable attorney's fees (applicable to third party claims), that Buyer or such other persons shall incur or suffer that arise from, result from, or relate to, in whole or part:

i. Failure by Seller to comply with any federal, state, provincial, territory or local law, executive order, rule, regulation or ordinance that may be applicable to Seller's performance of its obligations under a Purchase Order or certification provided for hereunder.

ii. Violation or infringement of rights in any patent, copyright, proprietary information, trade secret or other intellectual property right caused or alleged to be caused by the use or sale of goods, materials, equipment, methods, processes, designs or information furnished by Seller or its suppliers. Should any goods or services provide by Seller become, or apparently become, the subject of a claim of infringement of a patent, copyright or other intellectual property right, Seller shall, at Buyer's option, either procure for Buyer and Buyer's customer the right to continue to use the goods or services, replace the goods or services with equivalent, non-infringing goods or services, or modify the goods or services so that the use of the goods or services becomes non-infringing, provided that any modification or replacement is of equal quality and provides equal performance to the infringing goods or services. This paragraph shall not apply to any goods manufactured to designs furnished and required by Buyer or Buyer's customer, and it does not apply to claims that the sale or use of a process or use of a combination of the goods supplied by Seller with other goods infringes a patent, if the process or other goods were not supplied by Seller and Seller's supply of the goods does not constitute contributory patent infringement.

iii. Injury or death of persons (including employees of Buyer, Buyer's customers, Seller, and Seller's suppliers) or from damage to or loss of property (including the property of Buyer or Buyer's customers) arising directly or indirectly out of a Purchase Order or out of any acts or omissions of Seller or its suppliers.

iv. Contamination, pollution, or public or private nuisance arising directly or indirectly out of a Purchase Order or out of any acts or omissions by Seller or its suppliers.

v. A defect in the design or manufacture of goods, a failure by Seller to make a delivery on the date and time and at the place specified by Buyer, or any other unexcused or un-waived failure by Seller to perform any of its obligations under a Purchase Order.

b. The indemnity obligations of Seller may include, by way of example and not limitation, labor and related overhead for sorting, repairing or replacing defective goods; losses and costs suffered, incurred or claimed by Buyer's customer; any shipping and packaging costs; and any costs of recall or notification incurred by Buyer or Buyer's customer. Buyer agrees to give Seller reasonable notice of any claim by Buyer and of any third-party claim. Seller may compromise or settle a third-party claim, provided, however, Seller shall not, without the written consent of Buyer obtained in advance, consent to the entry of any judgment against Buyer or enter into any settlement or compromise that does not include an unconditional term that requires the claimant or plaintiff to give Buyer a release, in form and substance satisfactory to Buyer, from all liability in respect of the claim. If Seller fails or refuses to indemnify Buyer and such other persons, then Buyer may settle the claims and then seek reimbursement from Seller. Buyer and Seller agree that the arbitration provisions of this Agreement govern any dispute between Buyer and Seller regarding Seller's indemnity obligations.

c. The indemnity obligations of Seller apply regardless of whether the party entitled to indemnity was concurrently negligent, whether actively or passively, excepting only where the injury, loss or damage was caused solely by the negligence or willful misconduct of, or by defects in design furnished by, the party seeking indemnity. Seller's defense and indemnity obligations include the duty to reimburse any attorney's fees and expenses incurred by Buyer or other party seeking indemnity in defense of a third-party claim for which this Agreement requires Seller to provide indemnity.

d. In the event any indemnity provision in this Agreement is contrary to law, construction of the indemnity obligation will be to the fullest extent allowed by law.

14. Compliance with Laws

Seller agrees to comply with all federal, provincial, territory. state and local laws of the United States, Europe, Canada and Mexico, executive orders, rules, regulations and ordinances that may be applicable to Seller's performance of its obligations under a Purchase Order. In particular, Seller warrants that in providing goods or rendering services under a Purchase Order, it will comply with the following, as amended from time to time: the Occupational Safety and Health Act; the Fair Labor Standards Act of 1938; the Walsh- Healy Public Contracts Act; the Robinson-Patman Act; the National Traffic and Motor Vehicle Safety Act; the Civil Rights Act of 1964 (Title VII); the Food, Drug & Cosmetic Act; Executive Orders 11246 and 11375; and those laws relating to equal employment opportunity, and the utilization of small, disadvantaged, and women-owned business concerns, all as amended. If in Canada, Seller agrees to comply with applicable federal, provincial, territorial and municipal legislation including but not limited to: Canadian Food Inspection Act, provincial and federal taxation acts, Health Canada compliance, product applicable legislation, health and safety compliance, WHMIS, workers compensation, employment and labor laws and stewardship programs. Seller agrees to provide Buyer with a written certification of its compliance with any or all of the foregoing on receipt of a request by Buyer. The parties have expressly requested and required that this Agreement and all other related documents be drawn up in the English language.

15. Insolvency

Buyer may immediately cancel any Purchase Order without liability to Seller in the event of the happening of any of the following or any other comparable event: the insolvency of Seller; the filing of a voluntary petition in bankruptcy by Seller; the filing of an involuntary petition in bankruptcy against Seller; the appointment of a receiver or a trustee for some or all of the assets of Seller; or the execution of an assignment for the benefit of creditors by Seller.

16. Cancellation for Breach

Buyer reserves the right to cancel all or any part of a Purchase Order, without liability to Seller, if Seller repudiates or breaches any of the terms of the Purchase Order, including Seller's warranties, or fails to perform services or deliver goods as specified by Buyer. In the event of a cancellation by Buyer, Buyer shall have all rights and remedies available to a Buyer under the Uniform Commercial Code or otherwise available at law or in equity. Any cancellation under a Purchase Order shall not excuse the Seller from performing un-cancelled work.

17. Termination

In addition to any other rights of Buyer to cancel or terminate a Purchase Order, Buyer may, at its option, immediately terminate all or any part of a Purchase Order, at any time and for any reason, by giving written notice to Seller. On termination, Buyer shall pay to Seller the following amounts without duplication: the Purchase Order price for all goods or services completed in accordance with the Purchase Order and not previously paid for, and the actual costs of work-in-process and raw materials incurred by Seller in furnishing the goods or services under the Purchase Order to the extent they are reasonable in amount and are properly allocable or apportionable under generally accepted accounting principles to the terminated portion of the Purchase Order; less, however, the reasonable value or cost, whichever is higher, of any goods or materials used or sold by Seller with Buyer's written consent, and the costs of any damaged or destroyed goods or material. After termination, Buyer will make no payment for finished goods, work-in-process, or raw materials fabricated or procured by Seller in amounts in excess of those authorized in delivery releases or for any undelivered goods that are in Seller's standard stock or that are readily marketable. Payments made under this Paragraph shall not exceed the aggregate purchase price payable by Buyer for finished goods that would be produced by Seller under delivery or release schedules outstanding at the effective date of termination. Except as provided in this Paragraph, Buyer is not for and has no requirement to make payments to Seller, directly or on account of claims by Seller's subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, and general and administrative burden charges from termination of the Purchase Order. Within sixty days from the effective date of termination, Seller will submit a comprehensive termination claim to Buyer with supporting data, and will promptly furnish any supplemental and supporting information as Buyer shall request. Buyer, or its agents, has the right to audit and examine all books, records, facilities, work, material, inventories and other items relating to any termination claim of Seller.

18. Ownership Rights

a. As between Buyer, or Buyer's customer, on the one hand and Seller on the other, Buyer, or Buyer's customer, retains all right, title and interest in and to any product specifications provided by Buyer or Buyer's customer, respectively, and any inventions (whether patentable or not) made by Buyer or Buyer's customer.

b. Seller grants and assigns to Buyer, without reservation, all worldwide ownership rights, title and interest in and to goods, including any tooling, printing plates, dies, inventions, and all work in process, (collectively, "Products") developed by Seller on behalf of Buyer or Buyer's customer. These rights include, but are not limited to, patent rights, copyrights, trade secret rights, trademark rights, mask work rights and other proprietary rights throughout the world. Except as expressly permitted in this Agreement, Seller will have no right or license to knowingly manufacture, sell or otherwise distribute the Products for its own account or for any third party, or assist any third party in so doing. For purposes of clarifying the scope of Buyer's rights, all Products are work made by Seller for hire for Buyer. During and subsequent to the term of this Agreement, at Buyer's request and expense, Seller will document the assignment to Buyer of all rights, title and interest in and to the Products and assist Buyer and its nominees in every proper way to secure, maintain and defend for the benefit of Buyer or Buyer's nominee all copyrights, patent rights, mask work rights and other proprietary rights in the Products.

c. Seller retains all right, title and interest in all inventions owned by Seller before beginning work on any Purchase Order or any goods on behalf of Buyer or Buyer's customer. Seller grants a worldwide, nonexclusive, royalty-free and irrevocable right and license to these inventions (but solely to the extent necessary) to permit Buyer to incorporate the goods supplied by Seller into goods that Buyer sells to its customers.

d. All trade names, trademarks, copyrights, brand names, service marks, designs and patents and all other intellectual property owned by or licensed to Buyer ("Buyer Intellectual Property") used by Seller on behalf of Buyer under this Agreement are owned by or licensed to Buyer and Seller has and shall acquire no right or interest therein. The foregoing shall not be construed to grant any rights or license in any Buyer Intellectual Property except as otherwise expressly provided herein. On the expiration or earlier termination of this Agreement, Seller shall thereafter refrain from utilizing any Buyer Intellectual Property, for any purpose whatsoever. This Section shall survive any expiration or earlier termination of this Agreement.

19. Confidentiality

a. "Confidential Information" means information, data, or facts that belong to Buyer or any customer of Buyer concerning the business operations, finances, affairs or prospects of Buyer or any customer of Buyer, as applicable, including, without limitation, formulas, material formulations, trade secrets, know-how, data, product concepts, specifications, processes, and engineering and design specifications that pertain to Products; information regarding production and operation plans, budgets, sources of supply, methods of manufacture and/or distribution of Buyer or any customer of Buyer; and information regarding Buyer's customers, including, without limitation, business names, business addresses, and contact information including the identity of any contact person employed by any customer. "Confidential Materials" means all documents, records and other tangible items in which Confidential Information is stored, maintained or recorded or from which Confidential Information may be readily ascertained or derived (whether in the form of documents, correspondence, memoranda, blueprints, drawings, records, notes, plans, reports, materials, programs, drawings, sketches, designs, graphics, photographs, prints, mats, films, negatives, recordings, magnetic media, software, disks, diskettes, charts, manuals, materials and all other media), including copies or other reproductions of any of these.

b. Confidential Information does not include anything described above that (i) was or becomes generally available to the public other than as a result of a disclosure by Seller or its directors, officers, employees, agents, or advisors, or (ii) was or becomes available to Seller on a non-confidential basis from a source that has the right to disclose the information, or (iii) was in the possession of Seller before being furnished to Seller by or on behalf of Buyer, or (iv) was independently acquired by Seller as a result of work carried out by an employee or agent of Seller to whom no disclosure of such information has been made directly or indirectly.

c. Seller agrees that it will only use any Confidential Information received by it from Buyer or any customer of Buyer to provide goods or services to Buyer. Unless judicial or administrative process or other requirements of law require disclosure of Confidential Information, Seller will only disclose Confidential Information to the directors, officers, and employees of Seller for the purpose of providing goods or services to Buyer. Seller will inform these individuals in writing of the confidential nature of the Confidential Information, including the prohibition against disclosure, and will provide Buyer, on request, evidence of compliance with this requirement. Seller will not provide acess to Confidential Materials to any third party without the consent of Buyer contained in a writing signed by an authorized officer of Buyer.

d. All Confidential Materials of Buyer or any customer of Buyer are and shall at all times remain the exclusive property of Buyer or its customer, as applicable,, even though Buyer may deliver Confidential Materials to Seller, or provide access to Confidential Materials to Buyer. Seller will, on reasonable written demand, surrender to Buyer any Confidential Materials that it may have received, created or produced and all copies however made or obtained; except, however, Seller shall render irretrievable information contained on computer disk or other electronic, magnetic or similar media so that transfer of possession is impractical. Seller shall provide prompt written certification of full performance by it of the obligations contained in this subparagraph. The return or destruction of Confidential Materials in accordance with this subparagraph does not relieve Seller of any obligations under this subparagraph or any other provision of this Agreement, whether with respect to the Confidential Information contained in the returned or destroyed Confidential Materials or otherwise.

e. In the event judicial or administrative process, or other requirements of law, require Seller or its directors, officers, or employees to disclose any Confidential Information, Seller shall provide Buyer with prompt written notice of the required disclosure so that Buyer or Buyer's customer may seek a protective order or other appropriate remedy and/or waive compliance with the confidentiality provisions of this Agreement with respect to all or part of the Confidential Information. If, in the absence of a protective order or other remedy or the receipt of a waiver from Buyer, Seller or its representatives, in the opinion of counsel for Seller, must disclose Confidential Information to any person or entity or otherwise stand liable for contempt or suffer other censure or penalty should Seller or its representatives not disclose the Confidential Information, Seller or its representatives may, without liability under the confidentiality provisions of this Agreement, disclose to such person or entity that portion of the Confidential Information that counsel advises Seller and its representatives the law requires disclosure, provided that Seller or its representatives exercise their best efforts to preserve the confidentiality of the Confidential Information including, without limitation, by cooperating with Buyer to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded the Confidential Information by such person or entity.

20. Taxes and Price

Seller's invoices shall not include any tax with respect to which Buyer has furnished Seller with an applicable exemption certificate or similar documentation. Seller represents that the prices it charges Buyer for goods will not be higher than the lowest price it charges to any other purchaser for goods of like grade and quantity. If in Canada, taxes shall include or be invoiced for GST (Government State Tax), PST (Provincial State Tax), QST (Quebec Sales Tax) and HST (Harmonized Sales Tax), if applicable, or Seller may provide Buyer a certificate of exemption.

21. Compliance

a. Seller must certify that its products comply to REACH, RoHS, CONEG, HACCP, California Toxics in Packaging, the California Transparency in Supply Chain Act, and the European Packaging Directive. Additionally, with each initial shipment of a product, Seller must supply a MSDS, if available.

b. Seller certifies that the products comprising each shipment or other delivery hereafter made by Seller to, or on the order of, Buyer, is hereby guaranteed, as of the date of such shipment or delivery, to be, on such date, not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, and not an article which may not, under the provisions of section 404, 505, or 512 of the act, be introduced into interstate commerce.

c. Seller certifies that the materials incorporated into products delivered to Buyer, complies with the laws regarding slavery and human trafficking of the country or countries in which it does business.

22. Risk of Loss

Seller retains all responsibility for risk of loss or other damage to goods until actual receipt, inspection, and acceptance by Buyer. No provision in a Purchase Order including, without limitation, a provision calling for Buyer to will-call goods or for Seller to ship goods via carrier, shall change the risk of loss.

23. Non-Assignment

Seller may not assign this Agreement or any Purchase Order or delegate its obligations under any of them without the written consent of Buyer obtained in advance and signed by an authorized officer of Buyer.

24. Remedies

a. The rights or remedies reserved to Buyer in this Agreement and in any Purchase Order are cumulative, and in addition to all other remedies provided at law or in equity.

b. Seller acknowledges that Confidential Information is highly sensitive and that disclosure of Confidential Information in breach of the confidentiality provisions of this Agreement will cause irreparable harm to Buyer and Buyer's customers. Accordingly, in the event of a breach of any part of the confidentiality provisions of this Agreement, Buyer may seek injunctive and other equitable relief in a court of competent jurisdiction. If Seller disputes whether information is Confidential Information, Seller agrees to an injunction prohibiting disclosure pending resolution of the dispute as provided in this Agreement. Seller acknowledges that any interference with the ongoing business relationship of Buyer with its customers in a manner prohibited by this Agreement will cause irreparable harm to Buyer. Accordingly, in the event Seller engages in any business relationship, whether directly or through another company, with any customer disclosed to it by Buyer that involves any Confidential Information, Seller agrees to an injunction prohibiting Seller from continuing that relationship pending resolution of the dispute as provided in this Agreement.

c. Buyer and Seller agree to resolve other disputes that the parties are unable to resolve informally, including, but not limited to, disputes as to whether or not information is Confidential Information and disputes concerning the construction and interpretation of the provisions of this Agreement, in the following manner:

i. If the amount in controversy is within the jurisdiction of the small claims courts of California, such dispute will be resolved under the small claims court laws of California then in effect. If in Canada, the parties shall attorn to the province of Ontario, Canada for Canadian jurisdiction over resolution and enforcement.

ii. A four-member panel composed of two principals from each of the parties will initially address all other disputes. At least one principal from each party shall be of senior management level and shall have the authority to enter into an agreement resolving the dispute or claim. Either party may initiate this dispute resolution process by issuance of written notice to the other party outlining in reasonable detail the nature of the dispute or claim. The principals shall promptly meet for a period not longer than one day in an effort to negotiate a resolution of the dispute or claim, unless there is an agreement regarding an extension of the negotiating period.

iii. In the event that the parties are unable to resolve the dispute or claim, the parties shall immediately select a third party mediator from a list provided by the American Arbitration Association office in the city closest to the city in which this Agreement is to be performed. Within ten (10) days from the selection of the mediator, the parties will again meet with each other and the mediator in an effort to negotiate a resolution of the dispute or claim. The role of the mediator shall be to help facilitate the negotiation of a resolution. The parties shall meet with each other and the mediator for not longer than one day in this effort to resolve the matter unless there is an agreement regarding an extension of the negotiating period.

iv. If the mediation process does not result in a resolution satisfactory to the senior level members of the negotiation panel, the parties will submit the dispute to arbitration before a panel of three (3) arbitrators. Each party will select one neutral arbitrator and the two arbitrators shall select the third panel member. JAMS will administer the arbitration in accordance with its Comprehensive Rules. The decision of the arbitration panel in the arbitration proceeding will be final and binding on the parties. If the dispute involves this Agreement and no Purchase Order, or services, or a Purchase Order that requires delivery of goods in the State of California, or a Purchase Order for goods that Seller manufactures in the State of California regardless of delivery destination, the venue for arbitration will be Orange County, California. If the dispute involves a Purchase Order that requires delivery of goods outside of California and the Seller does not manufacture the goods in California, the venue for arbitration will be the principal metropolitan city closest to the place of delivery of the goods. No award of any arbitration shall include punitive or exemplary damages or attorneys fees or costs. Each party will pay one-half of the costs of JAMS and of the arbitrators. The arbitrators will resolve any controversy over whether a dispute is an arbitrable dispute or as to the interpretation or enforceability of this Agreement with respect to arbitration. Except as provided for in this paragraph, each party shall pay for its own attorney's fees and costs including, without limitation, costs of any experts, in any action brought under this Agreement or otherwise. The parties agree that neither party may call the mediator as a witness in any arbitration proceeding and that no evidence concerning the negotiation and the attempted mediation between the parties is admissible as evidence in an arbitration proceeding. The mediator may not serve as an arbitrator.

v. If in Canada, the parties shall refer to the Arbitration Act or the Commercial Mediation Act in Ontario, Canada.

25. Set-Off

In addition to any right or set-off by law or in equity, all amounts due Seller shall be considered net of indebtedness of Seller to Buyer or its affiliates, and Buyer may deduct any amounts from Seller to Buyer or its affiliates from any sums due from Buyer or its affiliates to Seller.

26. Records

Seller will maintain books and records sufficient to document its compliance with all requirements of this Agreement, including documents related to a Purchase Order, documents related to its ISO registration, and documents related to corrective action, for a period of not less than five years following the date of the applicable events or documents or the termination of this Agreement, whichever is earlier. If relating to Canadian matters, Seller shall maintain records for seven years.

27. Use of Electronic Media

Seller will cooperate with Buyer and apply resources in conjunction with those of Buyer to streamline the ordering of goods and payment for goods through electronic means, including EDI, EFT and ERS (evaluated receipt settlement). Seller will enter into appropriate agreements from time to time to document the standards and requirements for electronic interfacing agreed to by Seller and Buyer.

28. Publicity

Seller will not use the name or trademarks of Buyer or of Buyer's customers in any media, including the Internet, without the written consent of Buyer obtained in advance and signed by an authorized officer of Buyer.

29. No Implied Waiver

The failure of either party at any time to require performance by the other party of any provision of a Purchase Order shall in no way affect the right to require performance later nor shall the waiver of either party of a breach of any provision of a Purchase Order constitute a waiver of any succeeding breach of the same or any other provision.

30. Relationship of Parties

Seller and Buyer are independent contracting parties and nothing in any Purchase Order of Buyer shall make either party the agent or legal representative of the other for any purpose whatsoever nor does it grant either party any authority to assume or create any obligation on behalf of or in the name of the other.

31. Governing Law

The laws of the State of California govern this Agreement and any Purchase Order issued by Buyer to Seller, regardless of the place for performance.

32. Severability

If any term of this Agreement or of a Purchase Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, the parties agree to reform or delete the term, but only to the extent necessary to comply with the applicable statute, regulation, ordinance, Purchase Order or rule, and the remaining provisions of this Agreement or the Purchase Order, as applicable, shall remain in full force and effect.

33. Entire Agreement

A Purchase Order, including any attachments, exhibits, or supplements specifically referenced in the Purchase Order, and this Agreement between Seller and Buyer, including these terms and conditions, constitute the entire agreement between Seller and Buyer with respect to the matters contained in the Purchase Order and this Agreement.

34. Notices

a. All notices regarding this Agreement or this Agreement and a Purchase Order (but not a Purchase Order alone) must be in writing and shall be duly given or made or communicated by personal delivery, mail, or overnight courier. If personally delivered, notice is effective on delivery. If mailed, notice is effective two business days after having been sent by registered or certified United States Mail, first class postage and fees prepaid, return receipt requested, addressed to the intended recipient at the address on the signature page of this Agreement, or to such other address or addresses as a party may designate from time to time by notice given as provided in this paragraph. If sent by an overnight courier (e.g., United Parcel Service, Federal Express), notice is effective the day following being so sent provided it was sent in circumstances in which the courier guarantees next day delivery.

b. Notices regarding a Purchase Order (but not involving this Agreement) must be in writing and shall be duly given or made or communicated by personal delivery, mail, email, electronic communications adopted by the agreement of Buyer and Seller, or overnight courier. Notices given by personal delivery, mail, or overnight courier are effective as stated above. Notices given by email are effective when delivered. Notices given by electronic communications adopted by the agreement of Buyer and Seller are effective when delivered or as agreed between Buyer and Seller.

35. Non-solicitation

Seller will not during the term of this Agreement and for a period of two (2) years from the termination of this Agreement, directly or indirectly, solicit for employment or hire within six months following his or her termination of employment with Buyer any employee of Buyer (including employees of Buyer's affiliated divisions and subsidiaries); provided, however, that this restriction shall not prevent Seller from employing an employee who contacts Seller on his or her own initiative without any direct or indirect solicitation by, or encouragement from, Seller and provided further that nothing in this paragraph restricts Seller from making general publications of employment opportunities available.

36. Non-circumvention

Seller will not during the term of this Agreement and for a period of two (2) years from the termination of this Agreement, directly or indirectly, engage in any business transaction with or on behalf of any customer of Buyer for which Seller provided, directly or indirectly, goods or services on behalf of Buyer.

37. Seller acknowledges that the restrictions contained in each of paragraphs 35 and 36, in view of the nature of the business of Buyer, are reasonable and necessary in order to protect the legitimate interests of Buyer, and that any violation of those provisions would result in irreparable injuries to Buyer. Therefore, Seller agrees that if it violates any of the restrictions contained in paragraphs 35 and 36, Buyer shall be entitled to obtain from any court of competent jurisdiction, preliminary and injunctive relief, in addition to any other rights or remedies to which it may be entitled.