LOOS PACK, LLC - GENERAL TERMS AND CONDITION OF PURCHASE

1. ACCEPTANCE OF OFFER. This purchase order constitutes an offer to purchase.  Any conduct by Seller which recognizes the existence of a contract pertaining to the subject matter hereof shall constitute acceptance by Seller of this purchase order and all of its terms and conditions.  Unless specifically agreed to in writing by Loos Pack, LLC (“Buyer”), any terms in Seller’s quotation, acceptance, invoice, or other form supplied by Seller which are in addition to or different from the terms herein are hereby expressly objected to by Buyer.  Any such terms provided by Seller shall be void and the terms herein shall constitute the complete and exclusive statement of the terms and conditions of the contract between the parties and may hereafter be modified only by written instrument executed by the authorized representatives of both parties. 
2. CHANGES. Buyer shall have the right to make changes in drawings, specifications or instructions for work, quantities, methods of shipments and packaging, and schedules and places of delivery as to any material and the work covered by this purchase order and Seller agrees to immediately comply with all such change notices.  Such change notices will be in writing and signed by a duly authorized representative of Buyer. 
3. CANCELLATION. Buyer reserves the right to cancel or suspend all or, from time to time, any undelivered or unexecuted portion of this purchase order (a) for cause if Seller fails to make any delivery or to perform any work as scheduled or if Seller breaches any of the terms hereof or (b) without cause upon written confirmation thereof to Seller.  Buyer’s entire liability and Seller’s exclusive remedy for any change and/or cancellation or suspension of all or any part of this purchase order shall be limited to Buyer being obligated to reimburse Seller for Seller’s expenses incurred prior to notice of cancellation and resulting from any such cancellation or suspension made without cause; provided, however, that such amount shall in no event exceed the applicable pro rata portion of the contract price.  Any claims under this Section 3 must be asserted by Seller in writing within thirty (30) days after Seller’s receipt of written confirmation of the change, cancellation, or suspension as ordered and the amount of such claim must be stated by Seller in detail in writing.
4. PACKAGING AND LABELING. All goods must be packaged and identified, without additional charge to Buyer, in the manner specified by Buyer and shipped in the manner and by the route and carrier designated by Buyer. 
5. DELIVERY. The obligation of Seller to meet the delivery dates, specifications, and quantities set forth herein is of the essence of this purchase order.  Deliveries are to be made both in quantities and at times and destinations specified herein and, if not specified herein, in such quantities and at such times and destinations as are specified pursuant to Buyer’s written instruction.  Buyer may, from time to time, change or temporarily suspend delivery schedules. 
6. FORCE MAJEURE. In the event of the existence, happening, or continuance of any contingency, whether or not foreseeable, preventing, curtailing, or substantially interrupting or interfering with the business of Buyer, such as fire, accident, war, insurrection, act, order, authority, regulation, directive, recommendation or request of any federal, state, local or foreign government body , state of emergency, judicial action, industrial disturbance, delay of customers  shortage of labor or impairment of obtaining workers, work stoppage, shortage of fuel, power, components, facilities, or raw materials, embargo, failure or delay of transportation, act of God or nature, disease, illness, virus, bacterium, epidemic or pandemic, or any other cause, whether similar or dissimilar to any of the foregoing, then, independent of and in addition to any right of Buyer under law or equity excusing Buyer’s performance in any manner, Buyer shall not be under any obligation during the period of such prevention, curtailment, interruption, or interference  to accept delivery of or pay for any goods or services ordered.
7. INVOICES.  Invoices must be rendered immediately upon shipment of goods.  Invoices are paid from date of receipt of goods and not on the basis of Seller’s invoice date. 
8. INSPECTION AND TESTING. Buyer or Buyer’s representatives shall have the right of access at any time to inspect and test all goods during the period of manufacture and at all other times at Seller’s place of business or any other place where the goods may be located.  Acceptance of the goods by Buyer will be subject to inspection and testing by Buyer after physical receipt, installation, or assembly of the goods. 
9. WARRANTIES.  Whether or not Seller is a merchant of the goods and/or services provided by it, Seller warrants that all goods and/or services provided by it (a) shall be of good quality and workmanship and free from all defects, latent or patent, in design, materials, and workmanship, (b) shall conform to all specifications, drawings, samples, and other descriptions furnished, specified, or adopted by Buyer, (c) shall be merchantable and suitable, sufficient, and fit for their intended and particular purpose, (d) shall be fit for the particular use that such goods and/or services will be used by Buyer, and (e) shall be free of all liens and encumbrances and any claim of title of any third party.  None of the remedies available to Buyer for the breach of any of the foregoing warranties may be limited except to the extent and in the manner agreed upon by Buyer in a separate agreement specifically designating such limitation and signed by an authorized representative of Buyer.  Buyer’s inspection and/or acceptance of and/or payment for goods and/or services shall not constitute a waiver by it of any warranties and such warranties shall survive inspection, test, acceptance, and use, either by Buyer or Buyer’s customers.  Buyer’s approval of any sample or acceptance of any goods shall not relieve Seller from responsibility to deliver goods and to perform services conforming to specifications, drawings, and descriptions.  This warranty shall run to Buyer, its successors and assigns, and its customers and other users of its products.  Seller agrees to replace or correct defects of any goods or services not conforming to the foregoing warranty promptly, without expense to Buyer or Buyer’s customers, when notified of such nonconformity by Buyer.  A new warranty period, equal to the term of the original warranty period, shall be established for any such replacement or corrected goods and/or reperformed services.  In the event of failure by Seller to correct defects in or replace nonconforming goods or services promptly, Buyer, after reasonable notice to Seller, may make such corrections or replace such goods and services and charge Seller for the cost incurred by the Buyer thereby.  Seller shall be liable for all damages arising directly or indirectly from any technical advice furnished or suggestions or recommendations made by Seller concerning the installation, maintenance, repair, replacement, adjustment, use, suitability or application of any goods furnished by Seller, regardless of whether such technical advice is given or recommendations are made prior to or after substantial completion, final inspection, or initial use of such goods.  Seller shall be liable to Buyer for all incidental and consequential damages incurred by Buyer or Buyer’s customers by reason of the breach of any warranty contained in this Section 9.  All of the foregoing warranties expressly and explicitly extend to the future performance of the goods and services provided by Seller.
10. REMEDIES.  Each of the rights and remedies reserved by Buyer in this purchase order shall be cumulative and additional to any other or further remedies provided in law or equity or in this purchase order.  All goods and services (a) not fully up to standard, (b) not in compliance with the specifications hereof, (c) shipped contrary to instructions or in excess of the quantities herein provided, (d) substituted for goods herein described, (e) not shipped in containers conforming to Buyer’s specifications (or, in the absence of such specifications, in recognized standard containers conforming to carrier’s specifications), (f) allegedly violating any statute, ordinance, or administrative order, rule, or regulation, (g) not packaged, bagged, labeled, invoiced, or stamped in compliance with any federal, state, or local law, rule, or regulation, or (h) allegedly infringing any patent, trademark, or copyright, may be rejected by Buyer and returned to Seller or held at Seller’s expense and risk.  Buyer may charge to Seller all expenses of unpacking, examining, repacking, storing, and reshipping of any goods rejected as aforesaid.  Buyer’s right to reject and return or hold goods at Seller’s expense and risk shall, without limiting such right, extend to goods sold to Buyer hereunder which is returned to Buyer by Buyer’s customer for any reason entitling Buyer to reject.  Buyer may, at its option, require Seller to grant a full refund or credit to Buyer, in lieu of replacement, with respect to any item Buyer is entitled to reject hereunder.
11. INTELLECTUAL PROPERTY. Seller warrants that the goods furnished under this purchase order and the sale and ordinary use thereof will not infringe any patent, trademark, copyright, or other rights, whether in the United States or elsewhere, or constitute a misappropriation of trade secrets or breach of confidential relationship with respect to the goods or services covered by this purchase order.  Seller agrees, at its own expense, to defend any suit or action against Buyer or against those selling or using the goods or services covered by this purchase order for such alleged infringement, misappropriation, or breach arising from the sale and ordinary use of such goods or services and to indemnify and hold harmless Buyer from any damages, liabilities, claims, losses, and expenses (including reasonable attorneys’ fees) paid or incurred by Buyer in connection with any such suit or action, whether against Buyer or against those selling or using the goods or services covered by this purchase order.  Buyer may be represented by and actively participate through its own counsel in any such suit or proceedings if Buyer so desires and all expenses (including reasonable attorneys’ fees) paid or incurred by Buyer in connection with Buyer’s participation in any such suit or proceedings shall be paid by Seller. 
12. INDEMNIFICATION.  Seller shall defend and indemnify Buyer against all damages, liability, claims, losses, and expenses (including reasonable attorneys’ fees), including without limitation bodily injury, property damage, or personal injury, arising out of or resulting in any way from the goods or services purchased hereunder or from any act or omission of Seller, its agents, employees, or subcontractors, whether based upon claims of negligence, breach of warranty, or strict liability in tort.
13. INSURANCE.  Seller shall maintain: (i) commercial general liability coverage on an occurrence basis with a combined bodily injury and property damage limit of at least $1,000,000 per occurrence and $2,000,000 aggregate.  The policy shall include premises/operations, products & completed operations and contractual liability coverage.  The policy shall include an endorsement identifying Buyer, and its affiliated and subsidiary companies as additional insured on a primary/non-contributory basis.  The policy shall also contain a waiver of subrogation in favor of purchaser; (ii) commercial automobile liability insurance covering use of all owned, non-owned and hired vehicles with bodily injury and property damage limit of at least $1,000,000 combined single limit.  The policy shall include coverage for additional insured to purchaser (either by endorsement or per policy terms) for any and all liability incurred due to the actions of Seller or Seller’s agents, employees, or subcontractors; (iii) workers compensation and employers liability insurance with statutory limits in accordance with applicable state and federal laws, with a minimum employers liability limit of $500,000 each accident / $500,000 policy limit-disease / $500,000 each employee-disease.  The policy shall contain a waiver of subrogation in favor of purchaser; (iv) excess liability (umbrella) insurance policy in the amount of at least $1,000,000 per occurrence and in the aggregate.  The policy shall be excess over the coverages set forth above and shall be a follow form policy at least as broad as the underlying.  Seller agrees to submit certificates of insurance evidencing its insurance coverage upon execution of this contract and when as requested by Buyer.
14. CONFIDENTIALITY.  Seller shall not, without first obtaining Buyer’s written consent, disseminate the fact that Seller has furnished or has contracted to furnish Buyer with the items covered hereby nor, except as is necessary for performance of this purchase order, shall Seller disclose any of the details connected with this purchase order to third parties.  All specifications, documents, and prototype goods delivered by Buyer to Seller are the property of Buyer and are delivered solely for the purpose of Seller’s performance of this purchase order on the express condition that neither they nor the information contained therein shall be disclosed to others nor used for any purpose other than in connection with this purchase order, without the prior express written consent of Buyer.  Such specifications, documents, and goods, including all copies or other reproductions thereof made by Seller in connection with Seller’s performance under this purchase order, are to be returned to Buyer promptly upon its written request.  Such request may be made at any time during or after completion of Seller’s performance hereunder.  The obligations under this Section 14 will survive the cancellation, termination, or completion of this purchase order.  Any unpatented knowledge or information concerning Seller’s products, methods, or manufacturing processes which Seller may disclose to Buyer incident to the manufacture of the goods covered by this purchase order shall, unless otherwise specifically agreed in writing, be deemed to have been disclosed as part of the consideration for this purchase order and Seller agrees not to assert any claim against Buyer by reason of Buyer’s use or alleged use thereof. 
15. NOTICES.  All written notices, requests, demands, consents, certificates, or other communications required or permitted to be given hereunder shall be sufficiently given when mailed by (a) certified mail, return receipt requested, postage prepaid, (b) commercial overnight delivery courier, fees prepaid, or (c) facsimile transmission and confirmed by method (a) or (b) above, addressed to Buyer or Seller, as the case may be, at their respective most recent addresses on file with the other party hereto.  Either party may, by like notice at any time and from time to time, designate a different address to which notices shall be sent.
16. ASSIGNMENT AND SETOFF. This purchase order and any payments to be made hereunder may not be assigned or transferred by Seller and no invoices may be rendered by persons other than Seller, without the prior written permission of Buyer.  None of the provisions contained herein shall confer any benefit on any person other than Buyer and Seller.  All claims for monies due or to become due to Seller from Buyer shall be subject to deduction by Buyer for any setoff or counterclaim arising out of this or any other purchase orders with Seller, whether such setoff or counterclaim arose before or after any such assignment by Seller. 
17. WAIVER.  No waiver shall be implied by Buyer’s failure to insist on performance of any of the terms or conditions herein or to exercise any right or privilege granted to Buyer hereby.  No express waiver by Buyer shall be construed as waiving any breach hereunder or the performance of any of the terms or conditions hereof not specified in the express waiver, and then only for the time and to the extent stated therein.  One or more waivers of any covenant, term, or condition hereof shall not be construed as a waiver of a subsequent breach of the same covenant, term, or condition.
18. SEVERABILITY.  If any covenant, term, or condition hereof or the application thereof to any circumstance or person shall, to any extent, be held invalid or unenforceable by any court of com­petent jurisdiction, the remaining valid and enforceable covenants, terms, and conditions hereof and the application of such invalid or unenforceable covenant, term, or condition to circumstances or persons other than those as to which it has been held invalid or unenforceable shall not be affected thereby and each remaining valid and enforceable covenant, term, and condition shall be valid and enforceable to the fullest extent permitted by law.
19. LIMITATION OF LIABILITY. In no event shall Buyer be liable to Seller for any incidental or consequential damages.
20. COMPLIANCE WITH LAWS. Seller agrees to comply promptly and fully with every federal, state, and local law, rule, or regulation which directly or indirectly regulates or affects the goods or services called for by this purchase.
21. FORUM AND JURISDICTION. Seller and Buyer hereby agree that any legal action deemed necessary by either party to this purchase order shall solely and exclusively be brought in the Circuit Court in and for Marathon County, Wisconsin and hereby consent to the personal jurisdiction of such court in any such action over the parties hereto.  If, contrary to the provisions of this Section 21, Seller commences any legal action involving this purchase order or the goods provided or services rendered hereunder in any forum other than that specified above, Buyer shall be entitled to the dismissal of such action based upon the agreement of the parties contained in this Section 21.  THIS PROVISION SPECIFICALLY EXCLUDES VENUE AND JURISDICTION IN ANY OTHER state or federal COURT.
22. GOVERNING LAW. This agreement shall be governed and construed according to the internal laws of the State of Wisconsin without regard to conflict of laws principles and shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods.