Terms and Conditions

SELLER’S TERMS & CONDITIONS

1. Applicability.

(a) These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (the “Goods”) listed in the confirmation of sale (the “Sales Confirmation”) by Smart Vision Lights, LLC (“Seller”) to the buyer of the Goods (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

(b) The Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. 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 these Terms.

(c) BY PLACING AN ORDER FROM WWW.SMARTVISIONLIGHTS.COM (the “Website”) OR ANY OTHER FORM OF PURCHASE FROM SELLER, WHETHER ELECTRONIC OR OTHERWISE, BUYER ACCEPTS AND IS BOUND BY THESE TERMS. BUYER MAY ONLY ORDER OR OBTAIN GOODS FROM SELLER IF BUYER AGREES TO THESE TERMS, AND IS NOT PROHIBITED FROM ACCESSING OR USING THE WEBSITE OR ANY OF ITS CONTENTS, GOODS, OR SERVICES BY APPLICABLE LAW.

2. Delivery.

(a) Seller will endeavor to ship the Goods within 30 days after the receipt of Buyer’s purchase order, subject to availability of finished Goods for standard or custom products; however, Seller does not guaranty delivery and Seller shall not be liable for any delays, loss, or damage in transit.

(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Buyer using Seller’s standard packaging and shipping such Goods.

(c) Seller may, in its sole discretion, without liability, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. Should Buyer fail to accept and pay for each shipment or delivery, Seller may, without prejudice to any other lawful remedy, (a) defer further shipments or deliveries until acceptance thereof by Buyer or until payment is made by Buyer, (b) at its sole discretion and without liability whatsoever, terminate this contract as to any unaccepted or undelivered portion thereof, as well as any other outstanding contract with Buyer, and (c) recover from Buyer any expenses and losses sustained by Seller.

(d) If for any reason Buyer fails to accept delivery of any of the Goods, or if Seller is unable to deliver the Goods because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).


3. Price.

(a) Buyer shall purchase the Goods from Seller at the price set forth in Seller’s published price list in force as of the date of Buyer’s purchase order (the “Price”).

(b) All Prices are exclusive of all shipping and handling charges and all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, real or personal property, or other assets. The total owed to Seller for purchase of the Goods will be listed in the Sales Confirmation (the “Invoiced Amount”).

(c) Seller is not responsible for any pricing, typographical, or other errors in any offer, and Seller may cancel this Agreement at any time if it was entered into based on any such errors.

4. Payment Terms.

(a) Buyer shall pay the Invoiced Amount within 30 days of receipt of the Sales Confirmation. Buyer shall make all payments hereunder in U.S. funds.

(b) Beginning the 31st day after receipt of the Sales Confirmation, Buyer shall pay interest on the Invoiced Amount at the lesser of 2% or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorney’s fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder following written notice thereof.

(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

5. Shipping Terms. Shipment will be made F.O.B. at Seller’s facility.

6. Title and Risk of Loss. Title to the Goods passes to Buyer upon Buyer’s payment of the Invoiced Amount. Liability for loss or damage passes to Buyer on delivery of the Goods to the carrier at the F.O.B. shipping point listed in Section 5.

7. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

8. Inspection and Rejection of Nonconforming Goods.

(a) Buyer shall inspect the Goods within 3 days of receipt (the “Inspection Period”). Buyer will be deemed to have irrevocably accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. After acceptance, Buyer will have no right to reject the goods for any reason or revoke acceptance. “Nonconforming Goods” means only product shipped that is different than identified in Buyer’s purchase order.

(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 5113 Robert Hunter Drive, Norton Shores, Michigan 49441. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship the replacement Goods to Buyer at Buyer’s sole expense and risk of loss.

(c) Buyer acknowledges and agrees that the remedies set forth in Section 8(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.

9. Quantity. If Seller delivers to Buyer a quantity of Goods of up to 90 % more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the Invoiced Amount adjusted pro rata. Shortages or errors made in filling an order must be reported to Seller within 3 days of delivery or Seller will not be obligated to adjust the Invoiced Amount. Before claiming a shortage, Buyer must verify that no containers were received in damaged condition.

10. Non-Delivery.

(a) The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s facility is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.

(b) The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 3 days of the date when the Goods would have been received in the ordinary course of events.

(c) Any liability of Seller for non-delivery of the Goods shall be limited, in Seller’s sole discretion, to providing the Goods to Buyer within a reasonable time or refunding the Invoiced Amount respecting such Goods not delivered.

11. Warranties/Limitation of Warranties. THE WARRANTIES APPLICABLE TO THE GOODS ARE LIMITED TO THOSE DETAILED AT WWW.SMARTVISIONLIGHTS.COM/10-year-warranty. No claim under the above warranty shall be honored unless (i) it is submitted to Seller in writing within sixty (60) days after discovery and within the warranty period, and (ii) Buyer shall cease to use the goods and give Seller a full written report supporting its claim. If Seller finds the equipment to be defective, Seller will repair or replace it without charge and bear the cost of transportation for the defective goods. Except as provided by this paragraph, Seller shall not be liable for any labor, transportation or other expense required to replace or repair defective goods nor in any event for any direct, indirect, special, incidental or consequential damages arising out of or occasioned by a defect or failure of any goods sold to Buyer, nor for any loss arising from the use or resale thereof. SELLER PROVIDES NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THE GOODS CONTAINED IN THIS CONTRACT.

12. Limitation of Liability.

(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR DATA; ANY DIMINUTION IN VALUE; OR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES; WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE; REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) BUYER’S SOLE REMEDIES FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT ARE FOR REFUND OF THE TOTAL AMOUNTS PAID TO SELLER FOR THE GOODS OR REPLACEMENT OF THE GOODS. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY PART OF THIS AGREEMENT; WHETHER ARISING OUT OF OR RELATED TO, WITHOUT LIMITATION, ANY BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE; EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS.

(c) BUYER SHALL NOT BRING ANY ACTION OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT MORE THAN SIX MONTHS FROM THE DATE OF DELIVERY OF THE GOODS TO BUYER.

13. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods.

14. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms or the Agreement, in whole or in part; (iii) breaches or terminates any other contract between Buyer and Seller; or (iv) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it any proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. In the event of any cancellation under this paragraph, Seller, without prejudice to any other rights available to it for breach of this Agreement or at law, shall have the right to (i) refuse to deliver any Goods; (ii) recover from Buyer all unpaid Invoiced Amounts for all Goods delivered to Buyer and any additional freight, storage, handling, and other expenses incurred by Seller, including costs and attorney’s fees; and (iii) sell elsewhere any Goods regarding which Buyer has not paid the Invoiced Amount and charge Buyer for any resultant damages.

15. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

16. Confidential Information. All non-public, confidential, or proprietary information of Seller; including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates; disclosed by Seller to Buyer; whether disclosed orally or disclosed or accessed in written, electronic, or other form or media and whether or not marked, designated, or otherwise identified as “confidential”; in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is in the public domain.

17. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond Seller’s reasonable control, including, without limitation, the following force majeure events (each, a “Force Majeure Event”): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities; and (i) any other similar events beyond the reasonable control of Seller. Seller shall give notice within 14 days of the Force Majeure Event to Buyer, stating the period of time the occurrence is expected to continue. If Seller’s failure or delay remains uncured for a period of 14 days following its written notice under this Section, either party may thereafter terminate this Agreement upon 7 days’ written notice.

18. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

19. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

20. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these this Agreement.

21. Attorney’s Fees. In the event Seller seeks to enforce any of the terms and conditions hereof, Seller shall be entitled to collect Seller’s reasonable attorney’s fees and expenses.

22. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.

23. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in Muskegon County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

24. Notices. All notices, request, 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), facsimile (with confirmation of transmission) or email, 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.

25. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

26. Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination, expiration, or performance of this Agreement, including, but not limited to, Sections 1, 6, 8–16, and 19–26.

 

BUYER’S TERMS & CONDITIONS

1. Applicability.
(a) The offer by Smart Vision Lights, LLC (the “Buyer”) to purchase the goods (the “Goods”) specified on the face of the purchase order from the party to whom the purchase order is addressed (the “Seller”) is expressly made in accordance with and subject to these terms and conditions (these “Terms”) and the terms and conditions on the face of the purchase order (such terms and conditions and these Terms, collectively, this “Order”). This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations, warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with this Order which Seller’s terms are hereby rejected.
(b) These Terms also apply to any repaired or replacement Goods provided by Seller hereunder.
(c) Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.

2. Acceptance. This Order is not binding on Buyer until Seller accepts the Order in writing. Buyer may withdraw the Order at any time before receiving such written acceptance from Seller.

3. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If no delivery date is specified, Seller shall deliver the Goods within 7 days of Seller’s receipt of the Order. Timely delivery of the Goods is of the essence. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate the Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date.

4. Delivery Location. All Goods shall be delivered to the address specified in this Order (the “Delivery Location”) during Buyer’s normal business hours or as otherwise instructed by Buyer.

5. Price. The price of the Goods is the price stated in the Order (the “Price”). If no price is included in the Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Order. Unless otherwise specified in the Order, the Price is the total amount Buyer shall pay for receipt of the Goods from Seller, including, without limitation, all packaging and transportation costs to the Delivery Location, insurance costs, customs duties and fees, and applicable taxes, including, but not limited to, all sales, use, or excise taxes. No increase in the Price is effective; whether due to increased material, labor, transportation costs, or otherwise; without the prior written consent of Buyer.

6. Shipping Terms. Delivery shall be made in accordance with the terms on the face of this Order. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide all shipping documents; including the commercial invoice, packing list, and any other documents necessary to release the Goods; to Buyer within 3 business days after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, invoices, correspondence, and any other documents pertaining to the Order.

7. Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until delivery of the Goods to the Delivery Location.

8. Packaging. All goods shall be packed for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s expense.

9. Amendment and Modification. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order, and is signed by an authorized representative of Buyer.

10. Quantity. If Seller delivers less than 95 % of the quantity of the Goods ordered, Buyer may reject all Goods or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis. If Buyer accepts the delivery of Goods at an increased quantity, the Price for the Goods shall not be increased, and Buyer may charge Seller for any resulting increased storage or disposal costs.

11. Inspection and Rejection of Nonconforming Goods. The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, within 7 days replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order for cause pursuant to Section 20. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.

12. Most Favored Customer. Seller represents and warrants that the price for the Goods is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under this Order. If Seller fails to meet the lower price, Buyer, at its option, may terminate this Order without liability pursuant to Section 20.

13. Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms. Buyer shall pay all properly invoiced amounts due to Seller within 30 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in U.S. funds. In the event of a payment dispute, Buyer shall deliver a written statement to Seller no later than 3 days prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.

14. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.

15. Warranties. Seller warrants to Buyer that for a period of 36 months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense, within 7 days replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer.

16. General Indemnification. Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s parent company; their subsidiaries, affiliates, successors or assigns; their respective directors, officers, shareholders, members and employees; and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including, without limitation, reasonable attorney and professional fees and costs, the cost of enforcing any right to indemnification hereunder, and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Buyer’s purchase of the Goods from Seller or Seller’s negligence, willful misconduct, or breach of the Terms. Seller shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

17. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify, and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.

18. Insurance. During the term of the Order, Seller shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000 with financially sound and reputable insurers. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in this Order. Seller shall provide Buyer with 7 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Buyer’s insurers and Buyer or the Indemnitees.

19. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties, or any retaliatory duties on the Goods.

20. Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on 3 days’ prior written notice to Seller. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Order with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller 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, then Buyer may terminate this Order upon written notice to Seller. If Buyer terminates the Order for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination.

21. Limitation of Liability. Nothing in this Order shall exclude or limit (a) Seller’s liability under Sections 15, 16, 17, and 23, or (b) Seller’s liability for fraud, personal injury, or death caused by its negligence or willful misconduct.

22. Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

23. Confidential Information. All non-public, confidential or proprietary information of the Buyer; including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates; disclosed by Buyer to Seller; whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential”; in connection with the Order is confidential, solely for the use of performing the Order, and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is in the public domain.

24. Force Majeure. Buyer shall not be liable or responsible to Seller, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (including, without limitation any obligations to make payments to the other party hereunder), when and to the extent Buyer’s failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; (i) other similar events beyond the control of Buyer. Buyer shall give notice within 7 days of the Force Majeure Event to Seller, stating the period of time the occurrence is expected to continue. In the event that Buyer’s failure or delay remains uncured for a period of 30 days following written notice given by it under this Section, either party may thereafter terminate this Agreement upon 7 days’ written notice.

25. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer, or subcontract any or all of its rights or obligations under the Order without Seller’s prior written consent.

26. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.

27. No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

28. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of Michigan.

29. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Michigan in each case located in Muskegon County, Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.

30. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law, in equity, or otherwise.

31. Notices. All notices, request, 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 this Order 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), facsimile (with confirmation of transmission) or email, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, 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.

32. Severability. If any term or provision of this Order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

33. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination, expiration, or performance of this Order including, but not limited to, the following provisions: 1, 7, 9–24, and 26–33.