STANDARD TERMS AND CONDITIONS OF SALE
Effective 11/232020

These terms and conditions of sale (“Agreement”) are applicable to any order placed with and accepted by Us (referred to herein as “Supplier”):

1.     SCOPE OF AGREEMENT. Supplier, upon acceptance of an Order placed by Buyer, will supply the products and services specified in the Order (the “Work”) to Buyer, pursuant to the terms and conditions of this Agreement and its exhibits and Supplier’s acceptance of such order submitted by Buyer is expressly limited to the terms and conditions of this Agreement notwithstanding any contrary provision contained in Buyer’s purchase orders, invoices, acknowledgements or other documents. The details of the Work (e.g. quantity, price, and product specifications) shall be set forth in the relevant Order.

2.     PRICE AND TERMS. (a) The prices payable by Buyer for goods and services to be supplied by Supplier under this Agreement will be specified in the applicable Order. Unless otherwise expressly stated in an Order, all prices exclude shipping and taxes. (b) Payment terms are net thirty (30) calendar days from the date of the invoice. If Buyer does not pay an invoiced amount within terms, Buyer will in addition pay finance charges of one and one-half percent (1.5%) per month on the late balance and Supplier reserves the right to (1) withhold shipment of the Work until full payment is made; and/or (2) revoke any credit extended to Buyer. In the event that Buyer’s account is more than ninety (90) days in arrears, Buyer shall reimburse Supplier for the reasonable costs, including attorneys fees, of collecting such amounts from Buyer. In the event of any dispute regarding an invoice, no finance charges will apply in the event that Buyer provides written notice of the dispute prior to the due date for such payment. (c) Upon reasonable request by the Supplier, Buyer shall provide copies of its most recent audited financial statements or other reasonable evidence of its financial capacity and such other information as Supplier reasonable requests to determine credit status or credits limits. (d) Buyer shall provide notice within five (5) business days of the occurrence of any event which materially affects Buyer’s ability to perform its obligations under this Agreement including but not limited to: (i) the material default of any supplier or sub-contractor; (ii) labor strike or dispute; or (iii) material uncured default with respect to any debt obligations of Buyer. (e) Pricing schedules (whether attached to this Agreement or an Order) are subject to change upon a change in the price of applicable raw materials (as reflected on a recognized trade or commodity pricing tracker) in excess of five percent (5%) from the date of such schedule. (f) Unless otherwise specified in the Order, Work will be delivered FOB Supplier’s manufacturing facility and will be shipped to Buyer via carriers selected by Supplier.

3.     BUYER MATERIALS AND DATA. (a) Buyer represents and warrants that any matter it furnishes for performance of services by Supplier (i) does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party. (b) Buyer warrants that it has the right to use and to have Supplier use on behalf of Buyer any data provided to Supplier or its Affiliates by Buyer including specifically customer names, identifying information, addresses and other contact information and related personal information (“Data”). Buyer further warrants that it will designate on the applicable Order if Data provided pursuant to that Order is subject to HIPAA, Gramm-Leach-Bliley or other statutes providing enhanced data protection or requiring enhanced data security procedures.

4.     INVENTORY. In the event any inventory is maintained by the Supplier on behalf of Buyer,  Addendum 1  incorporated herein shall apply.

5.     SOS Products. In the event the products in an Order are SOS Products and Services (as defined herein), Addendum 3 incorporated herein shall apply.

6.     INTELLECTUAL PROPERTY. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Buyer as of the date of the Order or made or conceived by employees of Buyer during the Term of the Order shall be and remain the sole and exclusive property of Buyer provided that Buyer grants to Supplier a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Supplier as reasonably necessary to perform any Order. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Supplier as of the date of the Order or made or conceived by employees, consultants, representatives or agents of Supplier during the term of this Agreement shall be and remain the sole and exclusive property of Supplier. Without limiting the generality of the foregoing, the parties agree that Supplier will own systems (including all web source code) related to the Services provided hereunder, including all modifications, upgrades and enhancements thereto made during the term of the Order. Without limiting the generality of the foregoing, Buyer acknowledges and agrees that Supplier is in the business of developing customized print and e-commerce solutions, and the provision of print and fulfillment order services, and that Supplier shall have the right to provide to third parties services which are the same or similar to the services provided herein and to use or otherwise exploit any Supplier materials in providing such services.

7.     CONFIDENTIAL INFORMATION. Any information that parties receive or otherwise have access to incidental to or in connection with this Agreement (collectively, the “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used to the extent necessary to perform this Agreement and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the Work hereunder. In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Supplier and Buyer, and in no event shall Supplier acquire and right, title, or interest in and to any materials or information provided to it by Buyer.

8.     INDEMNIFICATION. The indemnifying party, as Indemnitor, shall indemnify, defend and hold harmless the indemnified party, as Indemnitee, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including attorney fees) arising from any third-party claim based on Indemnitor’s (or its agent’s) breach of any representation, warranty, covenant, agreement, or obligation under the Order or this Agreement , or Indemnitor’s (or its agent’s) grossly negligent and/or willful acts in carrying out its obligations under the Order or the Agreement, provided that in no event shall Supplier be responsible for any claims arising out of its compliance with instructions, requirements, or specifications provided by or required by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer). Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. In order to avail itself of this indemnity provision, Indemnitee shall promptly provide notice to Indemnitor of any such claim, tender the defense of the claim to Indemnitor, and cooperate with Indemnitor in the defense of the claim. Indemnitor shall not be liable for any cost, expense, or compromise incurred or made by Indemnitee in any legal action without the Indemnitor’s prior written consent.

9.     BREACH. In addition to all other rights to which a party is entitled under this Agreement, if either party breaches any term of the Order or the Agreement, the non-breaching party shall have the right to: (a) terminate the Order immediately upon written notice to the other party; and (b) seek to obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this Agreement. Failure to properly demand compliance or performance of any term of the Order or this Agreement shall not constitute a waiver of Supplier’s rights hereunder and prior to any claim for damages being made for non-conformance or breach, Buyer shall provide Supplier with reasonable notice of any alleged deficiencies in the Work or performance under the Order or this Agreement and Supplier shall have a reasonable opportunity to cure any such alleged non-conformance or breach.

10. WARRANTY. Supplier warrants that the Work shall reasonably conform to specifications in all material respects. If applicable and at Supplier’s option, Supplier may provide Buyer with an on-line printing proof for Buyer approval. If a proof has been provided, once Buyer approves a proof, Buyer will be liable for all fees associated with the order, as specified in the Order. If Buyer supplies Supplier stock or items for imprinting as part of the Order, Supplier is not responsible for issues related to the quality of the stock or items for imprinting. Supplier will not provide refunds for any Work conforming to specifications in all material respects. Other than the warranties set forth in this section, Supplier makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the services performed or any items produced will be merchantable or fit for any particular purpose or use. In the event of any breach of any warranty specified in this provision, Buyer’s exclusive remedy shall be that Supplier shall, at its option, repair or replace any defective goods at no cost to Buyer or refund any purchase price paid for such Work.

11.  LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND VENDOR’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND THE ORDER SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.

12.  NOTICE. Any notice sent pursuant to the Order or this Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the Order or to such address as either party may in the future designate. A copy of any notice to Supplier shall be also sent to General Counsel, 1725 Roe Crest Drive, North Mankato, Minnesota 56003 together with a copy this Agreement. Notices shall be effective upon receipt.

13. ASSIGNMENT. Except as otherwise provided, the Order and this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.

14. STATUS. Buyer and Supplier are separate entities. Nothing in the Order or this Agreement shall be construed as creating an employer-employee or joint venture relationship.

15. COMPLIANCE WITH LAW. Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.

16. GOVERNING LAW. The Order and this Agreement shall be governed by the laws of the State of Minnesota, without reference to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the Order or these this Agreement shall be commenced in a federal court in Minnesota or in state court in the County of Nicollet, Minnesota, and the appellate courts thereof, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. With respect to any litigation arising out of the Order or this Agreement, the parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury and the prevailing party shall be entitled to recover its expenses, including reasonable attorney’s fees, from the other party.

17. FORCE MAJEURE. Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.

18. SURVIVAL. In the event any provision of the Order or this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Order or this Agreement will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the Term shall survive the termination of the Order and this Agreement.

19. ENTIRE AGREEMENT. The Order, this Agreement and the operative provisions of any quotation issued by Supplier and any purchase order issued by Buyer, sets forth the entire agreement and understanding among the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every and any nature among them. No proposal, purchase order, order confirmation, acceptance, or any other document provided by either Party to the other, nor any electronic click-wrap, terms of use or similar online consent or acceptance language accompanying or set forth as a prerequisite to any electronic interface or utility associated with any Work, shall be deemed to amend the terms hereof and any such contradictory or additional terms shall be ineffective. No party shall be bound by any condition, definition, warranty, or representations, other than as expressly set forth or provided for in the Order or this Agreement, or as may be, on or subsequent to the date hereof set forth in writing and signed by the party to be bound thereby. In the event of any ambiguity or conflict between any of the terms and conditions contained in this Agreement and the terms and conditions contained in an Order, the terms and conditions of this Agreement shall control, unless the Parties have expressly provided in such Order that a specific provision in this Agreement is amended, in which case this Agreement shall be so amended, but only with respect to such Order. The Order or this Agreement may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby.

 


 

ADDENDUM 1

Inventory

1.             Stored Inventory and Storage Periods

(a)  Stored Inventory.  Supplier shall store, at Client's request, the Client Owned Property, the Supplier Managed Property or Buyout Property (collectively “Stored Inventory”) at a Supplier Facility selected by Supplier.  Client Owned Property, Supplier Managed Property and Buyout Property are defined below.

 

(b)  Initial Storage Period.  Except for promotional Products, which shall have a maximum Storage Period of ninety (90) days, Supplier shall store, at Client's request, the Stored Inventory for initial storage period not to exceed one hundred eighty (180) days (the "Initial Storage Period").  Supplier shall release the Stored Inventory, in whole or partial carton shipments, for delivery to Client in accordance with the provisions of the Agreement and this Addendum.  At the expiration of the Initial Storage Period, and except as provided under Supplier Managed Property Section (c), Supplier shall invoice and ship all Stored Inventory that are remaining in storage to Client, in accordance with the provisions of the Agreement and this Addendum.

 

(c)  Extended Storage Period.  Supplier may, in its sole discretion, approve an extended storage period of three (3) months in excess of the Initial Storage Period (the “Extended Storage Period”).

 

(d)  The aggregate of the Initial Storage Period and the Extended Storage Period (collectively “Storage Period”) shall not exceed two hundred seventy (270) days for any Stored Inventory. 

 

2.             Storage Fees

During any Storage Period, Client shall pay Supplier, as applicable, all costs, charges, fees, and expenses relating to the receipt, warehousing, storage, and inventorying Stored Inventory fees at Supplier’s then current rates (collectively, “Storage Fees”).  All Storage Period fees will be invoiced by Supplier to Client periodically at its discretion.

3.             Client Owned Property:

As may be more specifically described in a SOW, Supplier may receive, warehouse, store, and inventory products, materials, and other goods that are purchased and owned by Client (“Client Owned Property”) at one or more Supplier’s designated warehouses (“Supplier Facility”) to facilitate efficiencies in the performance of the Work. In the event Supplier receives, warehouses, stores, and/or inventories Client Owned Property at a Supplier Facility:

(a)   Client shall pay Supplier all Storage Fees associated with the Client Owned Property.

(b)   Supplier shall not at any time be liable for any loss or damage to the Client Owned Property and Client shall at all times have and hereby assumes all liability and risk of loss and damage for the Client Owned Property, unless such liability, loss, or damages is caused by the gross negligence or willful misconduct of Supplier.

(c)   Client shall obtain sufficient insurance coverage to protect both Parties against any loss of or damage to the Client Owned Property that might occur during the Term, including without limitation, while such Client Owned Property is located at the Supplier Facility or otherwise under Supplier’s control.

(d)   If the Storage Period for the Client Owned Property has expired or Supplier reasonably determines that the Client Owned Property is no longer active (i.e. no, minor, or relatively slow sales or related activities) and, in any event, upon expiration or termination of this Agreement or the applicable SOW, Supplier will use commercially reasonable efforts to notify Client of any such determination and Client shall select one of the following options:

(1)   Shipment of the inactive Client Owned Property to Client after Supplier receives payment for all Storage Fees and prepayment of all freight and delivery charges;

(2)   Destruction of the inactive Client Owned Property after Supplier receives payment for all Storage Fees and prepayment of all delivery, destruction, and other similar charges; or

(3)   Maintain the inactive Client Owned Property at a Supplier Facility, provided, that Client accepts Supplier’s increased price for the Storage Fees and any additional handling fees and pays such amounts in a timely manner.

Client shall provide its selection of the foregoing to Supplier in writing within five (5) business days after Supplier’s notice. If Client fails to provide such notice in a timely manner, Supplier may select one or a combination of the foregoing options and charge Client for the Storage Fees and other charges related to the inactive Client Owned Property. Client agrees to pay all amounts due (including without limitation, prepaid amounts) within fifteen (15) days after the date of the applicable invoice therefor. If Client does not pay amounts due within such 15-day period, Supplier may, and Client hereby authorizes Supplier to, take possession of the inactive Client Owned Property and destroy or otherwise dispose of the same, as Supplier deems appropriate in its sole discretion. For clarity, notwithstanding anything in this Agreement to the contrary, Client shall be liable for all costs and expenses related to the inactive Client Owned Property, including without limitation, all costs, fees and expenses relating to shipment (whether to or from Client or otherwise), warehousing, storage, inventory, destruction, disposal, enforcement of and collection under this Agreement, including reasonable attorneys’ fees, and no action taken by Supplier pursuant to this Inventory Addendum shall release Client from the liability and obligation to pay all amounts due hereunder.

4.             Supplier Managed Property:

As may be more specifically described in a SOW, Supplier may receive, warehouse, store, and inventory products, materials, and other goods that are purchased or produced by Supplier on behalf of Client (“Supplier Managed Property”) at a Supplier Facility to facilitate efficiencies in the performance of the Work. In the event Supplier purchases or produces Supplier Managed Property and warehouses, stores, and/or inventories such at a Supplier Facility:

(a)   Client will pay for the Supplier Managed Property:

(1)   In the case of bill and hold inventory, Client will pay for Supplier Managed Property at the time it is received into the Supplier’s Facility (“Bill and Hold Inventory”).  In the event the Supplier Managed Property is Bill and Hold Inventory, Client agrees and acknowledges that (i) Client has made a fixed commitment to purchase such Bill and Hold Inventory; (ii) title to and risk of loss of the Bill and Hold Inventory shall transfer from Supplier to Client at the time the inventory is received into Supplier’s Facility; (iii) Client has requested that such Bill and Hold Inventory be on a bill and hold basis; (iv) Client is responsible for any decrease in market value of such Bill and Hold Inventory that relates to factors and circumstances outside of Supplier’s reasonable control; and (v) Client will maintain adequate insurance (as determined solely by Client) for all Bill and Hold Inventory located in Supplier’s Facility; or

(2)   In the case of pay on release inventory, Client will pay for Supplier Managed Property at the time it is released from Supplier’s Facility (“Pay on Release Inventory”).  In the event the Supplier Managed Property is Pay on Release Inventory, Client agrees and acknowledges that (i) Client has made a fixed commitment to purchase such Pay on Release Inventory; (ii) title and risk of loss of the Pay on Release Inventory shall transfer from Supplier to Client at the time the inventory is shipped to Client, provided that Client acknowledges that all risk of obsolescence while in storage is the responsibility of Client; (iii) Client has requested that the Pay on Release Inventory is stored on a pay on release basis; and (iv) Client is responsible for any decrease in market value of such Pay on Release Inventory that relates to factors and circumstances outside of Supplier’s reasonable control. Supplier will maintain insurance for Pay on Release Inventory located in Supplier’s Facility.

(3)   In the event the Parties have not expressly agreed on whether or not the Supplier Managed Property is Bill and Hold or Pay on Release Inventory, Client acknowledges and agrees that the Supplier Managed Property will be paid for on a Bill and Hold Inventory basis.

(b)   Client shall pay Supplier all Storage Fees for the Supplier Managed Property.

(c)   If the Storage Period for the Supplier Managed Property has expired or Supplier reasonably determines that the Supplier Managed Property is no longer active (i.e. no, minor, or relatively slow sales or related activities) and, in any event, upon expiration or termination of this Agreement or the applicable SOW, Supplier will use commercially reasonable efforts to notify Client of any such determination and Client shall select one of the following options:

(1)   Client shall issue a purchase order or other similar such documentation to Suppler authorizing Supplier to invoice Client for the Pay on Release Inventory, if any,  all Storage Fees, and shipment of the inactive Supplier Managed Property to Client whether Bill and Hold Inventory or Pay on Release Inventory;

(2)   Shipment to Client of the inactive Bill and Hold Inventory or Pay on Release Inventory, after Supplier receives payment for all Supplier Managed Property, Storage Fees and prepayment of all freight and delivery charges;

(3)   Destruction of the inactive Supplier Managed Property, whether Bill and Hold Inventory or Pay on Release, after Supplier receives payment for all Supplier Managed Property and all Storage Fees and prepayment of all delivery, destruction, and other similar charges; or

(4)   Maintain the inactive Supplier Managed Property at a Supplier Facility, provided, that Client pays all amounts owing for the Pay on Release Inventory and accepts Supplier’s increased price for Storage Fees and additional handling fees and pays such amounts in a timely manner.

Client shall provide its selection of the foregoing to Supplier in writing within five (5) business days after Supplier’s notice. If Client fails to provide such notice in a timely manner, Supplier may select one or a combination of the foregoing options and charge Client for the Storage Fees and other charges related to the inactive Supplier Managed Property. Client agrees to pay all amounts due (including without limitation, prepaid amounts) within fifteen (15) days after the date of the applicable invoice therefor. If Client does not pay amounts due within such 15-day period, Supplier may, and Client hereby authorizes Supplier to, take possession of the inactive Supplier Managed Property and destroy or otherwise dispose of the same, as Supplier deems appropriate in its sole discretion. For clarity, notwithstanding anything in this Agreement to the contrary, Client shall be liable for all costs and expenses related thereto, including without limitation, the price of the product, all Storage Fees, and all other costs, fees and expenses relating to shipment (whether to or from Client or otherwise), destruction, resale, enforcement of and collection under this Agreement, including reasonable attorneys’ fees, and no action taken by Supplier pursuant to this Inventory Addendum shall release Client from the liability and obligation to pay all amounts due hereunder.

5.             Buyout Property

In the event Supplier, in its sole discretion, purchases any Client Owned Property from Client as part of Client’s transition to Supplier (the “Buyout Property”), The Parties shall mutually agree upon the purchase price to be paid by Supplier for all Buyout Property after physical verification of the Buyout Property and entry into Supplier's inventory management data base (the "STG Purchase Price").  Supplier shall issue to Client a credit memo (the "Credit Memo") in an amount equal to the STG Purchase Price. The Credit Memo may only be used for the repurchase of the Buyout Property from Supplier and has no cash value.  Client shall subsequently repurchase the Buyout Property from Supplier as Supplier releases and ships the Buyout Property to Client using the Credit Memo. Under no circumstances may Client repurchase the Buyout Property via check, ACH, or credit card.  In any event, all Buyout Property shall be repurchased by Client within six (6) months of being placed into Supplier’s Facility.  Client expressly acknowledges and agrees that purchases of any and all Buyout Property from Supplier are on an “AS IS” and “WHERE IS” basis with no warranties whatsoever and Supplier shall not be liable for any defects in the Buyout Property.  Client shall pay Supplier all Storage Fees for the Buyout Property.

 

 


 

ADDENDUM 3

SOS Product

Buyer may, from time to time, purchase SOS Products and Services from Supplier. These provisions in this Addendum 3 apply to the purchase of such SOS Products and Services. These provisions also apply to any safety-related Buyer Materials provided by Buyer or a third-party vendor at the direction of Buyer, as well as services provided by Supplier in connection with any SOS Products and/or Buyer Materials (“Services”). “SOS Products” under this Addendum 3 shall mean any medical grade and non-medical grade (general use) products such as, for example and not limited to the following:

a.       Face Coverings such as face masks, face shields, and goggles.

b.       Sanitizers and Disinfectants such as antiseptic wipes, hand sanitizers, hand wipes, and other cleaning supplies and agents.

c.        Protective apparel and accessories such as gloves, aprons, disposable and reusable wearables.

d.       Other products of a similar nature and function requested by Buyer from time to time in an Order.

1. Orders remain subject to performance by Supplier’s vendors, service providers, and government authorities, as well as Supplier’s manufacturing and fulfillment capacity. If Supplier is unable to fulfill an Order within thirty (30) days of acceptance, Buyer (or its customer, as the case may be) will have the option to (a) have Supplier issue a refund of any deposit or pre-payment; or (b) stay in queue for subsequently produced or arriving SOS Products and Services. Notwithstanding the foregoing, in the event an Order is amended at any time after Supplier’s acceptance of such Order, Buyer (or its customer) will pay for all components (including raw materials and blank goods) of the SOS Products and Services which Supplier paid for or procured, and the pro rata portion of the SOS Products and Services prior to Supplier receiving and processing the cancellation or amendment of the Order.

2. Supplier represents and warrants that Supplier will convey good title to tangible deliverables. Supplier disclaims all other warranties, express or implied, including warranties of merchantability, fitness for intended purpose, use, and non-infringement, all of which are expressly disclaimed.

3. Buyer represents, warrants and covenants that: (a) Buyer is aware of the fact that non-medical, general use SOS Products are not intended for medical purposes and uses and that the non-medical, general use SOS Products may not have been warehoused or otherwise stored or packaged in a facility certified to store medical devices; (b) Buyer has independently determined that the SOS Products and Services meet Buyer’s needs, including, but not limited to the intended use of the SOS Products by Buyer or Buyer’s customers, as solely determined by Buyer; (c) Buyer has and will continue to comply with all applicable laws, rules, and regulations, including, but not limited to its use and further distribution of the SOS Products and Services; (d) Buyer has NOT relied on Supplier for Buyer’s compliance with any laws applicable to Buyer, its customers, or the SOS Products. Buyer will indemnify, defend, and hold Supplier harmless from any claims arising from any breach or alleged breach of this provision as well as any use of the SOS Products by Buyer or third parties as well as Buyer’s (or third parties’) inability to use the SOS Products.

4. In the event of any failure by Supplier to perform the material terms of an Order, Supplier’s exclusive obligation shall be the refund of any payments made by Buyer or a third party for any non-conforming SOS Products.

5. IN NO EVENT WILL SUPPLIER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, PUNITIVE, INDIRECT, OR EXEMPLARY DAMAGES. IN NO EVENT WILL SUPPLIER’S LIABILITY WITH RESPECT TO ANY ORDER FOR SOS PRODUCTS AND SERVICES EXCEED THE PURCHASE PRICE SPECIFIED IN THE ORDER. IN NO EVENT WILL SUPPLIER BE LIABLE TO BUYER OR ANY OTHER PERSON, AND BUYER WILL INDEMNIFY AND DEFEND SUPPLIER IN ANY CLAIM, FOR DAMAGES CAUSED BY OR ASSOCIATED WITH THE SOURCING, REPACKAGING, KITTING, OR SELLING OF THE SOS PRODUCTS AND SERVICES AND/OR THE BUYER MATERIALS.

6. The terms and conditions contained in this Addendum 3 will control with respect to SOS Products and Services in the event of a conflict with any other terms and conditions in this Agreement.