Keeney Holdings LLC.

Standard Vendor Terms & Conditions

1. Payment Terms. Net amount of invoice is due in full within thirty (30) days of date of invoice, unless we specify otherwise in writing. Interest at the highest rate allowed by law or 15% per annum, whichever is less, shall be charged on any invoice that is more than fourteen (14) days past due. If payments by Buyer are overdue on more than two occasions within a period of three consecutive months, we may require payment by certified check, cashiers’ check, or bank wire transfer as a condition to further shipments. We reserve the right to withhold shipments if any payment is more than thirty (30) days past due. If, in our opinion, the financial condition of the Buyer at any time does not justify continuance of production or shipment on the terms of payment specified, we may require full orpartial payment in advance. All payments shall be in United States Dollars unless otherwise specified by us. 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.


2. Shipment. Unless we specify otherwise in writing, all prices are F.O.B. our factory. Method and route of shipment are at our discretion, unless the Buyer supplies explicit instructions. All shipments are insured at the Buyer’s expense and made at the Buyer’s risk.


3. Taxes. The amount of the present or future sales, revenue, excise, or other taxes applicable to the products listed in this invoice shall be added to the purchaseprice and shall be paid by the Buyer, or in lieu thereof, the Buyer shall provide us with a tax exemption certificate acceptable to the taxing authorities of any relevant jurisdiction.


4. Quotations and Prices. Prices are subject to change without notice and orders for future delivery will be billed at the price in effect at the time of delivery. Written quotations automatically expire thirty (30) calendar days from the date issued, unless extended in writing by Seller, and are subject to termination by notice withinthat period.


5. Force Majeure. We shall not be liable for loss or damage of any kind resulting from delay or inability to deliver on account of fire, labor troubles, acts of civil ormilitary authorities, or from any other cause beyond our reasonable control.


6. LIMITATION OF LIABILITY. SELLER'S LIABILITY (WHETHER UNDER THE THEORIES OF BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE, OR STRICT LIABILITY) FOR ITS GOODS SHALL BE LIMITED TO REPAIRING OR REPLACING PARTS FOUND BY SELLER TO BE DEFECTIVE, OR AT SELLER'S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH GOODS OR PARTS THEREOF. AT SELLER'S REQUEST, BUYER WILL SEND, ATBUYER'S SOLE EXPENSE, ANY ALLEGEDLY DEFECTIVE PARTS TO THE PLANT OF SELLER WHICH SOLD THEM. THIS LIMITATION, ALONG WITH SECTION 7 BELOW, SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY'S ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED FIVE (5) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER, OR $10,000, WHICHEVER IS LESS.


7. DISCLAIMER OF CONSEQUENTIAL DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INDIRECT DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING WITHOUT LIMITATION TO BREACH OF ANY OBLIGATION IMPOSED ON SELLER HEREUNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION LOSS OF USE, INCOME OR PROFIT OR LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSON OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION PROPERTY HANDLED OR PROCESSED BY THE USE OF THE GOODS, OR DAMAGES OR LOSSES SUSTAINED AS THE RESULT OF WORK STOPPAGE. BUYER SHALL INDEMNIFY SELLER AGAINST ALL LIABILITY, COST OR EXPENSE WHICH MAY BE SUSTAINED BY SELLER ON ACCOUNT OF ANY SUCH LOSS, DAMAGE OR INJURY.


8. Cancellation. An order, once placed with and accepted by us, can be cancelled only with our express consent and upon terms that will indemnify us against loss.


9. Returned Material. In no case are goods to be returned without first obtaining our permission. Material accepted for credit is subject to all transportation charges. Material built to order is not subject to return for credit under any circumstances. Goods must be securely packed to reach us without damage. Returns shall not be accepted if any other the following conditions are not met: the goods are currently a price listed product; the goods are in original factory-sealed full case cartons; and the products have a date code of one year or less. All returns may be subject to a re-stocking charge of up to 25% of the value of the return.


10. Patents. We agree to defend any suit brought against a Buyer so far as it is based on a claim that any product or any part thereof in the particular form sold by us infringes a United States patent, but only on condition that the Buyer shall promptly notify us in writing of any such suit, and shall give us full authority to defend the suit, and shall render to us (at our expense) whatever information and assistance may be reasonably required for such defense. Upon such conditions, we shall pay damages and costs, if any, awarded against the Buyer in such suit, and in case the product, or any part thereof, is held to infringe and the use of the product or part is enjoined, we shall have the option of procuring for the Buyer the right to continue using the product or part, replacing the same with a non-infringing product, modifying the same so as to avoid infringement, or removing it and refunding the purchase price. The foregoing states our entire liability for patent infringement. The Buyer shall indemnify us and hold us harmless from and against any expense or loss resulting from infringement of patents or trademarks arising from compliance with the Buyer’s designs or specifications.


11. Warranties. Seller warrants goods sold by it will be free from defects in material and workmanship for one (1) year following the date of sale. If any of the goods are found by Seller to be defective, such goods will, at Seller's option, be replaced or repaired at Seller's cost. The parties hereto expressly agree that Buyer's sole and exclusive remedy against the Seller shall be for the repair or replacement of defective goods as provided herein. (The sole purpose of the stipulated exclusive remedy shall be to provide buyer with free repair and replacement of defective goods in the manner provided herein. The exclusive remedy shall not bedeemed to have failed of its essential purpose so long as the Seller is willing and able to repair or replace defective goods in the prescribed manner). THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE NOT EXPRESSLY SET FORTH HEREIN, AND SELLER MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND. No affirmation of Seller, by words or action, other than as set forth in this language shall constitute a warranty. GOODS WHICH MAY BE SOLD BY SELLER BUT WHICH ARE NOT MANUFACTURED BY IT ARE NOT WARRANTED BY SELLER, BUT ARE SOLD ONLY WITH THE WARRANTIES IF ANY, OF THE ORIGINAL MANUFACTURERS THEREOF. This warranty does not cover labor or other costs or expenses to remove or install any defective, repaired or replaced goods. Seller's warranty does not apply to any goods which have been subjected to misuse, mishandling, misapplication, neglect (including but notlimited to improper maintenance), accident, improper installation, modification (including but not limited to unauthorized parts or attachments), or adjustment or repair performed by anyone other than Seller or one of Seller's authorized agents.


12. Export Control. Seller’s products, whether made by Seller or third parties, are subject to export controls by the U.S. government under the U.S. Export Administration Regulations (EAR) of the U.S. Department of Commerce, Bureau of Industry and Security (BIS) and are subject to the Foreign Assets Control Regulations of the U.S. Department of Treasury, Office of Foreign Assets Controls (OFAC). Seller’s obligations hereunder shall be at all times subject to the export control laws of the United States and conditioned on the prior receipt of all necessary government approvals. Seller requires Buyer to provide the acknowledgements, representations and warranties set forth below as a condition of this Agreement, and Buyer acknowledges, represents and warrants the following, all of which shall survive the termination of this Invoice:
    
    1. in connection with the sale, resale, purchase, receipt, or any other disposition of Seller goods, Buyer shall comply fully with all applicable U.S. and foreign laws related to export controls and economic sanctions, including, without limitation, the EAR and those regulations maintained by OFAC. Tothe extent required under applicable U.S. or foreign law, Buyer agrees that it shall not, without prior government authorization, sell, export, reexport, transfer, release, service, divert, or otherwise dispose of any products provided by Seller to Buyer directly or indirectly to or via any person, firm, entity, vessel, or country subject to (i) export licensing requirements or other government approval, (ii) economic sanctions or trade embargoes (including entities or persons in or acting on behalf of such countries), or (iii) any activity or use prohibited by the laws of the United States or other applicable jurisdiction, including chemical, biological, nuclear, or missile proliferation purposes, or for military use. Buyer understands that the goods may be subject to U.S. law and that reexport or diversion contrary to U.S. law is prohibited. Without limiting the generality of the foregoing, Buyer warrants that it will not provide any products to: (a) individuals or entities in any country subject to U.S. or multilateral embargo, which countries currently include, Cuba, Iran, Syria, North Korea, or Sudan; (b) individuals or entities who, with Buyer’s knowledge or reason to know, intend to sell the Items to individuals or entities in those countries; or (c) individuals, vessels, or entities on any list of specially designated nationals, denied parties, or similarly restricted entities maintained by the U.S. Government.
    
    
    2. Where Buyer has received goods from Seller in a country outside the United States, Buyer acknowledges that the goods may require a reexport license from the U.S. Government prior to being transferred to another party within or reexported from the country of receipt to another country, unless authorized under the terms of the U.S. export license. Buyer understands further that separate foreign export licenses also may be required to export the Items. Buyer shall obtain any required U.S. reexport license and non-U.S. export license PRIOR TO exporting, reexporting, or transferring the Items. Buyer represents and warrants that it shall adhere to all conditions of any required government licenses. Buyer will be responsible for handling all export clearance responsibilities related to the Items following Buyer’s initial receipt of goods from Seller, unless otherwise agreed in writing between Seller and Buyer.
    
    
    3. Neither Buyer nor Seller shall take or be required to take any action prohibited or penalized under U.S. or applicable foreig n law, including without limitation the U.S. antiboycott laws set forth in Part 760 of the EAR and Section 999 of the U.S. Internal Revenue Code. Any such action will constitute a material breach of this Agreement subject to the remedies set forth below or provided elsewhere in this Agreement.
    
    
    4. BUYER WILL RELEASE, DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES FROM AND AGAINST ANY LIABILITY, AND PAY ANY LOSS, DAMAGE, COST, EXPENSE OR FINE (INCLUDING, WITHOUT LIMITATION, LEGAL FEES AND DISBURSEMENTS, COURT COSTS AND THE COST OF APPELLATE PROCEEDINGS), ARISING OUT OF OR IN CONNECTION WITH A BREACH BY BUYER, OR ANY CLAIM OR ALLEGATION WHICH, IF TRUE, WOULD CONSTITUTE A BREACH BY BUYER, OF THIS ARTICLE OR BUYER'S REPRESENTATIONS AND WARRANTIES HEREIN.


13. Seller’s Right of Possession. Seller shall have the right, in addition to all others it may possess, at any time, for credit reasons or because of Buyer’s default or defaults, to withhold shipments, in whole or in part, and to recall goods in transit, retake same, and repossess all goods which may be stored with Seller for Buyer’s account, without the necessity of taking any other proceedings, and Buyer consents that all the merchandise so recalled, retaken, or repossessed shall become Seller’s absolute property, provided that Buyer is given full credit for it. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default of Buyer.


14. Controlling Provisions. These terms and conditions shall supersede any provisions, terms and conditions contained on any confirmation order, or other writing Buyer may give or receive, and the rights of the parties shall be governed exclusively by the provisions, terms and conditions of this order. Seller makes no representations or warranties concerning this order except such as are expressly contained in this order, and this order may not be changed or modified orally. This is not a firm offer.


15. Purchase Order. If this quotation is accepted and Buyer’s order form is used for the purpose, it is expressly understood and agreed that the terms and conditions set forth in this Agreement shall prevail insofar as the same may in any way conflict with the terms and conditions set forth in such order form, and the issuance of such order by Buyer shall be deemed to note Buyer’s assent to the foregoing.


16. No Waiver. Either Party may waive a breach of any part of this Agreement by the other, but such waiver shall not extend to any other part of the Agreement, noroperate to waive a similar breach in the future.


17. Delivery.
    
    1. The goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability. Seller shall not be liable for any delays, loss or damage in transit.
    
    
    2. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to SELLER'S LOCATION (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within fourteen (14) days of Seller's written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
    
    
    3. Seller may, in its sole discretion, without liability or penalty, 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.
    
    
    4. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licences 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).


18. Non-delivery
    
    1. The quantity of any installment of Goods as recorded by Seller on despatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
    
    
    2. 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 fourteen (14) days of the date when the Goods would in the ordinary course of events have been received.
    
    
    3. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.


19. Quantity. If Seller delivers to Buyer a quantity of Goods of up to five (5)% 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 price set forth in the Sales Confirmation adjusted pro rata.


20. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Ohio Uniform Commercial Code


21. Freight Policy. Buyer shall comply with Seller's International Freight Policy, a copy of which is available at https://www.oatey.com/ASSETS/DOCUMENTS/ITEMS/EN/Export order freight_policy.pdf and by emailing legal@oatey.com.


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


23. Construction. The terms "Seller" "our" and "we" in these document all refer to Oatey Supply Chain Services, Inc. or one of its affiliates.


24. 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.


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. 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 Ohio in each case located in the City of Cleveland and County of Cuyahoga, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.


27. Governing Law. ll matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.


28. 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: (a)in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.