STANDARD VENDOR PURCHASE ORDER TERMS AND CONDITIONS

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These Standard Vendor Purchase Order Terms and Conditions (“Terms and Conditions”) are incorporated into each mutually executed purchase order (“PO” and each PO together with these Terms and Conditions, an “Agreement”) agreed to between DI Supply LLC (“DI Supply”) and the other party identified on the front page of such PO (“Seller”, and with DI Supply collectively the “Parties” and each a “Party”) and shall apply to the purchase of those products set forth on such PO (“Products”) by DI Supply from Seller. 

1. OFFER; COMPLETE AGREEMENT.

a. Offer. A PO is DI Supply’s offer to purchase the Products set forth thereon in accordance with and subject to these Terms and Conditions. Seller’s acceptance is expressly limited to the provisions of the PO and these Terms and Conditions; any additional or different provisions in Seller’s acceptance and any of Seller’s general terms and conditions are void and of no force and effect. 

b. Integration. Each Agreement is the complete and exclusive agreement between Seller and DI Supply with respect to the subject matter thereof and supersedes all other promises, statements, quotations, proposals, acknowledgements, invoices, notices, click-through terms, or other documents or communications regarding such subject matter. In the event of any conflict between a PO and these Terms and Conditions, these Terms and Conditions shall prevail unless a PO expressly supersedes a given section (provided, however, that the fact alone that a provision appears in one of those documents but not in another shall not be deemed to be a conflict for purposes of this sentence). 

c. Non-Exclusivity. The relationship herein is not exclusive; nothing herein shall prevent DI Supply from arranging for a third party to also supply Products to DI Supply. Seller shall notify DI Supply prior to materially changing the design process or the construction of a Product or substitute a material or component of a Product different from that specified. 

d. Subcontractors. Seller shall not subcontract any performance hereunder without DI Supply’s prior written consent. Without limiting the foregoing, Seller shall remain responsible for the acts and omissions of its approved subcontractors, as if they were parties hereto.

2. PACKING AND SHIPPING. Unless otherwise provided on the face of a PO, the following provisions shall apply to all shipments of Products. Seller shall: (a) prepare all Products for shipment to prevent damage or deterioration; (b) defray all direct charges for preparation, packing, crating, or cartage unless separately stated in such PO; (c) consolidate into one shipment all Products to be forwarded on each day by the same means of transportation; (d) number and mark each container consecutively with applicable PO and part number; (e) indicate the container and PO number(s) on the applicable bill of lading; (f) place inside the No. 1 container, one copy of the packing sheet showing PO number(s), and attach also, one copy to the outside of the container; (g) request that any third party shipping company include on its invoice to DI Supply the appropriate PO number(s); (h) delete any declaration concerning value of the shipment except when tariff rating is dependent upon the released or declared value, in which event, value shall be released or declared at the maximum value for the lowest rating or rate and (i) comply with all applicable laws and regulations and instructions from DI Supply relating to shipping. 

3. DELIVERY.

a. Timing. Time is of the essence in the performance of each Agreement. Deliveries shall be strictly in accordance with the quantities and schedule specified in each PO. If at any time it appears that Seller may not meet such schedule, Seller shall immediately by verbal means (to be confirmed in writing) notify DI Supply of the reasons for and estimated duration of the delay and, if requested by DI Supply, make every effort to avoid or minimize the delay to the maximum extent possible (including the expenditure of premium time and shipping via air or other means of fast transportation). Any additional cost caused by these requirements shall be borne by Seller (unless the delay is caused by DI Supply). Delivery in whole or in part is not to be made prior to the established delivery date, unless agreed to in advance in writing by DI Supply. 

b. Remedies. In the event of any failure to timely deliver the correct volume of compliant Products under an Agreement: (i) DI Supply may, without liability and in addition to its other rights and remedies, terminate such Agreement or any part hereof without charge to DI Supply and Seller shall issue a full refund of any amounts already paid thereunder, and/or (ii) DI Supply may purchase substitute Products; and (iii) Seller will be responsible for any increase in DI Supply’s costs as well as any consequential damages and other losses suffered by DI Supply due to such failure to deliver in accordance with an Agreement. 

c. Shipping. Shipping terms shall be set forth in the PO. Notwithstanding the foregoing, and regardless of the FOB point or other shipping designation in the PO, Seller shall bear all risk of damage to or loss of Products while in transit to DI Supply’s designated delivery point. 

d. Changes. Notwithstanding anything set forth herein to the contrary, DI Supply shall have the right to issue written change notices relating to (i) the quantity of Products ordered, (ii) delivery schedules, (iii) place of inspection, acceptance or delivery, or (iv) method of shipment or packaging. If any such change causes an increase or decrease in the cost of or the time required for performance, an equitable adjustment may be proposed to the contract price or delivery schedule, or both. Any claim by Seller for adjustment under this clause shall be deemed waived unless asserted in writing within ten (10) days of receipt by Seller of notice of the change. Seller shall not suspend performance of a PO while DI Supply and Seller are in the process of making such changes and/or any related adjustments. No substitutions shall be made without the prior written approval of DI Supply.’’

e. Excess Delivery. If Product delivered is in excess of the amount on the PO, then DI Supply has the option of rejecting such excess shipment and charging all expenses incident thereto to Seller, or of accepting the same and settling therefor at DI Supply’s then-current price prevailing for similar goods on the date that the excess shipment is made known to DI Supply. 

4. TITLE AND RISK OF LOSS. Title to the Products shall, unless otherwise provided herein and subject to DI Supply’s rights of rejection and other remedies, pass from Seller to DI Supply at the same time risk of loss passes to DI Supply in accordance with the shipping terms set forth in the PO. Passing of title upon such delivery shall not constitute acceptance of the Products by DI Supply or relieve Seller of any of its obligations hereunder, including without limiting Seller’s responsibility for risk of damage or loss to Products during shipment as provided in Section 3(c) above. 

5. INVOICE AND PAYMENT. 

a. Pricing. Product pricing will be as set forth on the PO; such pricing may not be changed without mutual written agreement and, in any event, may not be changed after shipment is received. Notwithstanding the foregoing, if the parties have executed a DI Supply Pricing Supplement (a “Pricing Supplement”), then (i) Product pricing shall be at least as favorable to DI Supply as the pricing set forth in the Pricing Supplement and (ii) Seller shall comply with its supplementary commitments and obligations set forth in the Pricing Supplement, which shall be deemed to supplement each Agreement and control to the extent of any conflict with the provisions thereof.

b. Invoice. Unless otherwise specified, a separate invoice shall be issued for each Product shipment. No invoice shall be issued prior to shipment of Products. DI Supply reserves the right to delay payment until the Products have been accepted. No extra charges of any kind, including escalation, charges for transportation, fuel surcharges, packaging, insurance or any other cost whatsoever will be charged to, or paid by, DI Supply unless specifically agreed to by DI Supply in writing.

c. Payment Terms. Unless otherwise stated on a PO, DI Supply’s standard payment terms are 2% 15 days, net thirty (30) days. Payment due dates, including discount periods, will be computed from date of receipt of Products and correct invoice (whichever is later). Unless freight and other charges are itemized, any discount taken will be taken on the full amount of invoice. DI Supply has the right without loss of discount privileges, to pay invoices covering Products shipped in advance of the schedule on the normal maturity after the date specified for delivery. Any payment shall not constitute acceptance of the Products. To assure timely payment, invoices shall (i) be sent to billing address displayed on a PO (ii) show PO # and PO Line number, (iii) match PO description (iv) not exceed PO quantity (v) not exceed PO amount and (vi) where possible, avoid partial billing. 

d. Set-Off. Without prejudice to any other right or remedy it may have, DI Supply reserves the right to set-off, at any time, any amount owing to it by Seller, whether by way of credit, indemnification, or otherwise, against any amount payable by DI Supply to Seller.

e. Records. Seller agrees to maintain appropriate records regarding shipments in accordance with applicable law and any applicable DI Supply policies. Seller shall preserve all such records for a minimum of three (3) years from the date of entry of the applicable shipment, without additional reimbursement or compensation therefor. DI Supply shall have the right during the term of each Agreement and for a period of three (3) years thereafter to audit the relevant books and records of Seller regarding such records, as requested by or otherwise legally required of DI Supply.

f. Taxes. Seller shall separately itemize in the corresponding invoice for Products any U.S. federal, state, or local sales, use, or similar taxes that are required under applicable law to be collected from or paid by DI Supply in connection with its purchase, receipt, or use of the Products; provided, however, if DI Supply indicates that it is tax-exempt, Seller shall not seek to impose or charge any such taxes. Seller shall properly calculate, timely invoice, and timely remit any such taxes to the appropriate taxing authority. Seller shall provide DI Supply with the full benefit of any refunds or reductions in taxes and shall cooperate regarding any payments under protest and investigations and claims proceedings. Seller is solely responsible for, and shall indemnify and hold DI Supply harmless from and against: (i) any taxes, penalties, fines, assessments, interest, and judgments arising from Seller’s failure to properly calculate or timely invoice or remit any taxes; and (ii) all other taxes, duties, levies, tariffs, and surcharges, however designated or levied in any jurisdiction, associated with the Products, the design, manufacture, import, or export thereof, or Seller’s performance under an Agreement, including taxes based on Seller’s income, assets, operations, or personnel. DI Supply may deduct or withhold any amount required to be deducted or withheld in accordance with applicable law for remittance to the appropriate taxing authority. 

6. INSPECTION, ACCEPTANCE AND REJECTION. All Products are subject to final inspection and acceptance at DI Supply’s destination, notwithstanding any payment or any prior inspection at Seller’s location. Final inspection will be made within a reasonable time after receipt of Products. DI Supply’s failure to inspect any of the Products hereunder shall neither relieve Seller from responsibility for Products that are not in accordance with the requirements of this PO nor impose liability on DI Supply therefor. Any tender of Products which is nonconforming as to the quality or quantity or the delivery schedule shall be deemed a breach of this PO and DI Supply shall have the absolute right to reject such Products. DI Supply shall notify Seller of any such rejection and DI Supply shall have all the remedies as provided by law and this Agreement. In addition to DI Supply’s right to cancel or return non-conforming Products, DI Supply may recover all of its damages related to or arising from delivery that is not timely and/or provision of non-conforming Products, including inspection costs, manufacturing costs, damage to Products or other articles, damages caused by improper packing and loss of profits or other special or consequential damages that it may incur. Any inspection or other action by DI Supply under this Section shall not reduce or otherwise affect Seller’s obligations under an Agreement, and DI Supply shall have the right to conduct further inspections after Seller has carried out its remedial actions. 

7. WARRANTIES. Seller represents and warrants that: (a) all Products delivered under this PO shall conform to the requirements of this PO, shall be free from defects in material and workmanship, and shall be fit for their intended purposes; (b) all Products shall be provided free and clear of all liens and encumbrances; (c) all Products shall be new, merchantable, free from contamination, and of consistent high quality; (d) no Product nor its use does or will infringe, misappropriate or violate any intellectual property right; (e) it has the power and authority to enter into an Agreement and perform its obligations hereunder; (f) it is not bound by any agreement or obligation that may conflict with or impair its ability to perform its obligations under an Agreement; (g) it will obtain, maintain and comply with any permits, certifications, registrations, licenses, and approvals required for the Products and/or its performance hereunder and submit any reports required by a governmental body related to its performance hereunder; (h) it will provide and, if applicable, manufacture, Products hereunder using personnel of required skill, experience, and qualifications, in a professional and workmanlike manner, in accordance with applicable law and generally recognized industry standards, and shall devote adequate resources to meet its obligations; and (i) it has complied, and agrees to continue to comply, with all applicable laws in its design, manufacture, marketing, sale, and supply of the Products. These warranties shall survive any inspection, delivery, acceptance or payment by DI Supply. To the extent permitted by law, Seller hereby assigns, and shall take all other steps necessary to transfer or assign the rights and benefits of any representations, warranties, and obligations of a manufacturer or manufacturer’s agent, if any, to DI Supply, and shall otherwise allow DI Supply to assert claims directly under such representations, warranties, and obligations and, upon DI Supply’s request and at DI Supply expense, Seller shall assist DI Supply in exercising its rights under any such representation or warranty or obligations to the manufacturer or the manufacturer’s agent.

8. TERM; TERMINATION. 

a. Term. Each PO will have the term set forth thereon. If none is set forth, then each PO shall automatically expire upon DI Supply’s acceptance of the Products or termination hereunder, whichever occurs first, in each case subject to any without limiting DI Supply’s rights and remedies and Seller’s representations, warranties, and obligations under an Agreement. 

b. Termination for Convenience. At any time prior to shipment of corresponding Product under a PO, DI Supply may terminate the PO or any part thereof for its sole convenience upon notice to Seller, without termination charge or other liability. Notwithstanding the foregoing, if DI Supply and Seller have identified in a particular PO that the PO includes Custom Products (as defined in Exhibit A), Seller shall be entitled to request a reasonable termination charge consisting of Seller’s direct, out-of-pocket costs actually incurred in preparing to fulfill the Custom Products under the PO prior to the termination of such PO, which request must be submitted in writing to DI Supply within thirty (30) calendar days after Seller’s receipt of the termination and shall not exceed ten percent (10%) of the purchase price for the cancelled Custom Products under the PO.

c. Termination for Cause. DI Supply may terminate an Agreement or any part hereof for cause upon notice to Seller if Seller fails to comply with any of the provisions of such Agreement and such failure is not cured within ten (10) days after DI Supply provides notice thereof. Without limiting any other rights of termination that DI Supply may have, the following constitute grounds for termination for cause: late deliveries, deliveries of Products which are defective or which do not conform to this Agreement, and failure to provide DI Supply, upon request, of adequate assurances of future performance.

d. Effect of Termination. Termination of any PO will not automatically result in the termination of any other PO. Provisions of an Agreement that by their nature should apply survive their terms, will remain in force after any termination or expiration of an Agreement. Upon termination of an Agreement, if so requested by DI Supply, Seller will (i) deliver to DI Supply all wholly or partially completed Products, in exchange for prorated pricing based on the number and condition of such Products and/or (ii) accept return from DI Supply, at Seller’s shipping cost, of all non-conforming or rejected Products under the Agreement and issue a prompt refund of all amounts paid by DI Supply therefor. 

9. INDEMNIFICATION. 

a. Indemnity. Seller shall defend, indemnify and hold harmless DI Supply and its affiliates and its and their directors, officers, members, customers, agents, agents, employees and representatives from and against all suits, fines, judgements, settlements, damages, expenses (including reasonable attorneys’ fees), costs, losses, liabilities, penalties, claims, demands, and causes of action of whatever kind arising out of or relating to: (i) any Product, whether such claim arises in contract, tort (including negligence and strict product liability), or otherwise; (ii) Seller’s negligence or more culpable act or omission; (iii) any claim that any Product or its use infringes, misappropriates or violates any intellectual property right; or (iv) Seller’s breach of any representation, warranty, or other provision of an Agreement. 

b. Procedure. Immediately upon receipt from DI Supply of written notice of any suit or claim covered by Section 9(a) and upon written request by DI Supply, Seller shall assume the defense of the claim. In any event, Seller shall pay for or reimburse DI Supply for all judgments, awards, settlements, costs and expenses, including attorneys’ fees, arising out of the claim. Seller may not settle any claim without DI Supply’s consent. If Seller fails to diligently prosecute the defense of any such claim, then DI Supply may upon notice to Seller undertake to manage and control the defense and settlement of such claim at Seller’s expense.

10. LIMITATION OF LIABILITY. EXCEPT AS PROVIDED IN THIS SECTION, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER ARISING OUT OF OR RELATED TO AN AGREEMENT, INCLUDING LOST BUSINESS OR LOSS PROFITS, HOWEVER ARISING, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE. EXCEPT AS PROVIDED IN THIS SECTION, EACH PARTY’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF AND RELATED TO AN AGREEMENT SHALL NOT EXCEED THE TOTAL PURCHASE PRICE OF THE PRODUCTS ORDERED UNDER THE AGREEMENT. THE LIMITATIONS ON LIABILITY IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF THE NUMBER OF CLAIMS OR THE NATURE OF THE CAUSE OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY, OR OTHERWISE; PROVIDED, HOWEVER THE LIMITATIONS ON LIABILITY IN THIS SECTION SHALL NOT APPLY TO OR LIMIT SELLER’S LIABILITY IN ANY WAY FOR: (A) CREDITS, REIMBURSEMENTS, REFUNDS, OR OTHER AMOUNTS DUE AND OWING TO DI SUPPLY UNDER AN AGREEMENT; (B) DI SUPPLY’S COST OF COVER, RIGHT OF SUBSTITUTION, AND OTHER REMEDIES AVAILABLE AT LAW OR IN EQUITY IN THE EVENT THAT SELLER IS UNABLE OR UNWILLING TO PERFORM UNDER AN AGREEMENT; (C) FULFILLMENT OR BREACH OF SELLER’S WARRANTY, INDEMNIFICATION, CONFIDENTIALITY, OR INTELLECTUAL PROPERTY OBLIGATIONS UNDER AN AGREEMENT; (D) BODILY INJURY (INCLUDING DEATH) OR DAMAGE TO, LOSS, OR DESTRUCTION OF PROPERTY; OR (E) GROSS NEGLIGENCE, FRAUD, OR WILLFUL OR INTENTIONAL MISCONDUCT.

11. CONFIDENTIAL INFORMATION. 

a. To the extent that Seller receives Confidential Information concerning DI Supply, unless required to do so pursuant to applicable law (provided that Seller gives DI Supply prior notice thereof and reasonable assistance in obtaining confidential treatment therefor), Seller shall not use any Confidential Information except to fulfill its performance obligations under an Agreement and shall not disclose any Confidential Information to any third party without the express prior written consent of DI Supply. Seller acknowledges and agrees that all Confidential Information received from DI Supply, if any, remains solely DI Supply’s property and shall be returned (or destroyed, at DI Supply’s option) immediately upon written request of DI Supply. 

b. “Confidential Information” means any information received by Seller from DI Supply that is identified as proprietary or confidential or that a reasonable person would regard as proprietary or confidential, including trade secrets, the existence and terms of an Agreement, DI Supply’s business operations, strategies, customers, and specifications and all information concerning pricing (even anonymously) and quantity of Products purchased from Seller or technical or other proprietary or confidential commercial information obtained in the negotiation with Customer. Confidential Information shall not include information that is: (a) in the public domain without Seller’s breach hereof; (b) already known to the Seller on a non-confidential basis at the time of disclosure; or (c) rightfully obtained by the Seller on a non-confidential basis from a third party. 

c. The Parties agree that in the event of a breach of this section, money damages are not an adequate remedy; in such event, DI Supply will be entitled to, in addition to such other equitable and legal relief which may be available, the entry of equitable relief without posting bond or proving monetary damages. 

d. Seller acknowledges and agrees that no Products sold under an Agreement shall include the receipt, collection, processing, or storage of personally identifiable information or other sensitive DI Supply hotel, guest, or other data. Seller shall not request any such DI Supply data, shall notify DI Supply promptly upon receiving any such DI Supply data inadvertently, and shall take all steps necessary to securely return or destroy any such DI Supply data in accordance with DI Supply’s reasonable instructions. Seller further represents and warrants that it does and shall comply with all privacy, data protection, information security, and similar obligations under applicable laws and regulations.

12. INSURANCE. Seller shall maintain policies of liability insurance in commercially reasonable amounts in consideration of its obligations under each Agreement. Such policies of insurance shall not be cancelable except upon ten days’ written notice to DI Supply. Upon request, Seller shall furnish proof of such insurance to DI Supply. Seller’s insurance coverage shall in no way limit its indemnification obligations hereunder.

13. SAFETY. 

a. Environmental Safety. Seller warrants that the Products and any chemical substance or material listed or contained in any Product comply with, and are not adulterated or misbranded pursuant to, all applicable federal, state and local environmental, health and safety laws including without limitation the Toxic Substances Control Act, Occupational Safety and Health Act, Federal Insecticide Fungicide and Rodenticide Act, and Federal Hazardous Substances Act as amended.

b. Product Safety. Seller warrants that the Products comply with, and are not adulterated or misbranded pursuant to, any applicable sections of the U.S. Consumer Product Safety Act and Federal Food Drug and Cosmetic Act, each as amended. Seller will immediately notify DI Supply by verbal means (followed by written communications within twenty-four (24) hours) of any items which fail to comply with applicable rules or standards or which are subject to a recall, market withdrawal or similar action. If the Products supplied hereunder involve any risk of injury or death to persons or damage to property, Seller shall provide DI Supply with a written description of the nature and extent of such risk, including a description of any precautions which should be taken to minimize risk and any product safety data sheet produced by Seller. 

14. INTELLECTUAL PROPERTY. Exhibit A section 1 applies only to a PO that indicates that Seller will affix a DI Supply Trademark to a Product or Product packaging hereunder. Exhibit A section 2 applies only to a PO that indicates that Seller will provide custom Products to DI Supply. Otherwise, Exhibit A does not apply to a PO. 

15. MISCELLANEOUS. 

a. Amendment. Seller agrees that changes to these Terms and Conditions may be made from time to time by DI Supply and that any such changes shall thereafter govern any POs thereafter entered into between Seller and DI Supply. DI Supply shall, upon request, provide Seller with a copy of DI Supply’s then-current Terms and Conditions.

b. Assignment. Seller may not assign (whether by assignment, operation of law, change of control, merger or otherwise) any of its rights or obligations under any Agreement without the prior written consent of DI Supply, which consent may be withheld by DI Supply in DI Supply’s sole and absolute discretion. Any attempted assignment without such consent will be null and void.

c. Waiver. No waiver by either Party of any condition or breach hereof shall be effective unless in writing. No waiver of any condition or breach hereof in any one or more instances shall be deemed to be a further or continuing waiver of any such condition or breach in other instances. For the avoidance of doubt, any decision by a Party to waive (or not waive) any condition or breach hereof is made in its sole discretion. 

d. Severability. If any part of an Agreement is deemed to be unenforceable, invalid or in contravention of applicable law, then such provision shall be modified and enforced to the maximum extent permissible under applicable law, and the remainder of such Agreement shall remain in full force and effect. 

e. Publicity. Seller will not issue any press release or otherwise publicly announce or comment on any PO without DI Supply’s prior written consent. Except as expressly set forth in Exhibit A (if applicable), Seller will not use the name of DI Supply or any of its affiliates or any tradename, trademark or logo of DI Supply or any of its affiliates (or any name, mark or logo that is confusingly similar thereto). Except as expressly set forth in Exhibit A, no right, title or interest in or license to, any intellectual property rights of DI Supply (or its affiliates) is granted, conveyed or implied to Seller under this Agreement.

f. Governing Law. The laws of the State of Missouri, U.S.A. will govern each Agreement and any dispute between DI Supply and Seller related to the interpretation or enforcement thereof, without reference to any choice of law rules that would require the application of the laws of a different jurisdiction. The Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, which is hereby objected to and expressly excluded.

g. Arbitration. 

(i) Except as set forth in Section 11(c), all disputes, controversies, claims or differences which arise between the Parties out of or in connection to an Agreement, including the scope and applicability of this arbitration clause, shall be finally settled by binding arbitration by the American Arbitration Association (“AAA”) in St. Louis, MO under the Commercial Arbitration Rules of AAA by one arbitrator appointed by the AAA with experience in matters of commercial contracts. All proceedings before the arbitrator shall be conducted in the English language. All documents and papers submitted to the arbitrator shall be in the English language. 

(ii) The arbitration process, including selection of the arbitrators, exchanges of requests for information and the arbitration hearing shall be completed within one hundred and twenty (120) days following notice of arbitration. Discovery shall be allowed in any form agreed to by the Parties; provided, however, that if the Parties cannot agree as to a form of discovery, then: (i) each Party shall be limited no more than ten (10) requests for document production (including subparts or compound requests); and (ii) each Party shall be limited to two (2) depositions each with a maximum time limit that will not exceed four (4) hours.

(iii) The arbitration decision shall: (1) state the findings of material facts and the grounds for conclusions, (2) be final, conclusive and binding on the parties, and (3) be enforceable by any court of competent jurisdiction. The arbitrator shall be required to comply with, and its award shall be limited by, any express provisions of these Terms and Conditions relating to damages or the limitation thereof. All proceedings and any testimony, documents, communications and materials, whether written or oral, submitted to or generated by the parties to the arbitrator or to each other or in connection with arbitration shall be confidential. 

(iv) The arbitrator shall instruct the non-prevailing party to reimburse the prevailing party for all reasonable costs and expenses, including reasonable attorney’s fees, incurred by the prevailing party in such arbitration. If the arbitrator determines that there is not a prevailing party, then each party shall bear its own costs and expenses incurred by such party in connection with any such arbitration and the parties will share equally the fees and expenses of the arbitrator. 

h. Remedies. The rights and remedies under an Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.

i. Interpretation. For purposes of this Agreement, the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement. Except where the context otherwise requires, the word “or” is used in the inclusive sense (and/or). The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. Each Party agrees to take such actions, including executing and delivery documents, at the reasonable request of the other Party, as may be required to reflect and perfect the terms of this Agreement.

j. Third Party Beneficiaries. The indemnitees are express and intended as third party beneficiaries of Section 9, having the right to enforce such Section. Except as set forth in this section, nothing in this Agreement shall grant to or create in any person not a Party any right to any benefits hereunder, and no such person shall be entitled to sue either Party to this Agreement with respect thereto. 

k. Relationship; Notice. No party is an employee or agent of the other; the parties are independent contractors. DI Supply may place orders, notify Seller of cancellation or termination, open warranty claims, and handle other operational matters under an Agreement via email, online portal, electronic data interchange, or any other established or agreed upon method. All other notices required or permitted under an Agreement shall be in writing and shall be sufficiently given and deemed to have been received upon personal delivery or delivery by overnight courier or certified mail addressed to the parties at the addresses set forth in the PO. Notice of a change in address shall be given in writing to the other party and shall be effective upon receipt. 

EXHIBIT A

INTELLECTUAL PROPERTY

1. TRADEMARK LICENSE. This section 1 of this Exhibit A applies only to a PO that indicates that Seller will affix a DI Supply Trademark to a Product or Product packaging.

DI Supply hereby grants to Seller a non-exclusive, non-sublicensable, non-transferrable, limited, license during the term of such PO to use only the trademark(s), service mark(s), tradename(s), logo(s), or other indicia of source or origin owned or licensed by DI Supply (each a “Mark”) that is identified on the PO, only in the form directed by DI Supply, via the PO or other guidance provided to Seller (each a “Licensed Mark”) (and which DI Supply may revoke at any time), and solely to affix the same to Products or Product packaging to be delivered to DI Supply hereunder, subject to these Terms and Conditions and quality control standards as may be provided by DI Supply to Seller from time to time. Seller shall not register, attempt to register, or assert or attempt to obtain any interest in any Licensed Mark, any variation thereof, or any other Mark owned by DI Supply or any of its affiliates. Seller shall not do, nor shall permit to be done, any act that may prejudice, impair, or otherwise adversely affect any Licensed Mark or its goodwill. All use of any Licensed Mark and goodwill accrued due to such use anywhere shall be the sole and exclusive property of DI Supply. At the request and expense of DI Supply, Seller shall perform whatever acts DI Supply reasonably deems are necessary or desirable to preserve and protect, and to vest in DI Supply, ownership of and title to the same.

2. CUSTOM PRODUCTS. This section 2 of this Exhibit A applies only to a PO that indicates that Seller will provide custom Products (“Custom Products”) to DI Supply.

a. Specifications. Except as set forth in section 2(c) of this Exhibit A, Seller will manufacture the Custom Products consistent with specifications therefor provided by DI Supply (“Specifications”). 

b. Ownership. All right, title and interest in and to the Custom Product and Specifications (as well as any derivatives, modifications, discoveries, developments, improvements, or enhancements thereof or thereto), including all intellectual property rights therein, are, and shall remain, the exclusive property of DI Supply or its licensors, and DI Supply shall be the sole owner of any feedback, ideas or suggestions that Seller provides or otherwise generates about the Custom Product or Specifications; to the extent Seller owns or purports to own any right, title or interest in or to any such items (including any intellectual property rights therein), Seller hereby irrevocably assigns all such right, title and interest to DI Supply. DI Supply hereby grants to Seller, during the term of such PO, a nonexclusive, non-sublicensable license in the United States for Seller to use DI Supply’s intellectual property relating to the Custom Product, solely to manufacture such Custom Product hereunder for DI Supply’s exclusive benefit.

c. New Custom Product. To the extent that, pursuant to a PO, DI Supply requests that Seller develop a new Custom Product, for which DI Supply does not provide some or all of the Specifications (“New Custom Product”), the Parties agree that any element of any New Custom Product (including designs or other specifications therefor) that is a tangible work of expression that is created by or on behalf of Seller and that is within the scope of works that may be a “work for hire” within the meaning thereof under the Copyright Act of 1976, as amended, 17 U.S.C. §101, et. seq. (the “Copyright Act”) is or has been specially commissioned by DI Supply and shall be a “work for hire” for the sole benefit of DI Supply and, therefore, all copyrights in and to each such New Custom Product element shall be solely owned by DI Supply. As to any element of a New Custom Product that is not a “work made for hire” within the meaning of the Copyright Act for the sole benefit of DI Supply, and as to any other right, title or interest in or to any New Custom Product, including any and all related works of authorship, ideas, inventions and other intellectual property rights in, to or otherwise related to the design, manufacture, having manufactured or use thereof, that are conceived, created, or otherwise developed by or on behalf of Seller, Seller agrees to assign and does hereby assign to DI Supply all worldwide right, title and interest in, to and under the same, such that DI Supply is and shall be the exclusive owner of all intellectual property rights of any kind embodied therein or appurtenant thereto. 

d. Assignable Elements. Seller shall not, and agrees that it will not, incorporate into any New Custom Product any elements that are not and will not be exclusively owned by or assigned to DI Supply as provided in the preceding subpart (c), unless and solely to the extent specified in the applicable PO, and that no New Custom Product or use, manufacture or commercialization thereof, will include or embody any intellectual property rights owned or purported to be owned by Seller or any of its affiliates or suppliers that are not and will not be so exclusively owned by or assigned to DI Supply, unless and solely to the extent specified in the applicable PO. For any elements not so owned by or assigned to DI Supply, Seller agrees to grant, and does hereby grant, to DI Supply a non-exclusive, freely transferable and sublicensable, perpetual and irrevocable, royalty-free, worldwide license under, in, and to such elements and all associated intellectual property rights of Seller, its affiliates, and its suppliers, without additional payment obligations or restrictions of any kind.

e. Execution. Seller agrees to and does hereby irrevocably appoint DI Supply as Seller’s attorney-in-fact with full power of substitution in Seller’s name, place and stead, in any and all capacities, to execute, verify, acknowledge and deliver any document necessary or appropriate to effectuate the provisions of this section 2 of this Exhibit A, and to do any act necessary to effectuate the purposes of this section 2 of this Exhibit A. Such appointment is and will be a power coupled with an interest and is therefore irrevocable. 

f. Inspection. Throughout the term of an Agreement, DI Supply shall have the right, upon twenty-four (24) hours’ advance notice and during normal business hours, to inspect the production facility where manufacture, storage, packaging and shipping of Custom Products is occurring and any related records and documentation. The purposes of the inspection will be to allow DI Supply to ensure compliance with the terms hereof.