General Terms & Conditions of Purchase

DEFINITIONS

The following expressions shall have the following meanings:

“Affiliate” shall mean (i) any entity of which Purchaser shall own or control at least 25% of the voting interests; or (ii) any entity controlled by, or under common control with, the Purchaser.

“Agreement” shall mean any or all Orders together with these General Terms & Conditions of Purchase.

“Goods” shall mean any item of whatever nature or service, including design, as described in the Order or as otherwise agreed to be supplied by Supplier.

“Order” shall mean an order, including any subsequent amendments thereto, placed by Purchaser with Supplier for the supply of the Goods.

“Party” means Purchaser or Supplier (together, the “Parties”).

“Purchaser” shall mean RES America Construction Inc. and/or (as the case may be) one or more of its Affiliates.

“Specification” shall mean the standards, technical descriptions (if any), drawings, designs, samples, packing or other specifications or representations of the Goods contained or referenced in an Order as approved, adopted or made by Purchaser.

“Supplier” shall mean the person, firm or company with whom the Order is placed and who will supply the Goods which are the subject of the Order.

GENERAL

Terms and Conditions Generally. These terms and conditions apply in preference to and supersede any terms and conditions referred to, offered or relied upon by Supplier whether in negotiation or at any stage in the dealings between Purchaser and Supplier with reference to the Goods to which this Agreement relates. Without prejudice to the generality of the foregoing, Purchaser will not be bound by any standard or printed terms furnished by Supplier in any of its documents unless Supplier specifically states, in writing, separately and in a font distinguishable from any boilerplate, that such terms specifically apply to Purchaser specifically and that Purchaser acknowledges such notification in writing. Except as set forth herein, nothing herein shall deprive Purchaser from its rights under statutory or common law. Any clause required being included in an order of this type by any federal, state or local law, regulation, ordinance or administrative rule having the effect of law shall be deemed to be incorporated herein.

WRITING REQUIRED. NO RESPONSIBILITY WILL BE ACCEPTED BY PURCHASER FOR ANY ORDER UNLESS CONFIRMED IN WRITING.

VARIATIONS. PURCHASER WILL NOT ACCEPT RESPONSIBILITY FOR, OR RECOGNIZE ANY VARIATION OF, AN ORDER UNLESS SUCH VARIATION IS APPROVED BY PURCHASER IN WRITING.

ORDERS

Specifications. All Goods furnished in any way to Purchaser shall be deemed to constitute a certification by Supplier that such Goods strictly conform to the Specifications. In addition, the Goods must comply with the accepted United States standards for such Goods (if any) and/or any relevant trade standards and regulations. Supplier shall not alter or amend in any way the Specifications of the Goods without the prior written approval of Purchaser.

Cancellation. Purchaser reserves the right to cancel an Order by giving written notice to Supplier, provided such notice is given not less than fourteen (14) days before the date of delivery specified in the Order. Purchaser acknowledges that cancellation may cause loss and expense to Supplier; therefore, provided that Supplier can establish to the satisfaction of Purchaser that it has suffered loss and expense, Purchaser will indemnify Supplier up to and including the price of the actual Order cancelled less the resale proceeds received by Supplier or the salvage value thereof if not resalable. Such indemnity shall constitute Purchaser’s sole liability upon cancellation.

Quality Assurance. Supplier is required to operate to a quality system which ensures that the quality of the Goods to be provided conforms to the Specifications. Supplier warrants it has the necessary facilities and expertise to carry out the requirements of the Order, and hereby grants to Purchaser the right to inspect and/or otherwise investigate Supplier’s abilities and premises. Purchaser shall further have the right to make inspections and tests of the Goods in the process of manufacture, fabrication, installation, in transit and/or storage, including the review of the quality control methods and procedures in effect. Should Purchaser determine, in its sole discretion, that the facilities are inadequate or that improper materials or techniques of production, handling, installation, shipment, storage, etc. are being used, it may cancel an Order in whole or in part, stop or reject all or part of the Goods, or take whatever action it deems appropriate to protect its interests. It is specifically understood by Supplier that Purchaser is not under any obligation to make any of the inspections and tests referred to herein, and no inspection or test which Purchaser shall have made in any way relieves Supplier from its responsibilities under any Order. It is further understood by Supplier that the aforementioned quality assurance steps are necessary for Purchaser to retain its ISO 9000 status and that Supplier’s compliance with the requirements of this paragraph is paramount.

Obsolescence and Spare Parts. Supplier shall promptly notify Purchaser if the Goods, or parts thereof, are scheduled to become obsolete within twelve (12) months of date of delivery specified in the Order. Notwithstanding any such obsolescence, Supplier warrants to provide at a fair price to be agreed between Supplier and Purchaser spare parts for a period of five (5) years or such lengths of time as may prescribed by any proper government authority after the date of delivery.

Unconditional Lien Release. Supplier agrees to execute Purchaser’s standard “Unconditional Waiver and Release upon Progress Payment” and “Unconditional Waiver and Release upon Final Payment” documentation with respect to any mechanics’ lien, stop notice, or bond right Supplier has on the project. The timing for execution of each waiver shall be as defined in the respective documents.

Anticipatory Repudiation. If Supplier repudiates an Order with respect to performance not yet due, Purchaser may immediately cancel the Order upon written notice to Supplier and immediately thereafter resort to any remedy for Supplier’s breach available to Purchaser under this Agreement or applicable law.

PRICING & PAYMENT

Pricing. The price(s) stated in the Order is/are firm and complete in their entirety for all goods and services to be provided under the Order inclusive of Import Taxes, and is/are not subject to variation unless otherwise agreed by Purchaser in writing. Supplier expressly agrees that Purchaser shall not be liable to Supplier for any import taxes, customs, duties, or tariffs of any kind imposed by any governmental authority on the importation of the Goods, or any component thereof, into the United States (together “Import Taxes”), and that the price(s) stated in the Order shall not be increased for any Import Taxes that may be imposed on Supplier. Supplier shall be subject to deduction or setoff by Purchaser or its Affiliates by reason of any claim arising out of this Agreement or any other transaction with Supplier. The price of an Order is to include all royalties or other charges which may be claimed or required to be paid in respect of any licenses to any patents, copyrights, trademarks or other intellectual property (together, “Intellectual Property Rights”) necessary to enable Purchaser (and Purchaser’s successors and assigns) freely to employ and use any Goods supplied, whether or not such Good is specifically designated in the quotation as subject to such Intellectual Property Rights.

Price Protection. Supplier warrants that the price for the Goods purchased hereunder is as favorable as those prices extended to any other customer for the same or similar Goods in similar quantities.

In the event Supplier reduces its price for the Goods during the term of any Order, Supplier agrees to reduce the price herein correspondingly. Supplier warrants that prices shown in an Order shall be complete, and no additional charges of any type shall be added without Purchaser’s express written consent.

Invoices/Payment Terms. Supplier shall submit its invoices in form satisfactory to and as may be required by Purchaser. Invoices may be submitted to cover deliveries in whole or in part of the Goods covering an Order. Supplier recognizes that all or some of the Goods may form a part of work being performed by Purchaser under a contract with the Purchaser’s client, and invoices for deliveries made by Supplier may be incorporated by Purchaser into Purchaser’s overall billing under such contract. When discounts are offered by Supplier for prompt payments, the discount period shall be computed starting with the later of (a) the date of acceptance by Purchaser of the Goods, or (b) the date the invoice therefore was approved by Purchaser. Purchaser’s payment for all or any part of the purchase price shall not constitute a waiver of any of Purchaser’s rights hereunder or at law.

DELIVERY & ACCEPTANCE

Packaging. All Goods must be securely packed free of charge in such manner as to reach Purchaser in good condition. Supplier shall fully and accurately describe the Goods on all stickers, labels, invoices, packing and delivery notes and in any descriptions which appear on any container or other matter covering, containing or protecting the Goods. Supplier shall submit with the Goods full instructions for use and clear warnings with respect to anything which may reasonably be done or not done in relation to the Goods and which act or omission could render them unsafe. Purchaser will not accept any charge in respect of packing cases and other packing materials and will not be responsible for returning, or for the cost of returning, any such packing cases and materials. THE ORDER NUMBER WILL BE INDICATED ON ALL INVOICES, CORRESPONDENCE AND PACKING SLIPS.

Consignment/Advice Notes. A consignment/advice note bearing the full Order number must accompany the Goods to the delivery address.

Material Safety Data Sheets. Supplier shall provide a legible copy of any Material Safety Data Sheets (“MSDS”) that are applicable to the Goods two (2) weeks prior to delivery of the Goods. The information provided shall be the most recent copy of the MSDS as published by the original material manufacturer.

OSHA Regulations. In compliance with regulations promulgated by the Occupational Safety and Health Administration, all information relevant to the safe use of the Goods shall be provided to the site manager/supervisor at the point of delivery specified in an Order.

Shipping. All shipments of Goods shall be forwarded in accordance with Purchaser’s instructions, and unless specified otherwise in an Order, shall be F.O.B. at the point designated by Purchaser. The cost of freight and/or other shipping costs are included in the prices stated in an Order, unless otherwise provided in the terms hereof. All shipments shall be adequately insured with Purchaser’s interests, if any, fully covered thereby. The risk of loss in the shipping of the Goods covered by an Order shall remain with Supplier until delivered and unloaded to the delivery address provided in the Order.

Delivery. It is acknowledged that in respect of the delivery, time is of the essence. Supplier shall comply in all respects with the delivery date(s) specified in an Order. If for any reason Supplier is unable to do so, Supplier must notify Purchaser promptly in writing, although such notification shall not prejudice Purchaser’s rights and Supplier’s liabilities in respect of such default. Purchaser reserves the right to refuse delivery of any such part or portion of the Goods if they are supplied before the delivery date(s) specified in an Order. If such right is exercised by Purchaser, all charges relating therefore shall be the responsibility of Supplier. Supplier will fax/e-mail to Purchaser’s receiving department all packing slips in advance of Supplier’s next delivery.

Supplier will give Purchaser a minimum of 24 hours’ advance notice for standard deliveries and 72 hours’ advance notice for deliveries requiring permits. Shipments will not be accepted later than 2:00 pm, Monday through Friday, and will not be accepted on the weekends. Personal Protective Equipment (PPE); to include hard hat, safety shoes, eye protection, and reflective vest is required of all delivery personnel prior to entering site. Drivers will not be allowed to exit their vehicle without proper PPE.

Acceptance of Goods. The Goods shall be subject to Purchaser’s inspection and acceptance. THE GOODS SHALL NOT BE CONSIDERED ACCEPTED BY PURCHASER UNLESS AND UNTIL THE EARLIER TO OCCUR OF THE FOLLOWING: (A) SUPPLIER RECEIVES A WRITTEN NOTICE STATING THAT THE GOODS HAVE BEEN ACCEPTED BY PURCHASER OR (B) NINETY (90) DAYS HAVE PASSED SINCE PURCHASER RECEIVED THE GOODS AT PURCHASER’S DELIVERY LOCATION.

Any acceptance by Purchaser of the Goods covered by an Order shall be without prejudice to any rights that Purchaser may have against Supplier.

Rejection of Goods. The Goods shall be new and unused and free of defects in design, workmanship, and materials. The Goods shall be in every respect equal to the description or samples supplied to Purchaser and to previous supplies (if any). If the Goods are not equal to the Specifications, Purchaser may reject the Goods within ninety (90) days of receipt of the Goods by written notice to Supplier (which notice shall not fail to be effective for lack of particularity in description of defects), in which case the Goods shall be held at Supplier’s risk, shall be returnable at Supplier’s expense, and shall not be deemed accepted, approved or delivered. Instead of rejecting any nonconforming Goods, Purchaser may elect to accept the Goods and make such Goods fit for their purpose, in which case Supplier shall be debited with any cost thereof.

Non-Delivery. If Supplier does not deliver the Goods, or any part thereof, within the date range, or if no range is specified, by the delivery date(s) specified in an Order, Purchaser shall be entitled to terminate the Order, purchase replacement Goods of the same or similar description (“Replacement Goods”) to make good such default, and recover from Supplier the amount by which the cost of purchasing the Replacement Goods exceeds the price which would have been payable to Supplier in respect of the Goods replaced, without prejudice to any other remedy Purchaser may have under this Agreement or applicable law.

Excess Quantities. Any Goods delivered in excess of the amount stated in an Order and not accepted by Purchaser shall remain the responsibility and risk of Supplier and must be removed by Supplier at Supplier’s own expense. Purchaser shall take reasonable steps to notify Supplier of such excess.

Unused Goods. Purchaser may return unused Goods to Supplier within twenty-four (24) months of receipt by Purchaser for cash or credit, at Purchaser’s option.

Title of Goods. Title to the Goods shall pass to Purchaser when the Goods are delivered to Purchaser at the delivery address stipulated on the Order and accepted by Purchaser. Until such delivery and acceptance is made, Title to the Goods shall remain with Supplier, and the Goods shall remain at Supplier’s risk in all respects.

WARRANTIES

General Warranty. PURCHASER SHALL HAVE THE BENEFIT OF ALL WARRANTIES IMPLIED AT LAW AND ALL EXPRESS WARRANTIES MADE BY SUPPLIER HEREUNDER. Supplier’s warranty shall run to Purchaser, its successors, assigns, customers and users of the Goods purchased hereunder. Supplier expressly warrants that all Goods furnished shall conform to all Specifications.

Warranty of Merchantability. Supplier expressly warrants that all Goods will be merchantable and will be safe and appropriate for the purpose for which Goods of such kind are normally used. Further, Supplier expressly warrants that the Goods furnished hereunder will be free of defects in design, materials, assembly and workmanship, new, unused and undamaged when delivered until the earlier of: (a) twenty- four (24) months from date of acceptance by Purchaser, or (b) thirty (30) months from date of receipt by Purchaser.

Warranty of Fitness for a Particular Purpose. If Supplier knows or has reason to know the particular purpose for which Purchaser intends to use the Goods, Supplier expressly warrants that such Goods will be fit for such particular purpose.

Compliance with Laws. Supplier expressly warrants that all Goods shall comply with all applicable federal, state and local laws, orders and regulations. Supplier shall obtain all permits necessary for the performance of each Order.

Title. Supplier warrants that it has good title to the Goods supplied hereunder and that all such Goods will be delivered free of any and all claims, demands, liens, security interests or any other encumbrances. In the event of a breach of this warranty, Purchaser shall promptly notify Supplier, and at Supplier’s expense, Supplier will defend the title to any affected Goods and, if unsuccessful, will promptly provide to Purchaser at no cost, replacement Goods which comply with this warranty and the remainder of this Agreement.

Remedies for Supplier’s Breach of Warranty. At Purchaser’s option, in the event any Goods supplied hereunder fail to comply with any express or implied warranty and Supplier is so notified by Purchaser in writing within twenty-four (24) months from the date of acceptance of such Goods by Purchaser, Supplier will correct such nonconformity by repair or replacement of the defective part or parts at its factory or repair facility, provided the Goods in question have been stored, installed, operated and maintained in accordance with Supplier’s previously provided recommendations, if possible. Supplier shall be responsible for all necessary freight costs, to and from the jobsite, for warranty covered claims. In the event Supplier fails promptly to correct defects in or replace such nonconforming Goods, Purchaser may at its option either (a) make such corrections or replace such Goods and charge Supplier for the cost incurred in so doing, or (b) reject the nonconforming Goods and hold Supplier in default.

INSOLVENCY / DEFAULT

Fiscal Responsibility/Bonds. Supplier warrants that it is sufficiently fiscally responsible to provide the Goods in accordance with the terms and conditions of all Orders. Should Supplier’s financial condition change in any material manner from its condition at the time of entering into an Order, it shall immediately notify Purchaser. Promptly upon request, Supplier shall provide Purchaser with copies of certified or other financial statements and such other financial and credit information that Purchaser may reasonably request. Purchaser reserves the right to require Supplier to furnish performance and payment bonds to assure Supplier’s performance under an Order in such forms and with such sureties as may be satisfactory to Purchaser.

Bankruptcy/Insolvency. If Supplier shall file, or have filed against it, bankruptcy proceedings, become insolvent, have a receiving order made against it, commence procedures to be wound up (such procedures not constituting a voluntary winding up for the purpose of reconstruction or amalgamation), or if a receiver shall be appointed in respect of whole or any part of the undertaking and assets of Supplier, Supplier shall be in default of this Agreement. Upon any such default, Purchaser shall be at liberty either: (a) to terminate this Agreement and all Orders forthwith by written notice to Supplier (or to the receiver, or liquidator, or to any person in whom this Agreement may become vested), or (b) to give such receiver, liquidator or other person the opportunity of carrying out any Order which has not been filled, subject to such person providing a guarantee for the due and faithful performance of such Order.

Default. Supplier shall be in default of this Agreement upon breach of any section or subsection of the terms and conditions of this Agreement. Upon prompt notice by Purchaser to Supplier, Purchaser may undertake any of the remedies provided to Purchaser in the specific section or subsection under which the default occurred or otherwise available to Purchaser under this Agreement or applicable law; provided that the exercise by Purchaser of any remedy shall not preclude its exercise of any other available remedies, and all remedies shall be cumulative. In addition to all other remedies available to Purchaser under this Agreement and applicable law, Purchaser’s remedies for default shall include any actual damages to Purchaser arising from the breach, together with any incidental (including expenses reasonably incurred in inspection, receipt, transportation and care and custody of Goods rightfully rejected, any commercially reasonable charges, expenses or commissions in connection with effecting cover and any other reasonable expense incident to the delay or other breach) and consequential damages (including any loss resulting from general or particular requirements and needs of which Supplier, at the time of contracting, had reason to know and which could not reasonably be prevented by cover or otherwise, and injury to person or property proximately resulting from any breach of any warranty). Supplier will be responsible for all attorneys’ fees and other expenses of litigation or arbitration arising from Supplier’s default.

MISCELLANEOUS

Indemnity. In addition to all warranties and conditions implied by law, Supplier shall indemnify, defend and hold harmless Purchaser, its employees, agents, customers and invitees against all claims, costs, losses, damages (whether direct or consequential), injuries, liabilities, demands, obligations, lost, reduced, or recaptured tax credits, fines, penalties, assessments, interest and causes of action, expenses, including reasonable attorney’s fees and costs, which Purchaser may incur arising from or relating to (a) Supplier’s breach of any of its obligations under this Agreement, including any Order, (b) defects or faults in any of the Goods covered by any Order, (c) actual or alleged infringements of Intellectual Property Rights arising by reason of the use of the Goods covered by any Order, and if applicable to any Goods being supplied under the Inflation Reduction Act (d) any claims, including those arising out of co-employment or joint employment, by employees, clients, subcontractors, suppliers, creditors, or other persons in a relationship with Supplier, except as otherwise prohibited by statue or law, or (e) any failure to satisfy the Prevailing Wage and Apprenticeship Requirements or the Domestic Content Requirements (such indemnification under this sub-section (e) specifically includes payments made to qualify for any credit multiplier under section 45(b)(7)(B)(i)(II) or 45(b)(8)(D)(i)(II) or, if due to intentional disregard by Contractor or its Subcontractors (or so forth), 45(b)(7)(B)(iii) or 45(b)(8)(D)(iii) of the Code (including rules similar thereto under section 48(a)(10), 48(a)(11), 45Y(g)(9), 45Y(g)(10), 48E(d)(3), or 48E(d)(4)).

Insurance. Supplier shall provide adequate insurance covering liability to third parties and to its employees engaged in the performance of this Agreement. Supplier’s general liability insurance shall be in effect, and be of broad form, including but not limited to coverage for completed operations (products liability), blanket contractual liability, and contractors’ protective liability. Supplier’s workers’ compensation insurance shall be secured and conform to applicable state laws and the federal Longshoremen’s and Harbor Workers’ Compensation Act. Supplier shall carry current and valid commercial automobile liability insurance covering any and all vehicles. Goods in the process of manufacture, fabrication, transit, installation and/or in storage shall also be adequately insured. Policies of insurance shall be in such amounts and forms, and be with such insurers, as are satisfactory to Purchaser, with the interests of Supplier and Purchaser adequately covered.

Assignment. Supplier shall not assign this Agreement, in whole or in part, or any of Supplier’s rights, interests or duties under this Agreement, without prior written consent of Purchaser, which Purchaser can withhold, condition or delay in its sole and absolute discretion. Purchaser may assign this contract, in whole or in part, and any of Purchaser’s rights, interests or duties under this Agreement, upon written notice to Supplier.

Prevailing Wage and Apprenticeship Requirements.   If applicable to any Goods being supplied under the Inflation Reduction Act, Supplier shall comply (and shall cause its subcontractors (and their sub-subcontractors and so forth) to comply) with the prevailing wage and apprenticeship requirements under (a) section 45(b)(7) or 48(a)(10) of the Code (including rules similar thereto under section 45Y(g)(9) or 48E(d)(3) of the Code), with respect to prevailing wage requirements and (b) section 45(b)(8) of the Code (including rules similar thereto under section 45Y(g)(10), 48(a)(11) or 48E(d)(4) of the Code), with respect to apprenticeship requirements, including any applicable exception in section 45(b)(8)(D) of the Code (the “Prevailing Wage and Apprenticeship Requirements”) as they apply to the work to be provided under the Order and shall cooperate with Purchaser in connection therewith. If necessary, Supplier shall retroactively adjust, and cause each subcontractor (and their sub-subcontractors and so forth) to retroactively adjust, the wages of each affected laborer or mechanic, along with the interest required by the Code, to comply with the Prevailing Wage and Apprenticeship Requirements. In furtherance of the preceding, Supplier agrees to provide Purchaser with reasonable documentation, certifications and/or records maintained or prepared by Supplier (and any subcontractor (and their sub-subcontractors and so forth)) to support Purchaser’s efforts to demonstrate that the work to be provided under the Order meets the Prevailing Wage and Apprenticeship Requirements that are applicable to the work to be provided under the Order, taking into account any applicable IRS guidance, which reporting shall be provided weekly and upon any reasonable request from Purchaser.  On a weekly basis and upon any reasonable request from Purchaser, Supplier agrees to provide Purchaser with certified payroll reports in Excel and PDF format in the form requested by Purchaser. Supplier shall cooperate with Purchaser in the provision or filing with the IRS, or in connection with any IRS audit or related proceedings, of information, registration or other requirements associated with the satisfaction of the Prevailing Wage and Apprenticeship Requirements or section 6417 or 6418 of the Code. Supplier shall keep and maintain, for a period of fifteen (15) years, detailed and accurate records with respect to Supplier’s and its subcontractors’ (and their sub-subcontractors’ and so forth) performance of the work to be provided under the Order in support of Purchaser’s efforts to satisfy the Prevailing Wage and Apprenticeship Requirements, including certified payrolls for laborers and mechanics employed in the performance of the work to be provided under the Order and all records reflecting which laborers and mechanics are “qualified apprentices” (under the Prevailing Wage and Apprenticeship Requirements) or journey workers and the hours performed by each. The price(s) stated in the Order includes Supplier compliance with and cost impacts from the Prevailing Wage and Apprenticeship Requirements. For purposes of this paragraph, the “Code” means the U.S. Internal Revenue Code of 1986, as amended. This paragraph shall survive the expiration or earlier termination of this Agreement.

Domestic Content Requirements. If applicable to any Goods being supplied under the Inflation Reduction Act, Supplier shall comply (and shall cause its subcontractors (and their sub-subcontractors and so forth) to comply) with the domestic content requirements under section 45(b)(9) or 45Y(g)(11) of the Code (including rules similar thereto under sections 48(a)(12) or 48E(a)(3)(B) of the Code), excluding the exceptions in section 45(b)(10)(D) and 45Y(g)(12)(D) of the Code (or any rules similar thereto under section 48(a)(13) or 48E(d)(5)) (the “Domestic Content Requirements”) as they apply to the Goods and shall cooperate with Purchaser in connection therewith. In furtherance of the preceding, Supplier agrees to provide Purchaser with reasonable documentation, certifications and/or records maintained or prepared by Supplier (and any subcontractor (and their sub-subcontractors and so forth)) to support Purchaser’s efforts to demonstrate that the Goods meets the Domestic Content Requirements that are applicable to the Goods, taking into account any applicable IRS guidance, which reporting shall be provided monthly and upon any reasonable request from Purchaser. Supplier shall cooperate with Purchaser in the provision or filing with the IRS, or in connection with any IRS audit or related proceedings, of information, registration or other requirements associated with the satisfaction of the Domestic Content Requirements or section 6417 or 6418 of the Code. Supplier shall keep and maintain, for a period of fifteen (15) years, detailed and accurate records with respect to Supplier’s and its subcontractors’ (and their sub-subcontractors’ and so forth) performance of the work to be provided under the Order in support of Purchaser’s efforts to satisfy the Domestic Content Requirements, including any certificates received from any producer, manufacturer or miner of steel, iron or manufactured subcomponents, components or products utilized in the performance of the work to be provided under the Order. The price(s) stated in the Order includes Supplier compliance with and cost impacts from the Domestic Content Requirements. For purposes of this paragraph, the “Code” means the U.S. Internal Revenue Code of 1986, as amended. This paragraph shall survive the expiration or earlier termination of this Agreement.

Taxes. All taxes, duties, imposts, fees or charges of any governmental body, however denominated (“Taxes”), which prior to the acceptance of the Goods, shall be levied, imposed or increased by any governmental authority, on or measured by any of the Goods remaining unshipped or unaccepted, or on or measured by any of the raw materials used in the manufacture of the Goods, or in the manufacture of the containers for the Goods, or the processing, purchase, sale, holding for sale, distribution, dealing in, transportation, use or handling of any of the Goods or such raw materials, shall be paid or borne by Seller. All Taxes shall be shown as separate items on all Suppliers’ invoices to Purchaser. If such Taxes are paid or borne by Purchaser, Seller shall reimburse Purchaser for such Taxes. Any Taxes which Purchaser shall be finally relieved from paying or which shall later be refunded to Purchaser at any time and for any cause shall be refunded to Seller by Purchaser after Purchaser has deducted all expenses incurred by Purchaser in preventing collection of the Taxes or securing the refund thereof. Purchaser shall not, however, be under any obligation to contest the validity of any Taxes or to prosecute any claims for refunds. Supplier shall indemnify, defend and hold Purchaser harmless from and against all liabilities for Taxes.

Restriction of Sales. In case of any Goods which have been designed by and manufactured by Supplier in accordance with Specifications supplied by Purchaser, Supplier agrees not to sell such Goods to any third party except with the permission of Purchaser in writing. Supplier further agrees not to manufacture quantities in excess of those set forth in any Order. Such Specifications will remain the property of Purchaser and shall be returned by Supplier with any and all copies thereof to Purchaser on demand.

Confidentiality. This Agreement and all details pertaining thereto shall be treated as confidential between Purchaser and Supplier and shall not be disclosed by one Party to any third party nor used by one Party for publicity/promotional purposes, in each case without the prior written consent of the other Party.

Compliance with Laws. Supplier shall comply fully with all federal, state and local laws and ordinances and with all regulations, orders and rulings hereunder (together, “Laws”) which may in any way affect or be applicable to this Agreement. Supplier shall be responsible for and shall indemnify, defend and hold harmless Purchaser from and against all damages and liability which may arise out of a failure by Supplier to comply with said Laws. By acceptance of this Agreement, Supplier warrants that all Goods were produced in accordance with the Fair Labor Standards Act of 1938, as amended. Supplier warrants that it is, and will be, in full compliance and will be bound by the equal employment opportunity Laws, including Executive Order Number 11246, or by the provisions relating thereto in any applicable client’s contract with Purchaser. Supplier shall comply in every respect with the occupational safety and health standards as provided under Public Law 91-596, as amended, or any Laws pertaining thereto.

Governing Law. This Agreement shall be governed by, and construed in accordance with, the internal laws of the State of Colorado, without regard to conflict of law principles. Parties expressly reject the applicability to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods. This Agreement may be translated into languages other than English; however, in the event of a conflict, the English language version shall control.

Arbitration. If at any time a dispute arises between Purchaser or Supplier upon, in relation to or in connection with this Agreement and such matter cannot be resolved through negotiation, either Party may give to the other Party notice in writing of the existence of such dispute and, at the request of either Party, the same shall be referred to the Parties’ senior management for resolution. If a resolution is not reached within ten (10) days of such referral, either Party may refer the matter to arbitration in accordance with the Construction Industry Arbitration Rules and Mediation Procedures (Including Procedures for Large, Complex Construction Disputes) of the American Arbitration Association in effect at the time of the arbitration. The number of arbitrators shall be three (3), and the site of the arbitration shall be Denver, Colorado, unless otherwise agreed in writing by the Parties.

Notices. All notices required or permitted under this Agreement shall be in writing and delivered: (a) by facsimile to Purchaser’s or Supplier’s facsimile number indicated in an Order, or (b) personally delivered or mailed, by certified mail, return receipt requested, to Purchaser’s or Supplier’s address, as applicable, indicated in an Order.

No Partnership. Nothing herein shall be construed as creating a partnership or joint venture between the Parties.

No Waiver. Any term or condition of this Agreement may be waived at any time by the Party that is entitled to the benefit thereof, but no such waiver shall be effective unless set forth in a written instrument duly executed by or on behalf of the Party waiving such term or condition. No waiver by any Party of any term or condition of this Agreement (including, for avoidance of doubt, any Order), in any one or more instances, shall be deemed to be or construed as a waiver of the same or any other term or condition of this Agreement or any Order on any future occasion. Subject to any limitation in this Agreement, all remedies, either under this Agreement, by law or otherwise afforded shall be cumulative and not alternative. No delay or omission by the Parties in exercising any right or remedy provided for herein shall constitute a waiver of such right or remedy, nor shall it be construed as a bar to or waiver of any such right or remedy on any future occasion.

Force Majeure. Purchaser may delay acceptance or payment due to causes beyond its control for as long as reasonably necessary. If delivery by Supplier of the Goods is delayed by the occurrence of unforeseen and unforeseeable events beyond Supplier’s control, Supplier must notify Purchaser of such events as soon as they occur and give Purchaser revised delivery dates. If any delay exceeds thirty (30) days from the original delivery date, Purchaser may cancel an Order without any liability.

Entire Agreement. This Agreement contains the whole and entire agreement between the Parties and supersedes any prior agreements, written or oral, with respect to the subject matter hereof. Purchaser shall not be bound by any provision, promise or condition not specifically set forth in writing and incorporated herein.

Amendment. This Agreement may be amended, supplemented, or modified only by written instrument duly executed by each Party.

Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under any present or future applicable law, and if the rights or obligations of any Party under this Agreement shall not be materially and adversely affected thereby, (i) such provision shall be fully severable; (ii) this contract shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part hereof; (iii) the remaining provisions of this Agreement shall remain in full force and effect and shall not be affected by the illegal, invalid or unenforceable provision or by its severance here from; and (iv) in lieu of such illegal, invalid or unenforceable provision, there shall be added automatically as a part of this Agreement a legal, valid and enforceable provision as similar in terms to such illegal, invalid or unenforceable provision as is possible.