1. GENERAL

The following terms and conditions will govern the sale of any and all products (“Product(s)”) by KIK Custom Products Inc. or its subsidiaries (collectively “Seller”) to its customers (“Buyer”) unless such sale is pursuant to a written agreement signed by Seller and Buyer, in which case, the terms and conditions set forth in such agreement will govern such sale of Product. These terms and conditions may not be amended, supplemented, or otherwise modified except by a written document signed by both parties. These terms and conditions will not be affected by the acknowledgment or acceptance of any form containing additional or different terms or conditions, which will be of no force or effect.

2. PRICE INCREASE

Seller may increase any price for a Product hereunder commencing the first day of any calendar month by giving notice, 30 days prior to the effective date of the increase. Any price increase will apply to all Product shipped on or after the effective date of the increase. If Buyer gives notice to Seller objecting to an increase before the effective date of that increase and the parties do not mutually agree on the price for that Product prior to such effective date, Buyer may cancel that quantity of Product to which the increase applies by giving notice to Seller within 7 days of price change notice. If, because of any law, regulation or other governmental action, Seller is required to reduce any price in effect hereunder or is prevented from increasing any price to the extent it wishes pursuant to this Section 2, Seller may cancel from these terms or related agreement the Product so affected by giving notice to Buyer, 30 days prior to the date of cancellation.

3. TAXES

Except where the law otherwise provides, Buyer will pay Seller, in addition to the purchase price, the amount of all governmental taxes, excises and/or other charges (except taxes on or measured by Seller’s net income) that Seller may be required to pay with respect to (a) the production or transportation of any Product delivered hereunder to the extent that such tax, excise or charge is first imposed or increased after the date hereof; or (b) the sale of any Product delivered hereunder.

4. DELIVERY AND SHIPMENT; TITLE AND RISK OF LOSS

  1. All sales are Ex Works (Incoterms 2020) with insurance and freight paid by Buyer to the destination identified in writing by Buyer, unless otherwise agreed by the parties in writing.
  2. Title and risk of loss will transfer to Buyer upon delivery of Product in accordance with the delivery terms set forth above.
  3. Delivery dates are approximate, and no liability is accepted by Seller for delay from any cause whatsoever.
  4. Any demurrage or detention charges legally payable to any transportation carrier due to the action or inaction of the Buyer will be payable by and for the account of the Buyer.
  5. Packaged shipments will be made in Seller’s standard containers, except as otherwise agreed by Seller in writing.
  6. Buyer will be responsible for the lawful disposal of (i) all disposable containers and packaging and (ii) any expired Products.

5. ACCEPTANCE

Unless other acceptance criteria have been expressly agreed to by the parties in Buyer’s order, the Buyer shall inspect Products within a reasonable period after delivery, not to exceed thirty (30) calendar days. Products are presumed accepted and in good condition unless Seller receives thirty (30) days’ written notice from Buyer, rejecting Products for not meeting the agreed specifications.

6. PAYMENT

Payment terms are net 30 days after the date of Seller’s invoice, unless otherwise agreed to in writing by Seller. Invoices will not be dated prior to the date of shipment. Invoices not paid within 30 days will bear interest at a rate equal to one and one-half percent per month, or the maximum rate permitted by law, whichever is less. Buyer may not offset any amounts claimed from Seller against any payments due to Seller with respect to Products sold hereunder.

7. INSURANCE

Buyer is solely responsible for maintaining insurance covering the Products and any occurrences related to the Products with a carrier having a minimum AM Best rating of “A”VII. The insurance coverage amounts shall be in accordance with standard market practices.

8. WARRANTIES AND CLAIMS

  1. Seller warrants that Product(s) delivered hereunder will meet Seller’s standard written specifications for the Product in effect at the time of shipment. SELLER NEITHER MAKES NOR INTENDS, NOR DOES IT AUTHORIZE ANY AGENT OR REPRESENTATIVE TO MAKE, ANY OTHER WARRANTIES, EXPRESS OR IMPLIED AND, TO THE EXTENT PERMITTED BY LAW, IT EXPRESSLY EXCLUDES ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
  2. Buyer’s receipt of any Product according to shipping terms above will be an unqualified acceptance of and a waiver by Buyer of any and all claims with respect to such Product unless Seller receives written notice of such claim within 7 days after Buyer’s receipt. Buyer assumes all risks and liabilities resulting from Buyer’s use of Product(s) in the manufacturing processes of Buyer or the combination of Product(s) with other substances. Claims for shortages of less than ½ of 1% of the gross weight of bulk shipments will not be allowed. Seller’s weights taken at the shipping point will govern, unless proven to be in error.
  3. Seller’s sole liability and Buyer’s sole remedy for any claim arising with respect to non-conforming Product delivered will be as follows: (i) at Seller’s option, replacement of any non-conforming Product or the refund of the purchase price, (ii) reimbursement of reasonable out-of-pocket costs incurred by Buyer for removal, storage, transportation and disposal of non-conforming Product (unless non-conforming Product is returned to Seller at Seller's request and expense) and (iii) reimbursement of reasonable out-of-pocket costs incurred by Buyer to rework non-conforming Product.
  4. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY FOR CLAIMS ARISING IN CONNECTION WITH PRODUCT IN THE AGGREGATE A SUM EQUAL TO THE AMOUNT ACTUALLY PAID TO SELLER FOR THE PRODUCTS OR RELATED SERVICES FROM WHICH THE CLAIM AROSE, WHETHER SUCH LIABILITY IS BASED ON NEGLIGENCE, BREACH OF WARRANTY, BREACH OF CONTRACT, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE THEORY.
  5. TO THE EXTENT PERMITTED BY LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES (INCLUDING PENALTIES, TAXES OR FILING FEES) OR LOST PROFITS, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES.

9. INTELLECTUAL PROPERTY

  1. Seller retains ownership of any creative idea, design, development, invention, works of authorship, know-how, or work results (“Creations”) and intellectual property rights owned by Seller prior to the effective date of a purchase order or related agreement, whichever is earlier, and Seller owns any Creations and rights in intellectual property created by or on behalf of Seller unless otherwise assigned (collectively, “Seller’s IP”). Seller grants Buyer a non-exclusive, royalty-free, worldwide, perpetual, irrevocable, non-assignable, non-sub-licensable license to Seller’s IP that may be embedded in the Products for the purpose of selling the Products. Buyer agrees not to remove or alter any indicia of manufacturing origin or intellectual property application or registration numbers contained on or within the Products, including without limitation the serial numbers or trademarks on nameplates or cast or machined components.
  2. Buyer retains ownership of Creations and intellectual property rights owned by the Buyer prior to the purchase order or related agreement, whichever is earlier, (collectively, “Buyer’s IP”). Buyer grants Seller a revocable-at-will, non-exclusive, royalty-free, worldwide license under Buyer’s IP for the purpose of manufacturing, packaging and delivering the Products hereunder.

10. INDEMNIFICATION

Notwithstanding anything to the contrary contained in these Terms and Conditions, Buyer agrees to indemnify and hold Seller, its affiliates and their respective employees, agents and customers (collectively, the “Seller Indemnified Parties”) harmless from and against any all costs, losses, liabilities, damages (including, without limitation, consequential damages), claims or expenses arising out of third party claims for personal injury or property damage incurred by any of the Seller Indemnified Parties. Further, Buyer agrees to indemnify and defend Seller, its employees, agents, affiliates and subsidiaries for any suit against Seller based upon a claim of infringement resulting from (i) Products provided pursuant to Buyer’s designs, drawings or manufacturing specifications or use of trademark or logos supplied or approved by Buyer; (ii) Products used other than for their ordinary purpose; (iii) claims of infringement resulting from combining any Products furnished hereunder with any article not furnished by Seller; (iv) any modification of any Products other than a modification by Seller; or (v) Buyer’s use or sale of Seller’s Product into a jurisdiction where such Product is prohibited or restricted from sale. In no event shall Seller be liable for Buyer's attorney fees or costs in respect of resolving infringement claims hereunder.

11. FORCE MAJEURE

Seller’s failure to perform will not be considered a breach to the extent such nonperformance results from, or is made impracticable by, any cause beyond its reasonable control, such as acts of God, war, fires, explosions, natural disasters, pandemics, epidemics, lockdowns, strikes or lockouts, sabotage, critical equipment failure, governmental laws and regulations, or the inability to obtain raw materials, equipment or utilities.

12. HARDSHIP

If for any reason Seller’s production or purchase costs for the Products (other than law, regulation or other governmental action; including without limitation market fluctuations influencing costs of energy, equipment, labor, transportation, raw material) increases over Seller’s production or purchase costs for the Products on the date of entering into an agreement or purchase order, then Seller may, by written notice to Buyer of such increased costs, request a renegotiation of the price of the Products. In the event the parties are not able to agree on a revised Product price within ten (10) days after a request for renegotiation is given, then Seller may terminate such purchase order or related agreement on (10) days written notice to Buyer.

13. SAFETY AND HEALTH

Buyer acknowledges that it has all relevant received documents, and information bulletins, containing Seller’s safety and health information concerning Product deliverable hereunder, and that it has read and understood such information, and that it agrees to comply with all applicable recommendations and warnings and use the Product only in a manner consistent with all information included in such documents and to incorporate such information into its personnel safety programs. Buyer agrees to inform its employees, contractors, agents, carriers, customers and anyone else who may become exposed to such Product after delivery to Buyer, of any hazards associated with Product, and of the proper storage, handling and use procedures for Product, disclosed in such documents or in additional documents provided to Buyer. Buyer shall ensure the Products are used strictly for their intended purposes. Buyer will indemnify Seller from and against any claims, damages, liabilities, and expenses (including attorney’s fees) arising from Buyer’s breach of the foregoing obligations. Buyer will (a) comply with all applicable statutory and regulatory requirements associated with the storage, transportation and use of the Products and proper disposal of Product waste and (b) inform Seller promptly of (i) any complaints or reports relating to environmental, health, safety or security matters related to any of the Products or to the storage or use of any of them and (ii) any health, safety, environmental or security incidents or other such matters relating to any of the Products that require notification or reporting to any governmental agency

14. CONFIDENTIALITY

  1. “Proprietary Information” means: (i) all intellectual property including any information, technical data or know-how in whatever form, including, but not limited to, documented information, machine readable or interpreted information, information contained in physical components, mask works and artwork, that is identified or reasonably ought to be known as being confidential, proprietary or a trade secret; (ii) business related information, including, but not limited to, pricing, manufacturing, or marketing; (iii) the terms and conditions of any proposed or actual agreement between the parties; (iv) either party’s business policies or practices; and (v) the information of others that is received by either party under an obligation of confidentiality.
  2. The receiving party shall keep all Proprietary Information disclosed hereunder confidential for a period of seven (7) years following the expiration or termination of this Agreement. Each party shall retain ownership of its Proprietary Information including, without limitation, all rights in patents, copyrights, trademarks and trade secrets. No right or license is granted hereby to one party or its customers, employees or agents, expressly or by implication, with respect to the Proprietary Information or any patent, patent application or other proprietary right of the other party, notwithstanding the expiration of the confidentiality obligations stated herein.
  3. Seller shall use Buyer’s Proprietary Information only for Products or related services hereunder. Buyer agrees that it shall not use or disclose Seller’s Proprietary Information for any purpose besides the purchase or use of Products or services hereto. Buyer shall not, whether by itself or through a third party, decompile, disassemble, analyze, reverse engineer or otherwise reproduce the Products, or any portion thereof, in an attempt to copy and/ or determine the chemical structure, composition and/ or manufacturing process involved with such Products.
  4. The receiving party has no duty to protect information of the other party that is proven by written records to be: (i) publicly known at the time of disclosure or becomes publicly known through no fault of recipient, (ii) known to recipient at the time of disclosure through no wrongful act of recipient, (iii) received by recipient from a third party without restrictions similar to those in this section, or (iv) independently developed by recipient.
  5. The receiving party may disclose the Proprietary Information to its employees and subcontractors strictly on a “need to know” basis and solely to carry out the party’s obligations. Upon written notice of the disclosing party, the receiving party agrees to return the disclosed Proprietary Information and all copies thereof to the disclosing party or destroy the disclosed Proprietary Information and provide a written certification of destruction to the disclosing party if requested by disclosing party. However, the receiving party may retain information or materials that the receiving party reasonably believes is necessary to comply with any applicable or regulatory requirements.

15. EXPORT AND IMPORT COMPLIANCE

  1. No provision hereof will be interpreted or applied so as to require Seller to do, or refrain from doing, anything that would constitute a violation of applicable export, re-export, anti-boycott, anti-corruption, or other international trade laws and regulations.
  2. Buyer is responsible for compliance with all applicable import and export control laws and regulations. Buyer shall obtain all import, export, and re-export approvals and licenses in connection with any subsequent export, re-export, transfer and use of all Products, services, data, and technology delivered hereunder and shall retain documentation evidencing compliance with those laws and regulations.
  3. Seller shall not be liable to Buyer for any failure to provide Products, services, transfers or technical data to Buyer as a result of actions that impact Seller’s ability to perform its obligations hereunder, including: (i) Buyer’s failure to provide or the cancellation of export, re-export or import licenses; (ii) any subsequent interpretation of applicable import, transfer, export or re-export law or regulation after the date of any Order; or (iii) delays due to Buyer’s failure to follow applicable import, export, transfer, or re-export laws and regulations.
  4. If Buyer designates the freight forwarder for export shipments from Seller’s facility, then Buyer's freight forwarder will export on Buyer's behalf and Buyer shall be responsible for any failure of Buyer's freight forwarder to comply with all applicable export requirements. Seller may provide Buyer's designated freight forwarder with required commodity information.

16. COMPLIANCE WITH LAWS

Buyer shall comply with all laws and regulations applicable to the installation, use, import or export of all Products delivered hereunder. Buyer shall not sell, transfer, export or re-export any Seller Products or technology for use in activities which involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use Products or technology in any facility which engages in activities relating to such weapons.
Buyer agrees, in performing their obligations, to comply with all applicable laws, rules, regulations and government orders. Buyer agrees that failure to act by Buyer or any of their employees, agents or representatives shall cause Seller to violate or incur any penalty or loss of tax benefits under any applicable laws, rules, or regulations. Buyer acknowledges that certain laws, customary business ethics and corporate policies of Seller Party prohibit offers, promises or payments, directly or indirectly, to Buyers or other parties for the purpose of kickbacks, commercial bribes or other legally impermissible, unjust, or unfair benefits or trade practices.

17. ASSIGNMENT

Buyer shall not assign any rights or obligations without the advance written consent of Seller, which consent shall not be unreasonably withheld. Seller may assign its rights or obligations with prior written notice to the Buyer.

18. GOVERNING LAW; JURISDICTION

  1. This transaction will be governed by the laws of the jurisdiction of Seller’s formation, without giving effect to its principles of conflict of laws.
  2. The parties agree that any suit, action or proceeding brought by either party against the other party related to this transaction will be brought solely in the courts of the jurisdiction of Seller’s formation.
  3. The United Nations Convention for the International Sale of Goods will not apply to this transaction.

19. TIME OF ESSENCE

Time shall be of the essence.