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REQUEST FOODS, INC.

Standard Terms of Purchase

Request Foods, Inc. (“Request“) purchase orders are subject to these Standard Terms of Purchase (“Terms of Purchase” or “Terms“).  In these Terms, (a) “Products” refer to the raw materials, ingredients, components, equipment, machinery, goods, software and any other tangible items described on Request’s purchase order (“Request’s Order”) to be purchased by Request from the Supplier named on Request’s Order (“Supplier”); (b) “Services” refers to the services described on Request’s Order to be purchased by Request from Supplier; and (c) “Contract” refers to any contract formed pursuant to Request’s Order, which includes these Terms of Purchase, Request’s Order and any other terms agreed upon by Supplier and Request in writing.

  1. Agreement. Request’s Order is subject to the terms of any written agreement between Request and Supplier in which they have agreed that these Terms of Purchase will apply to Request’s purchases from Supplier.  If for any reason, however, no such agreement applies to Request’s purchases from Supplier under Request’s Order, then (a) Request’s Order is an offer to buy by Request and Request rejects any prior offers to sell made by Supplier; (b) if Request’s Order nevertheless is in legal effect an acceptance of a prior offer by Supplier, then Request’s acceptance is conditional upon Supplier’s assent to all terms of Request’s Order that are additional to or different from the terms of Supplier’s offer; and (c) by signing and returning a copy of Request’s Order or by accepting Request’s Order electronically or by shipping the Products or performing the Services, Supplier accepts, agrees and assents to all of the terms contained in Request’s Order.
  1. Price and Payment. Unless otherwise stated in Request’s Order, the price set forth on Request’s Order is a fixed price and not subject to increase for any reason.  Unless Request agrees otherwise in writing, Request shall not be required to pay any sales, use or other taxes arising because of Request’s purchase from Supplier.  Request shall not be required to pay any late charge, interest, finance charge or similar charge.  Request’s payment of the purchase price does not indicate its acceptance of the Products or Services.  Payment terms are specified in Request’s Order.  Payment terms, including discount periods, shall run from the latest of (a) the scheduled date for delivery or performance; (b) the actual date of delivery of conforming Products or performance of conforming Services; (c) the date of Supplier’s invoice; or (d) in the case of capital equipment, completion of Request’s final inspection and acceptance after installation.  Request may withhold payment to Supplier on any invoice if Request in good faith disputes any portion of such invoice or needs additional information related to the invoice.

Supplier shall notify Request immediately if Supplier becomes aware of any potential fraudulent activity or any Security Incident (as defined below) which indicates that the payment information Supplier has provided to Request may have been compromised.  If, as a result of a Security Incident or otherwise, a third party (including a third party fraudulently representing itself as Supplier in providing payment instructions to Request) is enabled to misdirect or fraudulently induce Request to misdirect payments intended to be made to Supplier, such misdirected payments will be deemed payments made by Request against any amounts owed to Supplier.  As used above, the term “Security Incident” means (x) a breach of security impacting Supplier’s information technology systems; or (y) one or more fraudulent emails or other communications impersonating an employee, agent or representative of Supplier.

  1. Delivery; No Force Majeure. Unless otherwise stated in Request’s Order, the Products shall be delivered DDP (Incoterms) Request’s facility identified on the face of the Request’s Order.  Time of delivery or performance is of the essence, and Request’s stated delivery or performance date and the date for performance of any other obligation of Supplier shall not be extended or excused for any reason, including without limitation force majeure or any other circumstance or event.
  1. Forecasts; Orders.

(a) In order to assist Supplier with its production planning, Request may provide Supplier with forecasts detailing projected orders.  Such forecasts are estimates only and shall not constitute a binding commitment for Request to purchase any given quantities of any Product or limit Request to only order certain quantities of Products.  Request shall in no way be responsible for Supplier’s action and reliance, whether reasonable or not, on such forecasts.

(b) If Request’s Order is a blanket purchase order or blanket purchasing agreement, then, except to the extent otherwise expressly stated in Request’s Order, Supplier is obligated to deliver to or perform for Request all Products or Services that Request orders during the stated period.  Regardless of whether Request’s Order is a blanket purchase order or blanket purchase agreement, however, (i) Request reserves the right to purchase Products and Services from other suppliers and Request has not agreed to exclusively purchase the Products or Services from Supplier; and (ii) Request is not obligated to purchase any minimum amount of Products or Services.

  1. Representations, Warranties and Agreements Concerning Supplier. Supplier represents and warrants to Request, and agrees and guarantees, that (a) Supplier has all necessary experience, qualifications, expertise, authority, licenses and permits to enable it to perform its obligations under the Contract; (b) the Contract is the valid and binding obligation of Supplier, enforceable against Supplier in accordance with its terms; (c) Supplier is solvent; (d) Supplier has not offered or given, and shall not offer or give, any gratuity or thing of value to any employee of Request or of any Affiliate of Request; (e) Supplier is and shall continue to be in compliance with all equal employment and affirmative action provisions of Executive Order 11246, the Vietnam Era Veterans’ Readjustment Assistance Act (“VEVRAA“), Section 503 of the Rehabilitation Act of 1973 and all implementing regulations under that Order, VEVRAA and Section 503; and (f) Supplier is and shall continue to be in compliance with all provisions of the Federal Food, Drug and Cosmetic Act and all regulations enforced by the Food and Drug Administration, including without limitation the FDA Food Safety Modernization Act and all associated regulations.  For purposes of these Terms of Purchase, an “Affiliate” of a party means any entity that directly or indirectly controls, is controlled by, or is under common control with that party.
  1. Representations, Warranties and Agreements About the Goods and Services. Supplier represents and warrants to Request, and agrees and guarantees, that:

(a) The Products shall be new.

(b) The Products and Services shall be merchantable, of good material, workmanship and quality, fit for the purposes for which Request intends them and free from faults and defects.

(c) The Products and Services shall conform to any samples, drawings, specifications, performance criteria standards or other requirements that are referred to in Request’s Order or that Request has otherwise specified or agreed to in writing, or, if not stated, to standard commercial specifications.

(d) The Products, their manufacture, packaging, labeling, branding and sale, and the Services shall comply with all applicable United States and Canadian federal, state, provincial and local laws, regulations, standards and orders, including without limitation all United States and Canadian federal, state, provincial and local pure food laws, the Fair Labor Standards Act of 1938, the Occupational Safety and Health Act of 1970, the Federal Food, Drug, and Cosmetic Act, the FDA Food Safety Modernization Act, the Bioterrorism Preparedness and Response Act of 2002, the Federal Insecticide, Fungicide, and Rodenticide Act, the Fair Packaging and Labeling Act, the Poison Prevention Packaging Act of 1970, the Poultry Products Inspection Act, the Federal Meat Inspection Act, all acts and regulations enforced by the United States Department of Agriculture and the Federal Food and Drug Administration, and all Good Manufacturing Practices promulgated by the Federal Food and Drug Administration, as each of those acts or regulations has been or is amended.

(e) The Products shall not contain chemicals or substances deemed by any United States or Canadian federal, state, provincial or local law to be toxic, hazardous to health, or to cause cancer, birth defects, or other reproductive harm.

(f) Supplier guarantees that the Products are not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, and are not Products which may not, under the provisions of section 404, 505, or 512 of the act, be introduced into interstate commerce. This guaranty shall be a continuing guaranty and shall be binding upon Supplier with respect to all Products shipped or delivered by Supplier, including without limitation articles in transit.

(g) Supplier has and follows, and will continue to have and follow, adequate quality and security procedures that will assure that the Products and Services will comply with the foregoing warranties, representations, agreements and guarantees.

(h) The prices of the Products or Services and any discounts, advertising allowances or other merchandising payments or Services provided to Request under the Contract are as favorable to Request as the lowest prices and the highest discounts, advertising allowances or other merchandising payments or Services that Supplier provides to other buyers of comparable Products or Services.

(i) Supplier shall promptly furnish to Request all information and copies of documents (including without limitation complaints, inquiries, test or inspection results and warnings) that Supplier receives from an end-user (e.g., consumers) of the Products, a government agency, an employee or agent of Supplier or any other person or source and that suggests or indicates that the Products may not conform to the requirements of this paragraph.

Upon request, Supplier shall provide Request with certificates of compliance with applicable laws and regulations, and/or laboratory certificates of analysis showing compliance with the requirements of this paragraph.  Request’s approval of a sample, drawing, specification or standard shall not relieve Supplier of any of its warranties under this Paragraph 6, including without limitation its warranties of merchantability, fitness and compliance with laws.  Supplier’s warranties extend to future performance of the Products and Services and survive inspection, tests, acceptance and payment and shall be considered to have been given not only to Request but also to Request’s customers, any retailers and to end-users (e.g., consumers) of the Products.

  1. Tests. If directed by Request or required by law, Supplier shall perform microbiological testing with respect to each shipment of the Products consisting of ingredients, raw materials or food products (such Product being defined collectively as “Food Products”), to determine whether the Food Products conform to the standards and specifications utilized by Request, the United States Department of Agriculture, the United States Food and Drug Administration and/or any United States or Canadian federal, state, provincial or local office or agency.  Upon request, Supplier shall furnish to Request, before or upon delivery of the ingredients or Food Products, a copy of the results of, and a certificate of analysis with respect to, each test.
  1. Indemnity. Supplier shall defend, indemnify and hold Request, its Affiliates and its and their respective officers, directors, shareholders, members, managers, agents, representatives and employees (all of the above being referred to collectively as “Indemnified Parties”) harmless from and against any claims, liabilities, losses, damages and expenses (including without limitation actual attorneys’ fees, other out-of-pocket costs, internal allocated workforce costs and administrative costs) brought against or incurred by any of the Indemnified Parties arising out of or related to (a) any breach by Supplier of the Contract, including without limitation any breach by Supplier of Request’s Order or these Terms of Purchase; (b) any actual or alleged defects in the Products or the Services; (c) any negligence, intentional misconduct or other fault of Supplier, its sub-suppliers or any other person or entity under the control of Supplier; (d) any claim that any of the Products or Services infringes any patent, trademark, copyright or other intellectual property right; or (e) any death, injury or damage to any person or property alleged to have been caused in whole or in part by (i) the Products or Services, Supplier’s manufacture of the Products or performance of the Services, or (iii) Supplier’s employees or agents presence or work at Request’s facilities.
  1. Changes and Inspections. Request may at any time, by giving notice to Supplier, change Request’s Order or the Contract as to (a) designs or drawings of or specifications for the Products or Services; (b) time or place of delivery or performance; (c) method of packing or shipment; or (d) quantity of the Products or extent of the Services.  If this causes a change in Supplier’s cost or time of performance, then an equitable adjustment shall be made in the price or time for delivery or performance, or both, but only if Supplier makes a written request for an adjustment within twenty (20) days after Request notifies Supplier of the change. Request’s employees or agents may at any time enter Supplier’s premises (x) to inspect and test the Products, Supplier’s process of manufacturing of them and any materials, components or work-in-process that Supplier will use in their manufacture or to take any other actions related to Request’s Order or the Contract, and (y) to inspect and make copies of any books and records related to any of the foregoing or related in any way to the Products, the Services, Request’s Order or the Contract.  If Request’s inspection of any of the Products inspected are nonconforming or defective, then Supplier shall reimburse Request for all costs and expenses (including without limitation internal allocated workforce costs and administrative costs) that Request incurs in inspecting all of the Products.
  1. Termination.

(a) Either party may terminate Request’s Order or the Contract, in whole or in part, if the other party materially breaches its obligations and fails to cure such material breach within thirty (30) days after receipt of written notice from the non-breaching party.

(b) Request may terminate Request’s Order or the Contract, in whole or in part, at any time by giving Supplier a notice stating the extent and effective date of termination.  When Supplier receives notice of termination under the preceding sentence, Supplier shall, unless otherwise directed by Request, stop work and acquisition of materials under the Contract and use its best efforts to mitigate all costs and expenses.  Not later than thirty (30) days after the effective date of termination, Supplier shall submit to Request its claim, if any, for reasonable compensation for termination.  Request shall have the right to audit and inspect Supplier’s books, records and other documents relating to the termination claim.  If the parties cannot agree within a reasonable time upon the amount of equitable compensation for the termination, then Request will pay to Supplier, without duplication, (i) the Contract price for conforming Products or Services that Supplier shall have completed and delivered or performed (as applicable) in accordance with the provisions of the Contract; plus (ii) the reasonable and documented costs that Supplier incurred that are properly allocable to the terminated portion of the Contract, but not to exceed the Contract price for the terminated portion of the Contract; minus (iii) the value to Supplier or any raw materials, work-in-process and finished Products that Supplier retains and that are allocable to the terminated portion of the Contract.

(c) Request’s rights and remedies under the Contract (including these Terms of Purchase) and applicable law shall survive notwithstanding any termination, in whole or in part, of Request’s Order or the Contract.

  1. Remedies.

(a) In the event that Supplier supplies nonconforming or defective Products to Request, or in the event that Request or one of Request’s Customers believes that Supplier may have supplied nonconforming or defective Products to Request, then all such Products (whether actually nonconforming or defective or believed to possibly be nonconforming or defective) shall be considered to be “Deficient Products”.  Without limiting other rights and remedies available to it, Request may, at its option, do one or more of the following with respect to Deficient Products:

(i) return such Deficient Products to Supplier, at Supplier’s risk and expense, and require Supplier either to give Request full credit against the price or promptly replace the Deficient Products at Supplier’s risk and expense;

(ii) retain the Deficient Products and set off losses against any amount that Request owes Supplier;

(iii) replace the Deficient Products and charge Supplier with the expense;

(iv) dispose of the Deficient Products and charge Supplier with the expense; and/or

(v) if the Deficient Products have been used or consumed in Request’s production process (for example, in producing finished goods), then Request may recover from Supplier all of Request’s costs and damages arising out of or related to such Deficient Products, including without limitation the following:

(1) Request’s costs of production (including ingredients, raw materials, use of equipment, direct and indirect labor, overhead, plus profit for Request);

(2) Costs of scrapping any finished goods or work in process (WIP) that were produced using or including such Deficient Products; and/or

(3) Shipping costs, the costs of recalling or withdrawing any finished goods, costs related to payment or fulfillment of obligations owed to Request’s customers or other third parties, administrative costs, and internal costs.

(b) In addition to Request’s rights described in these Terms of Purchase, Request shall retain all of the other rights and remedies that the law gives to buyers, including without limitation the right to recover consequential, incidental, direct and indirect damages resulting from Deficient Products and/or Supplier’s breach or other fault of Supplier.  Request shall not lose any right just because it does not exercise it.  Request shall have the full statutory period of limitations to bring any action arising out of Request’s agreement with Supplier.  A reasonable time for Request to notify Supplier of any breach is not less than two (2) years from when Request discovers the breach.

(c) In the event that Request files a lawsuit, defends a lawsuit or takes other actions to enforce these Terms of Purchase, Supplier shall reimburse Request for all costs and expenses incurred by Request in doing so, including without limitation actual attorney fees and costs, and internal allocated workforce costs and administrative costs.

(d) Supplier agrees that under no circumstances will Request be liable for any consequential, incidental, indirect, punitive or other special damages arising out of or related to Request’s Order, the Contract, the Products or the Services.

  1. Setoff. All amounts payable to Supplier are subject to Request’s claims and defenses.  Request may set off and deduct all existing and future amounts owed or to be owed by Supplier or its Affiliates to Request against any existing or future amounts payable by Request to Supplier or its Affiliates.  Request’s rights shall apply whether or not Supplier or any of its Affiliates has assigned to another party (“Assignee”) any rights to receive amounts owing or to be owing from Request.  All such rights of an Assignee are subject to all of the terms of the Contract and to all claims and defenses that Request at any time has against Supplier or the respective Affiliate, whether arising under the Contract or otherwise.  Additionally, if Request or any of its Affiliates believes in good faith that it is at risk, Request or any of its Affiliates may withhold and set off a corresponding amount due or to be due Supplier or any of its Affiliates to protect against such risk.
  1. Request’s Property. Any designs, drawings, specifications, methods of manufacture, intellectual property, documents and other information and any tooling, equipment or other property that Request furnishes to, or acquires from, Supplier in connection with Supplier’s manufacture of the Products or performance of the Services (“Request Property“) are and shall at all times be Request’s sole and exclusive property.  Supplier shall (a) maintain the Request Property in good condition, (b) mark the Request Property “PROPERTY OF REQUEST FOODS, INC.“, (c) not commingle the Request Property with property of Supplier or third parties, (d) allow Request to inspect and examine the Request Property at any time, and (e) return the Request Property to Request upon its request.
  1. Insurance. During the term of the Contract and continuing for three (3) years thereafter, (a) Supplier shall maintain insurance coverage that will fully protect both Supplier and Request from any and all claims and liabilities of any kind or nature for property damage, personal injury, death and economic damage, to any person, that arises from the Products or their use or the performance of the Services or any activities connected with the Services; and (b) Supplier shall maintain employee’s liability and compensation insurance that will protect Request from any and all claims and liabilities that Supplier or any employee or agent of Supplier makes under any applicable worker’s compensation or occupational disease acts.  The insurance required under this paragraph shall include without limitation the following:

Commercial General Liability Insurance: Including Bodily Injury and Property Damage Liability, Independent Contractors Liability, Contractual Liability, Product Liability and Completed Operations Liability in an amount not less than $4,000,000 combined single limit, per occurrence, and in the aggregate.

Umbrella or Excess Liability Coverage: Not less than $10,000,000 per occurrence and in the aggregate.

Coverages and limits required hereunder are to be considered minimum requirements and in no way limit the indemnification liability of Supplier, its affiliates or any of its or their respective employees.  If Request requests Supplier to do so, Supplier shall cause Request to be named as an additional insured on the policies evidencing the insurance and shall require each insurer to give Request at least thirty (30) days prior written notice of cancellation of each policy.  Upon Request’s request at any time, Supplier shall furnish to Request certificates evidencing required insurance.

  1. Work on Premises. If Supplier’s performance of Services or delivery or installation of Products involves operations by its employees or subcontractors on Request’s premises, then Supplier shall at all times enforce strict discipline and maintain good order among all persons engaged in the activity on the premises and shall cause them to comply with all fire prevention and safety rules and regulations in force at the premises.
  1. Confidentiality and Non-Use. Supplier shall maintain the confidentiality of, and shall not disclose or use or permit to be disclosed or used or to be viewed by any third party (including without limitation any of Supplier’s suppliers), the Products, any designs of or specifications or recipes for the Products, any Request Property or any information concerning Request’s business, operations or activities, including without limitation information concerning Request’s present or proposed products, product developments, plans, strategies, finances, know-how, sales, customers and marketing or sales techniques (“Confidential Information“), except that Supplier may disclose Confidential Information to a third party (other than a competitor of Request or an Affiliate of a competitor) to the extent disclosure is necessary in order for Supplier to perform its obligations under the Contract.
  1. Intellectual Property. All inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, trademarks, trade names, trade dress, service marks, names, software and other works and matters that Supplier creates or develops in the course of Supplier’s performance of the Services or Supplier’s design or development of the Products for Request, including without limitation all proprietary rights in the foregoing (“Intellectual Property”) shall be Request’s sole property, and Supplier assigns, and agrees to assign, to Request all right, title and interest that Supplier now has or in the future acquires in the Intellectual Property.
  1. Recall and Withdrawal Procedure; Unsafe or Unfit Products.

(a) Supplier will have a system in place, acceptable to Request and compliant with applicable laws and regulations, to enable Supplier to trace rapidly the entire history of a particular lot of Products consisting of Food Products including without limitation manufacturing and shipping records and a full reconciliation of all Food Products manufactured, stored and shipped.

(b) If a governmental agency or court declares that any ingredient of, or any material included in, any Product consisting of Food Products (either by itself or as incorporated into finished goods) or packaging is, or if Request or any of its customers at any time believes that any such Product consisting of Food Products (either by itself or as incorporated into finished goods) or packaging may be, adulterated, misbranded, unsafe, unhealthy or unfit for the intended use of such Product or the related finished goods, then, without limiting other rights and remedies available to Request under these Terms of Purchase or applicable law, Request may do one or more of the following: (i) Request may terminate Request’s Order or the Contract, without liability to Supplier, by giving written notice to Supplier, which shall be effective immediately or on any later date that the notice specifies; (ii) if Request does terminate, then Request’s obligations under the Contract shall terminate immediately and Request shall have no obligation to pay Supplier damages or other compensation by reason of the termination; (iii) Request shall have the right to recall and withdraw any or all of the finished goods incorporating such Product from its customers, from retailers and end-users (e.g., consumers) and any others having possession of the finished goods incorporating such Product, and Supplier shall reimburse Request for all costs and expenses related to such recall or withdrawal (including without limitation costs and expenses assessed by customers, freight costs, replacement costs, fees assessed by customers or third parties, actual attorney fees, internal allocated workforce costs and administrative costs); and/or (iv) Request shall have the right to recover all other costs and expenses incurred in connection with such Product, including without limitation all costs involving in producing finished goods containing such Product and all costs of disposal of such Product and any finished goods incorporating such Product.

  1. Transition. In the event that Request considers Supplier a current supplier but for whatever reason Supplier has rejected (or has indicated that it will reject) one or more of Request’s purchase orders and/or Supplier and Request cannot agree upon the pricing or other terms for future orders, then Supplier agrees that it will, at Request’s option, continue to supply Products at then-existing prices and terms until the later of (a) ninety (90) days after Request’s written request for Supplier to continue supply; or (b) Request completing the process of contracting with a replacement supplier and Request having received acceptable production Products from such replacement supplier.
  1. Other Terms. Supplier is an independent contractor, and neither Supplier nor any of Supplier’s employees or agents shall be considered agents or employees of Request.  Supplier shall furnish, at Supplier’s expense, all labor, materials, equipment, transportation, facilities and other items necessary to supply the Products or perform the Services.  Supplier shall not have and waives any security interest in or lien (including any statutory or common law lien) upon any Request Property or the Products.  Supplier may not delegate or subcontract any of its obligations under Request’s Order or the Contract without Request’s written consent.  If at any time Request has reasonable grounds for insecurity as to Supplier’s performance, then Supplier shall provide adequate assurance of due performance within five (5) days after Request demands the assurance, which shall be considered to be a reasonable time. Request’s failure to exercise, or Request’s waiver of, a right or remedy on one occasion is not a waiver of that right or remedy with respect to any future occasion.
  1. Equipment. This paragraph applies to any Product that consists of equipment, machinery, controllers and/or related items (collectively, “Equipment”).  Supplier agrees that the Equipment will conform to and satisfy all specifications, designs, drawings, performance standards (including run rates, scrap rate, uptime requirements, capacity, etc.), capabilities and other requirements that Request provided to Supplier and/or that Supplier has otherwise agreed to (collectively, “Equipment Specifications”).

(a) All Equipment is subject to inspection and acceptance by Request.  If the Equipment does not meet the Equipment Specifications or Supplier has otherwise breached its obligations to Request, then Request may reject the Equipment and, in addition to pursuing all of its other rights and remedies, obtain a full refund of all amounts paid to Supplier.

(b) In addition to the other warranties provided by Supplier under these Terms and the Contract, Supplier represents and warrants to Request that, upon delivery and throughout the Warranty Period (as such term is defined below), the Equipment (i) will be new and will conform to the highest industry standards; (ii) will conform to and will perform in accordance with the Equipment Specifications, including without limitation all performance standards; (iii) will be free from defects in material, workmanship and design; (iv) will not infringe intellectual property by any third party; (v) will be fit for the purposes intended by Request; (vi) will conform to all applicable laws and regulations of the United States and the State of Michigan; and (vii) will be free and clear of all liens, claims and encumbrances.

As used above, the term “Warranty Period” means twenty-four (24) months after acceptance of the Equipment by Request, unless the Supplier and Request otherwise agree to a different Warranty Period.  The Warranty Period for the Equipment will be extended one month for each month in which the Equipment does not meet any Equipment Specifications.

(c) If the Equipment does not meet any of its warranties, Request may at its option elect one or more of the following non-exclusive remedies to be performed at Supplier’s expense:  (i) require Supplier to repair or replace the Equipment at Supplier’s expense; and/or (ii) correct the nonconformity or defect and charge Supplier for the cost to make the correction.  During the Warranty Period, Supplier shall take all such actions at no charge to Request, including Supplier’s obligation to pay for all freight costs, removal, installation and labor.

(d) If a breach of warranty occurs during the Warranty Period and Supplier is unable to repair or replace the Equipment within a reasonable period of time but not to exceed two (2) production days, then the Warranty Period will be tolled for the period of time the Equipment has not been repaired or replaced.  If any breach of warranty related to the Equipment cannot, in Request’s opinion, be satisfactorily repaired, then at Request’s option the Equipment may be removed at Supplier’s expense.  Supplier will pay all removal and shipping costs within thirty (30) days after Request’s invoice date.  At Request’s option, Supplier will either replace the Equipment at its cost or refund all amounts previously paid by Request.

(e) Request’s rights and remedies set forth above are not exclusive and Request reserves all of its rights and remedies related to any breach of warranty or other breach by Supplier related to the Equipment.  These rights and remedies include without limitation withholding payments, obtaining refunds and recovering all direct, indirect, consequential, incidental and other damages arising out of or related to Supplier’s breach of warranty or other breach.

  1. Applicable Law; Complete Agreement. Request’s Order and the Contract shall be governed by, and interpreted according to, Michigan law, without regard to conflicts of laws principles.  Any action based upon or arising out of Request’s Order or the Contract shall be brought exclusively in any state or federal court in Kent County or Ottawa County, Michigan, and Supplier irrevocably consents that the court shall have exclusive personal jurisdiction and venue over Supplier and waives any objection that the court is an inconvenient forum.  These Terms of Purchase supersede any previous version of Request’s Terms of Purchase.  Request’s Order, these Terms of Purchase and any other terms agreed upon by Supplier and Request in writing constitute the Contract and the complete agreement of Request and Supplier.  No clickwrap or other electronic agreements to Supplier’s terms by Request, including without limitation agreements purportedly made through use of any electronic portal of Supplier, shall be valid or binding on Request.  Any agreement by Request to modify or alter these Terms of Purchase must be in a writing signed by Request’s Chief Financial Officer, President or Chief Executive Officer.

(End of Terms of Purchase)

W21388345

Rev 2.0 (9/2022)