800.558.5592 • [email protected] • perlick.com 99 QB\60534913.4 Last Updated February 15, 2021 ANY LOST PROFITS, COSTS OF SUBSTITUTE GOODS AND SERVICES, MACHINE WORK OR LABOR COSTS, ARISING FROM THE SALE, USE, OR INSTALLATION OF THE OFFERINGS, FROM OFFERINGS BEING INCORPORATED INTO OR BECOMING A COMPONENT OF ANOTHER GOOD, OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, AND REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY SELLER CONCERNING THE SALE, USE, OR INSTALLATION OF THE OFFERINGS, EVEN IF SELLER IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID TO SELLER BY BUYER FOR THE OFFERINGS WITHIN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO BUYER’S CLAIM. THE LIMITATIONS SET FORTH HEREIN SHALL BE VALID AND ENFORCEABLE NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED REMEDY SET FORTH HEREIN. 12. INTELLECTUAL PROPERTY OWNERSHIP. All intellectual property rights, including copyrights, patents, patent disclosures, inventions (whether patentable or not), trade dress, trade names, logos, corporate names, domain names, trademarks, service marks, trade secrets, know-how, and/or other confidential information, together with all derivative works and all goodwill associated therewith, and all other rights in and to all the Offerings, documents, work product, and other materials (whether or not copyrightable) that are delivered to Buyer under this Agreement or prepared by or on behalf of Seller in the course of performing under this Agreement, shall be exclusively owned or otherwise licensed by Seller. Except as otherwise expressly and specifically provided, no license, transfer, or assignment of proprietary rights from Seller to Buyer will occur as a result of this Agreement or any order. Buyer warrants that any trademarks Buyer requests Seller to affix to any Offering is owned or authorized for use by Buyer. Buyer shall not contest, or assist others in contesting, the validity or ownership of Seller’s intellectual property. 13. TOOLS. All dies, tools, patterns and the like involved in the manufacture of the Offerings are and will remain the property of Seller, except that any dies, tools, patterns and the like specifically ordered and paid for by Buyer (“Buyer Tooling”) will remain the property of Buyer. Seller will return any Buyer Tooling to Buyer upon request after all amounts owed to Seller have been paid in full; provided, however, that if Buyer does not request in writing and accept delivery of the Buyer Tooling within thirty (30) days following the earlier of (a) the expiration or termination of this Agreement, (b) the conclusion of the project requiring the use of the Buyer Tooling, or (c) Seller’s written request, then Seller shall thereafter own the Buyer Tooling and may use or dispose of the Buyer Tooling in Seller’s sole discretion, and all of Buyer’s rights in and to the Buyer Tooling shall cease and be of no further effect. Buyer is responsible for insuring all Buyer Tooling. 14. INDEMNITY. Buyer shall indemnify, defend, and hold Seller, its affiliates, and its and their respective directors, officers, employees, representatives, agents, customers, users, successors, and assigns harmless against all claims, damages, losses, liabilities, costs, and expenses, including all attorneys’ fees, paid or incurred by Seller in connection with any claim whatsoever, including without limitation any claim of infringement of a patent, copyright, trademark, trade secret, or other proprietary right, and claims of product liability, personal injury, property damage, and product defect, which arises out of or is related to Buyer’s or its direct or indirect customers’ use of the Offerings, negligence, willful misconduct, violation or breach of any term of this Agreement, fraud, or violation of law, or from Buyer’s specifications for the Offerings. 15. PRODUCTION LOCATION. Seller reserves the right to produce any order at any of its manufacturing locations unless a separate written agreement is in place between Buyer and Seller specifying a single production location. 16. SECURITY INTEREST. Buyer hereby grants to Seller and Seller hereby retains a lien on and a security interest in and to all of the right, title, and interest of Buyer in, to, and under the Offerings and accessories and additions thereto sold by Seller to Buyer, wherever located, whether now existing or hereafter acquired, all spare parts and components therefor, and all proceeds of the sale or other disposition including, without limitation, cash, accounts, contract rights, instruments, and chattel paper. If requested by Seller, Buyer shall execute one or more financing statements pursuant to the Uniform Commercial Code in a form satisfactory to Seller. In the event Buyer is in default under this Agreement, Seller will have the remedies of a secured party under applicable law, including without limitation the Uniform Commercial Code, and Seller may thereupon enter the premises of Buyer and remove and repossess all Offerings. The security interest granted under this Section constitutes a purchase money security interest under applicable law. 17. SETOFF. Seller may set off any amount due from Buyer, whether or not under this Agreement, against any amount due Buyer hereunder. Buyer may not set off any amount due from Seller, whether or not under this Agreement, against any amount due Seller hereunder without Seller’s prior written consent. 18. CONFIDENTIALITY. All non-public, confidential or proprietary information of Seller and Seller’s affiliates, customers, and suppliers, including without limitation specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller is entitled to injunctive relief for any violation of this Section without the necessity of proving the existence, amount, or insufficiency of damages or posting bond. This Section does not apply to information that is lawfully obtained by Buyer on a non-confidential basis from a third party without confidentiality obligations with regards to such information. 19. SOLICITATION OF PERSONNEL. For so long as there is any order for Offerings in effect between Buyer and Seller and for twelve (12) months thereafter, Buyer shall not solicit for employment any employee or contractor of Seller. Seller is not to be restricted from soliciting any employee, contractor, or customer of Buyer. 20. TERMINATION. In addition to any remedies that may be provided under these Terms or applicable law, Seller may terminate this Agreement or any Order, in whole or in part, without liability and with immediate effect upon notice to Buyer for any reason or no reason at all, including without limitation if Buyer (a) fails to pay any amount when due under this Agreement, (b) has not otherwise performed or complied with any term of this TERMS AND CONDITIONS
