Terms & Conditions of Sale

1. Applicability. 

These terms and conditions of purchase (these “Terms”) govern the purchase of the products and/or equipment (“Products”) and/or services (“Services”) by Plascene, Inc. (“Plascene”) from the supplier (“Supplier” and together with Plascene, the “Parties” and each, a “Party”) named on the applicable purchase order issued by Plascene to Supplier (“Purchase Order”). These Terms and the Purchase Order Terms (as defined below) supersede all terms and conditions contained in any other documentation related to the subject matter herein and therein, and expressly exclude any terms and conditions contained in any purchase order, quotation, confirmation, invoice, or other document issued by either Party. In the event of a conflict between these Terms and the Purchase Order Terms, these  Terms shall control, except to the extent the Purchase Order specifically states the Parties’ intent that such Purchase Order Terms control with respect to a particular matter. For purposes of these Terms, “Purchase Order Terms” means, collectively, any one or more of the following terms specified by Plascene in the Purchase Order: (a) a list of the Services and/or Products ordered, including make/model number, UPC, SKU, and/or other descriptions and product identifiers; (b) the quantity of Products ordered; (c) the unit Price (as defined in Section 7.1 (Prices)) for each of the Products ordered, the total Price for the Products ordered, the total Price for the Services ordered, and payment terms; (d) applicable shipping terms and instructions; (e) Product warranty terms; (f) Product availability terms; (g) applicable delivery date(s) (each, a “Delivery Date”) and location(s) (each, a “Delivery Location”); (h) billing address; (i) tax exempt certifications; and (j) and any other instructions, requirements, specifications, and technical requirements provided by Plascene (“Specifications”).

2. Purchase Order Acceptance. 

The Purchase Order shall be deemed accepted by Supplier subject to these Terms and the Purchase Order Terms upon any of the following: (a) Supplier’s acceptance of the Purchase Order in writing within twenty-four (24) hours following Supplier’s receipt thereof; (b) Supplier’s commencement of performance; (c) Supplier’s acceptance of any payment under the Purchase Order; or (d) Supplier’s failure to acknowledge, in writing (which shall include email and EDI), receipt of the Purchase Order issued hereunder within twenty-four (24) hours following Supplier’s receipt thereof. By accepting a Purchase Order, Supplier agrees to sell Plascene the Products and/or Services set out in the Purchase Order pursuant to these Terms and the Purchase Order Terms, and on no other terms. If Supplier’s quote or  confirmation (or any other form) contains any supplemental, different, conflicting, modifying, or additional terms and/or is conditional upon Plascene’s adherence to its terms and conditions, then these Terms and the Purchase Order Terms shall operate as a counteroffer—expressly conditioned upon Supplier’s acceptance of the terms and conditions of these Terms and the Purchase Order Terms—and all supplemental, different, conflicting, modifying, or additional terms shall be deemed null and void. Plascene may, in its sole discretion, on notice to Supplier, without liability or penalty, withdraw, amend, or cancel any Purchase Order hereunder, whether before or after Supplier’s acceptance thereof, with or without cause, effective immediately or otherwise as specified in such notice; provided that Plascene may only cancel an accepted Purchase Order without cause at least fifteen (15) days before the Delivery Date for the Purchase Order or by providing notice within the cancellation period otherwise specified in the Purchase Order (except in the event of Supplier’s breach or default, in which case Plascene can cancel any  Purchase Order at any time without any liability to Supplier). Supplier shall have no right to cancel or amend any accepted Purchase Order without Plascene’s prior written consent. The cancellation of the Purchase Order does not affect any rights or obligations that: (i) are to survive under Section 18.2 (Survival); or (ii) were incurred by the Parties before the expiration or termination. Cancellation of the Purchase Order will not constitute a waiver of either Party’s rights, remedies, or defenses under these Terms or applicable Law (as defined in Section 6.1 (Packaging and Labeling)), or otherwise. Notwithstanding the foregoing, if Plascene cancels the Purchase Order for any reason, Supplier’s sole and exclusive remedy is payment for the Products received and accepted by Plascene prior to the termination. If any accepted Purchase Order is terminated under this Section, in accordance with Plascene’s written direction, Supplier shall immediately cease work and purchasing materials relating to fulfilling the Purchase Order, provided Plascene has no liability therefor. Without limiting the foregoing, in the event Plascene cancels the Purchase Order for cause as provided in this Section, Supplier shall be responsible for any excess procurement cost and all other damages incurred by Plascene as a consequence of such default.

3.Availability of Products. 

Supplier shall, at Supplier’s sole cost and expense, take such actions as are necessary or appropriate to ensure the uninterrupted supply of the Products and/or Services to Plascene as specified in the Purchase Order during any foreseeable or anticipated event or circumstance that could interrupt or delay Supplier’s performance under the Terms or the Purchase Order, including any labor disruption, whether or not resulting from the expiration of Supplier’s labor contracts (and whether or not such occurrence constitutes a Force Majeure Event hereunder). Unless otherwise specified in the Purchase Order, for resin and/or preform Products, Supplier shall ensure the uninterrupted supply of the Products to Plascene  for not less than sixty (60) days. If Supplier is aware of or anticipates any shortage of supply for any reason, it shall promptly notify Plascene of such shortage and its estimated duration. Subject to Section 18.13 (Force Majeure), if any of the Products are subject to limited availability, Supplier shall ship to Plascene at least as many units of such Products as Supplier ships to other similar customers. In such case, Plascene may either deduct the quantity of Products not shipped because of this allocation from the quantity to be purchased under the Purchase Order(s) at issue or require the Supplier to deliver the missed quantity once the shortage has ended, in Plascene’s sole discretion. If Plascene places one or more Purchase Orders that includes any Products subject to limited availability, Supplier shall notify Plascene before accepting each such Purchase Order.

4. Performance.  

SUPPLIER ACKNOWLEDGES THAT TIME AND QUALITY ARE ESSENTIAL AND MATERIAL ELEMENTS OF THE ESSENCE OF THESE TERMS WITH RESPECT TO SUPPLIER’S PERFORMANCE OF THE SERVICES AND DELIVERY OF PRODUCTS HEREUNDER AND THE TIMELY DELIVERY OF THE PRODUCTS AND SERVICES, INCLUDING ALL PERFORMANCE DATES, TIMETABLES, PROJECT MILESTONES AND OTHER REQUIREMENTS IN THESE TERMS AND THE PURCHASE ORDER. Supplier shall provide the Services and Products to Plascene as described and in accordance with the dates or schedule set forth on the Purchase Order and in accordance with the terms and conditions set forth in these Terms. Supplier shall ensure that all of its equipment used in the provision of the Services and Products is in good working order and suitable for the purposes for which it is used, and conforms to all applicable Laws and standards specified by Plascene. Plascene may, at any time and from time to time in its sole discretion, on notice to Supplier, without liability or penalty, change the scope of the Services effective immediately or otherwise as specified in such notice. Such changes may include, without limitation, performing additional work or providing more or different materials than called for in the Purchase Order, omissions or deletions of any part(s) of the Purchase Order, or revisions in the drawings, designs, Specifications, method of shipping, or packing. Supplier acknowledges that any such change to the Services may or may not entitle Supplier to an adjustment in the Prices or the performance deadlines under these Terms and the Purchase Order.

5. Shipment and Delivery

5.1 Packaging and Labeling. 

Supplier shall properly pack, label, mark, and ship all Products in accordance with these Terms, the Purchase Order Terms, and applicable Law as instructed by Plascene, and in a manner sufficient to ensure that the Products are delivered in undamaged condition. Supplier shall provide Plascene with shipment documentation that includes Plascene’s Purchase Order number and all other information requested by Plascene, including stock number, contents, and weight, shall contain an itemized packing slip and shall be properly packed for shipment. No charges will be allowed for packing, crating, freight, express or cartage unless explicitly specified in the Purchase Order. Supplier shall provide Plascene prior written notice if it requires Plascene to return any packaging material. Return of any such packaging material shall be made at Supplier’s risk of loss and expense. Without limiting the foregoing, for each shipment of Products, Supplier shall provide Plascene, in writing, sufficient advance warning and notice (in addition to including appropriate labels on Products, containers, and packing) of any hazardous or restricted material that is an ingredient or a part of the shipment, together with such special handling instructions as may be necessary to advise logistics providers, handlers of the Products and personnel of how to exercise that measure of care and precaution that will comply with any applicable Laws and prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the Products, containers, and packing. For purposes of these Terms, “Law(s)” means any statute, law, ordinance, regulation, rule, code, enforcement action, constitution, treaty, common law, order, writ, injunction, judgment, decree, or other requirement or rule of law, including those promulgated by any Governmental Authority, and industry standards; “Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, including, without limitation, the U.S. Environmental Production Agency, and California’s Office of Environmental Health Hazard Assessment, or any self-regulated organization, or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations, or orders of such organization or authority have the force of Law), or any arbitrator, court, or tribunal of any competent jurisdiction

5.2 Shipment and Delivery Requirements. SUPPLIER ACKNOWLEDGES THAT TIME, QUANTITY, AND QUALITY ARE ESSENTIAL AND MATERIAL ELEMENTS OF THE ESSENCE OF THESE TERMS. Supplier shall deliver all Services as specified in the Purchase Order and the Products strictly by the methods, to the Delivery Locations, and by the Delivery Dates specified in these Terms and the Purchase Order Terms. Prior to shipment, Supplier shall inspect the Products and certify in writing to Plascene that the Products are in compliance with these Terms, the Purchase Order Terms, and applicable Law. Unless expressly agreed otherwise by the Parties in the Purchase Order, Supplier shall deliver the Products DDP (Incoterms 2020) Plascene’s facility, or as otherwise instructed in the Purchase Order. Unless otherwise expressly agreed to by the Parties in writing, Supplier may not make partial shipments of Products to Plascene. If Supplier delivers more than the quantity of Products ordered, Plascene may accept or reject all or any excess Products. Any such rejected Products shall be returned to Supplier at Supplier’s sole risk and expense. If Plascene does not reject the Products and instead accepts the delivery of Products at the increased or reduced quantity, the Prices for the Products shall be adjusted on a pro-rata basis.

5.3 Title and Risk of Loss. 

Title to the Products passes to Plascene upon the earliest to occur of: (a) delivery of the Products to Plascene, (b) payment of any portion of the Price for such Products by Plascene, or (c) Plascene’s acceptance of the Products.  Title will transfer to Plascene even if Supplier has not been paid for such Products, provided that Plascene will not be relieved of its obligation to pay for Products in accordance with the terms hereof. Risk of loss for the Products passes to Plascene as provided in the commercial terms selected by the Parties under Section 5.2 or in the Purchase Order, if different. Supplier assumes the following risks:  (A) all risks of loss or damage to all Products, work process, and materials until delivery of the Products to the Delivery Location specified in the Purchase Order;  (B) all risks of loss or damage to third persons and their property until delivery of the Products to the Delivery Location specified in the Purchase Order; (C) all risks of loss or damage to any property received by Supplier from, or held by Supplier or its supplier for the account of, Plascene, until such property has been delivered to the Plascene; and (D) all risks of loss or damage to any of the Products or parts thereof rejected by Plascene from the time of shipment thereof to Supplier until redelivery thereof to Plascene. If Supplier does not comply with the Delivery Date(s) or any other terms set out in the Purchase Order Terms, Plascene may, in Plascene’s sole discretion: (i) approve a revised Delivery Date; (ii) require expedited or premium shipment at Supplier’s sole cost and expense; (iii) refuse to accept the Products and cancel the Purchase Order, in whole or in part, by providing written notice to Supplier; and/or (iv) source and obtain comparable products, appropriate substitutes or any other products deemed necessary from other supplier(s) in types, volumes, quantities, and for a period of time acceptable to Plascene and take any action otherwise necessary to remedy Supplier’s breach, failure, or refusal to perform as specifically required under these Terms. If Plascene negotiates or secures an agreement with an alternative supplier or suppliers as set forth in the preceding sentence, Supplier shall within thirty (30) days of Plascene’s written request, pay to Plascene all documented costs and expenses in excess of the pricing for the Products established by these Terms and cover any other additional costs, expenses, payments, fees, and charges agreed to by Plascene under the new alternative supplier agreement (including all documented costs, expenses, and fees arising out of or related to the new arrangement, all reasonable attorney’s fees incurred as part of the negotiation and execution of the alternative supply agreement(s)), and all Third-Party Charges (as defined in Section

5.4 Acceptance of Products and Nonconforming Products. Plascene has the right, but not an obligation, at its sole option, to inspect all or any portion of the Products and/or Services received under the Purchase Order at any time on or after the Delivery Date. If Plascene determines, in its sole discretion, that any of the Products and/or Services delivered under the Purchase Order  are damaged, do not fully conform to these Terms, including, without limitation, the Purchase Order Terms, any applicable certificate of analysis, or the product identifier in the Purchase Order, or are otherwise nonconforming or defective in any respect as determined by Plascene (“Nonconforming Products”), Plascene may, at its option, reject the entire shipment of Products if any of the Products in the shipment are, in whole or in part, Nonconforming Products, or reject all or any portion of the Nonconforming Products and either (a) receive a refund of the price paid by Plascene for such Nonconforming Products plus any inspection, testing, shipping, handling, and transportation charges incurred by Plascene, including any Third-Party Charges; (b) require Supplier, at Supplier’s sole cost and expense, to immediately reperform the Services at the location specified by Plascene, on terms and conditions acceptable to Plascene and at no additional cost to Plascene and/or require prompt repair or replacement of such Nonconforming Products, including reimbursement of any Third-Party Charges as set forth herein; (c) purchase products and/or services similar to the Products and/or Services from another source (and apply such product purchases against Plascene’s quantity requirements or minimum order obligations under the Purchase Order, if any), and require Supplier to reimburse Plascene for any Third-Party Charges; and/or (d) retain, return back to Supplier, or dispose of the Nonconforming Products, as mutually agreed upon by the Parties, at Supplier’s cost, and require Supplier to reimburse Plascene for any costs expenses, and Third-Party Charges. Supplier shall reimburse Plascene for Third-Party Charge within fifteen (15) days of Plascene’s payment thereof. In each case, the exercise by Plascene of any other rights available to Plascene under these Terms or pursuant to applicable Law shall not be limited, and Plascene shall have the right to conduct further inspections after Supplier has carried out any remedial actions. Plascene shall ship, at Supplier’s expense and risk of loss, the Nonconforming Products to the nearest authorized Supplier location. If Plascene exercises its option to replace or repair Nonconforming Products, Supplier shall, promptly ship to Plascene, at Supplier’s expense and risk of loss, the replacement or repaired Products to the Delivery Location for the Purchase Order or a location otherwise designated by Plascene in a timely manner. Plascene’s inspection or failure to inspect and accept or reject the Products and/or Services shall not relieve Supplier from responsibility, nor impose liability on Plascene, for Nonconforming Products, including but not limited to any latent defects. For the avoidance of doubt, Plascene’s acceptance of any Products or Services will not be deemed to be a waiver or limitation of Supplier’s obligations pursuant to these Terms or the Purchase Order (or any breach thereof), including those obligations with respect to Supplier’s warranties and representations and Supplier’s duty to indemnify Plascene. For purposes of these Terms, “Third-Party Charge(s)” means payment by Plascene to a customer or other third party of any charge, penalty, fine, credit, credit, damage, or loss, including, without limitation, any warehousing, storage, or transportation costs and expenses.

6. Ingredients and Materials Disclosure. On Plascene’s written request, Supplier shall provide to Plascene, in such form, detail, and subject to timing requirements as Plascene reasonably requests, a list of all ingredients and materials incorporated in the Products and/or Services and the amount of such ingredients and materials. Supplier shall provide Plascene notice of, and information concerning, any changes in or additions to such ingredients and materials at least five (5) days prior to implementation of such changes and/or additions.

7. Price and Payment

7.1 Prices. 

Supplier shall sell the Products and/or Services to Plascene at the prices set forth in the Purchase Order or Appendix A (Products and Prices) attached hereto (the “Price(s)”). All Prices are firm and are not subject to increase for any reason, including changes in market conditions, changes in tariffs and duties, increases in raw material, component, labor, or overhead costs, because of labor disruptions, or fluctuations in production volumes or in currency rates, unless explicitly agreed to otherwise by Plascene in writing. Supplier agrees to treat Plascene as its most favored customer. Supplier  represents that all of the Prices, warranties, benefits and other terms being provided hereunder are equivalent to or better than the terms being offered by Supplier to any of its current customers (taking into account all discounts, rebates, and other indirect price reductions). If Supplier enters into an agreement with another customer providing such customer with more favorable or competitive terms, then these Terms will be deemed appropriately amended to provide such terms to Plascene. Supplier shall promptly, but in no event later than thirty (30) days after such an agreement with another customer, provide Plascene with any refunds, credits or benefits thereby created for Plascene. Upon request or audit by Plascene, Supplier will provide Plascene with such details (anonymized as necessary) as Plascene or its auditor may reasonably require in order to establish Supplier’s compliance with this Section. If said audit or request demonstrates that the Prices paid by Plascene are higher, it is agreed that Supplier shall make full repayment to Plascene in the amount found to be in excess of the lowest price no later than sixty (60) days from Supplier’s receipt of the written request for such payment from Plascene.

7.2 Taxes and Other Costs. 

Unless agreed to otherwise by Plascene in writing or in the Purchase Order: (a) as between the Parties, Supplier shall be the importer of record with respect to any imported Product or Service; and (b) Supplier is solely responsible for all shipping costs, insurance, sales, use, or excise taxes and any other similar taxes, fees, or charges imposed by any Governmental Authority, including any taxes imposed on, or with respect to, Supplier’s income revenues, gross receipts, employee or real or personal property or other assets. For the avoidance of doubt, Supplier shall be solely responsible for all packaging costs, insurance, import and export fees (including port fees), and any duties or tariffs imposed by any Governmental Authority on the Products and/or Services, charged or assessed to either Party, impacting these Terms, the Purchase Order, the Products, or Services, and Supplier shall not pass on such costs, duties, or tariffs to Plascene by any means, including through the Prices. To the extent that Plascene is required to pay to any Governmental Authority any duties, tariffs, fees, or penalties associated with the import of any Product or Service, Plascene will invoice Supplier for these costs, and Supplier will reimburse Plascene for those costs within thirty (30) days of Plascene’s payment thereof.  Supplier or Plascene shall pay for shipping charges in accordance with the commercial terms selected by the Parties under Section 5.2 or in the Purchase Order, if different.

7.3 Invoices and Payment. 

Supplier shall issue an invoice to Plascene on or any time after the completion of delivery of the Products as specified in Section 5 (Shipment and Delivery) and/or performance of the Services and only in accordance with these Terms and all other requirements of Plascene. Unless explicitly agreed otherwise by Plascene in the Purchase Order, Plascene shall pay all properly invoiced amounts due to Supplier within forty-five (45) days after the later of Plascene’s receipt of such invoice or acceptance of the Products and/or Services, except for any amounts disputed by Plascene in good faith. The Parties shall seek to resolve all such disputes expeditiously and in good faith. Supplier shall continue performing its obligations under these Terms and the Purchase Order notwithstanding any such dispute. Plascene’s payment does not release Supplier of any contractual or legal obligation or liability, nor will it limit Plascene’s right of inspection, acceptance, set-off, or any other right. All payments hereunder must be in US dollars.

7.4 Setoff Permitted. 

Notwithstanding anything to the contrary in these Terms, Plascene may, with prior notice to Supplier, set off or recoup any amount or liability it owes to Supplier against any liability for which Plascene determines in good faith Supplier is liable to Plascene, whether the liability is matured or unmatured, is liquidated or unliquidated, or arises under these Terms.

8. Intellectual Property

8.1 Background Intellectual Property. Plascene shall retain all right, title and interest (including all moral and intellectual property rights) in and to all inventions, original works of authorship, findings, conclusions, data, materials, discoveries, developments, concepts, improvements, trade secrets, techniques, technologies, processes and know-how, whether or not patentable or registrable under patent, copyright or similar laws, (collectively, “Inventions”) that (a) are in-licensed, created, authored, invented, conceived, reduced to practice, or otherwise developed or controlled (collectively, “Created”) by Plascene or its affiliates prior to the date of the Purchase Order or (b) are Created by Plascene or its affiliates independent of the Purchase Order (“Plascene Background IP”).

8.2 Foreground Intellectual Property. Plascene shall solely own all right, title and interest (including all moral and intellectual property rights) in and to any and all Inventions Created by or on behalf of any Party under these Terms and the Purchase Order (a) in the course of or as a result of performing the activities allocated to it under these Terms and the Purchase Order; (b) through or from the use, reliance on or otherwise related to Plascene’s Confidential Information or materials; (c) through funding provided by Plascene or the use of Plascene’s premises or property, or (d) constituting a derivative of, modification of or an improvement to Plascene Background IP (“Plascene Inventions”).  For clarity, Supplier shall have no right, title or interest in and to any Plascene Invention.

8.3 Assignment of Inventions. 

Supplier shall promptly make full written disclosure to Plascene, shall hold in trust for the sole right and benefit of Plascene, and agrees to and hereby assigns, transfers and conveys to Plascene, or its designee, all of Supplier’s worldwide right, title and interest in and to any and all Plascene Inventions. Supplier further acknowledges and agrees that all original works of authorship that are made by Supplier (solely or jointly with others) in the performance of these Terms and the Purchase Order (a “Work”) and that are protectable by copyright are “works made for hire,” as that term is defined in the United States Copyright Act.  However, to the extent that any Work may not, by operation of any applicable Laws, be a work made for hire, Supplier agrees to and hereby assigns, transfers and conveys to Plascene all of Supplier’s worldwide right, title and interest in and to such Work, including all intellectual property rights relating thereto.

8.4 License. 

Supplier hereby grants Plascene a worldwide, irrevocable, fully-paid, royalty-free, perpetual, non-exclusive right and license, with the right to grant sublicenses, under Supplier’s intellectual and proprietary rights to: (a) make, have made, obtain, use, sell, manufacture, cause to be manufactured, reproduce, modify, import and otherwise exploit (“Exploit”) products and services embodying or incorporating any and all of the Products or any of Supplier’s intellectual property rights therein; (b) repair, rebuild,  relocate and to have repaired, rebuilt, and relocated the Products; (c) use, sell, copy, distribute, create derivative works, display, sub-license and otherwise Exploit any and all intellectual property rights of Supplier in and to any Product in connection with Plascene’s products and services; and (d) use and practice Supplier’s Inventions and intellectual property rights to the extent necessary to perform Plascene’s activities hereunder. Supplier hereby represents and warrants to Plascene that neither the manufacture and sale nor the use, reproduction, or distribution of the Products will in any way infringe or misappropriate any intellectual property rights of any third party.

9. Confidential Information. 

These Terms, the Purchase Order Terms, the transactions contemplated hereby and thereby, and all non-public, confidential, or proprietary information of the Parties, including, but not limited to, Specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, financial information, customer names or lists, pricing, discounts, or rebates, disclosed by one Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), whether disclosed orally or disclosed or accessed in written, electronic, or other form or medium, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with these Terms and the Purchase Order (“Confidential Information”) are, during fulfillment of the Purchase Order and for a period of three (3) years from completion of the Purchase Order, except as set out in Section 18.2 (Survival) with respect to trade secrets, confidential, solely for the purpose of these Terms, the Purchase Order and the transactions contemplated hereby and thereby, and, may not be disclosed or copied by the Receiving Party other than to exercise its rights or perform its obligations under these Terms and the Purchase Order unless authorized by the Disclosing Party in writing. The Receiving Party shall, during fulfillment of the Purchase Order and for a period of three (3) years from completion of the Purchase Order, except as set out in Section 18.2 (Survival) with respect to trade secrets, protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own confidential information, but in no event with less than a commercially reasonable degree of care. Upon the Disclosing Party’s request, the Receiving Party shall promptly return all of the Disclosing Party’s documents and other materials received by the Receiving Party from the Disclosing Party. The Disclosing Party shall be entitled to specific performance and injunctive relief for any violation or threatened violation of this Section. The Receiving Party shall be responsible for any breach of this Section caused by any of its employees, agents, or representatives. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure; or (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party.

10. Compliance with Laws.  

Supplier shall at all times comply with all Laws applicable to Supplier’s operation of its business, to these Terms and the Purchase Order, and its obligations under these Terms and the Purchase Order, including Supplier’s performance of the Services and the manufacture and/or sale of the Products.  Without limiting the foregoing, Supplier shall comply with all government sanctions, export, and import Laws of all countries involved in the sale of the Products and the performance of the Services under these Terms and the Purchase Order or any resale of the Products by Supplier, all environmental and safety Laws, and all labor and employment Laws. Supplier assumes all responsibility for shipments of Products requiring any government import or export clearance. Without limiting Section 2 (Purchase Order Acceptance), Plascene may terminate the Purchase Order if any Governmental Authority imposes antidumping or countervailing duties or any other penalties or tariffs on the Products. Without limiting the generality of the foregoing, Supplier shall: (a) at its own expense, obtain and maintain all certifications, credentials, licenses, registrations, authorizations, approvals, and permits necessary to conduct its business relating to the manufacture and/or sale of the Products or otherwise in connection with these Terms; (b) ensure the Products comply with applicable Laws affecting the manufacture, sale, packaging, and labeling of the Products; and (c) not engage in any activity or transaction involving the Products, by way of manufacture, shipment, use, or otherwise, that violates any Law.

11. Representations and Warranties. Supplier represents and warrants to Plascene that: (a) the Products are and will, for a period of, unless agreed to otherwise by Plascene in the Purchase Order or in an Appendix attached hereto or thereto, twenty-four (24) months from Plascene’s acceptance of the Products or such for such longer period as provided by Plascene to its customers or any end users: (i) be merchantable and fit and safe for their intended purpose, (ii) conform to their appliable Specifications, drawings, designs, samples and other requirements specified by or agreed to by Plascene, (iii) be free from defects in material, design, and workmanship, (iv) comply with all applicable Law, (v) be manufactured following good manufacturing practice that is at least consistent with industry standards, and (vi) maintain their composition and quality for the duration of their shelf life; (b) no claim, lien, or action exists or is threatened against Supplier that would interfere with Plascene’s use,  distribution, or sale of the Products or Services or any products incorporating or utilizing the Products or Services; (c) no actions, proceedings, or governmental investigations, or orders, judgments, or consents of any Governmental Authority, exist, are pending, or threatened which do or would affect the actions contemplated by these Terms or the Purchase Order or restrict manufacture, use, or sale of the Products or Services; (d) the Products, the Services, or Plascene’s use, distribution, or sale of the Products  or Services do not and will not infringe or misappropriate any third party’s intellectual property rights; (e) Plascene will receive good and valid title to the Products, free and clear of all encumbrances, liens, and claims of any kind; (f) Supplier does and will perform the Services and manufacture, package, label, store, and sell the Products in compliance with, and will otherwise observe and abide by, all Specifications and all applicable Laws of any Governmental Authority acting thereunder; (g) Supplier does and will obtain and maintain all certifications, credentials, licenses, registrations, authorizations, approvals, and permits necessary to conduct its business relating to the performance of the Services and the manufacture and/or sale of the Products or otherwise in connection with these Terms and the Purchase Order; and (h) Supplier shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with best industry standards for similar services and shall devote adequate resources to meet its obligations under these Terms and the Purchase Order. These warranties survive any delivery, inspection, acceptance, or payment of or for the Products and/or Services by Plascene. These warranties do not constitute a waiver of any other rights of Plascene, expressed or implied. These warranties shall run to Plascene, its customers, and users of its products. These warranties are cumulative and in addition to any other warranty provided by Law or equity. Any applicable statute of limitations runs from the date of Plascene’s discovery of the noncompliance with the foregoing warranties. Supplier shall assign to Plascene all rights and warranties related to any: (a) raw materials or ingredients purchased from a third party and included in the Products; and (b) materials or equipment purchased from a third party and included as part of the Services.

12. Audit and Inspection.

 Subject to compliance with applicable Law, Supplier agrees that Supplier’s (and Supplier’s suppliers’) facilities, materials, books, and records, to the extent related to the performance of these Terms, the Purchase Order, the Products, and/or the provision of the Services, shall at all practical times be subject to review, inspection, and audit by any authorized representative of Plascene, any authorized representative of Plascene’s customer, or any authorized Government Authority representative. Such access shall be granted during normal business hours and any such audits shall be conducted at mutually agreeable times and shall not unreasonably interfere with Supplier’s normal business activities. Under no circumstance shall Plascene’s customer or any Government Authority representative enter the Supplier’s facility regarding Plascene’s Products and/or the Services without Plascene being present, unless specifically authorized in advance by Plascene.

13. Indemnification

13.1 General Indemnification. 

Supplier shall defend, indemnify and hold harmless Plascene and Plascene’s parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, Recalls (including all costs of Recalls and Recall Damages), liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs and Third-Party Charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with: (a) the performance of the Services and/or the manufacture, packaging, labeling, storage, transportation, sale, or use of the Products purchased from Supplier; (b)  the negligence, willful misconduct, breach, or non-fulfillment of any term, representation, warranty, or covenant under these Terms or the Purchase Order by Supplier, Supplier’s agents, or Supplier’s employees, including, without limitation, the failure to perform the Services or deliver the Products in the quantity, by the Delivery Date(s), or to the Delivery Location(s) set out in the Purchase Order or in compliance with any other Purchase Order Terms; (c) any bodily injury or death of any individual, or damage to real or tangible personal property, caused by the acts or omissions of Supplier, Supplier’s agents, or Supplier’s employees; and (d) any failure by Supplier, Supplier’s agents, or Supplier’s employees to comply with any applicable Laws. Plascene’s damages shall include, without limitation, consequential damages, including, but not limited to, loss of profits and claims made by Plascene’s customers. Supplier shall, if requested by Plascene, at Supplier’s own cost and expense, defend any such claim or action brought against Plascene or those using or selling Plascene’s products. Supplier shall not enter into any settlement without Plascene’s prior written consent. Notwithstanding anything to the contrary in these Terms, Supplier is not obligated to indemnify or defend any Indemnitee against any claim pursuant to this Section if such claim or corresponding Losses directly arise out of or result from Indemnitee’s gross negligence or more culpable act or omission (including recklessness or willful misconduct).

13.2. Intellectual Property Indemnification. 

Supplier shall, at its expense, defend, indemnify and hold harmless Plascene and any Indemnitee against any and all Losses arising out of or in connection with any claim that Plascene’s or Indemnitee’s receipt, use, or possession of the Products infringes or misappropriates the intellectual property rights of any third party. In no event shall Supplier enter into any settlement without Plascene’s or Indemnitee’s prior written consent.

14. Limitation of Liability. 

EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, OR AS OTHERWISE EXPLICITLY SET FORTH IN THESE TERMS (INCLUDING WITH RESPECT TO THIRD-PARTY CHARGES), IN NO EVENT IS EITHER PARTY LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, ENHANCED DAMAGES, OR LOST OF PROFITS OR REVENUES ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS OR THE PURCHASE ORDER, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY AGREED OR OTHER REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING LIMITATION SHALL NOT APPLY TO THE GROSSLY NEGLIGENT ACTS OR OMISSIONS OR WILLFUL MISCONDUCT OF EITHER PARTY. PLASCENE’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND THE PURCHASE ORDER FOR ALL CLAIMS OF ANY KIND WILL NOT EXCEED THE TOTAL AMOUNT PAID BY PLASCENE TO SUPPLIER UNDER THE PURCHASE ORDER.

15. Insurance. 

Unless agreed otherwise by Plascene in the Purchase Order, during fulfillment of the Purchase Order, Supplier shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in commercially reasonable amounts to cover its business operations and the obligations under these Terms, including any warranty and indemnification obligations, with financially sound and reputable insurers; provided, however, in no event shall the insurance coverages set forth in this section be in a sum less than one million dollars ($1,000,000) per occurrence, and with minimum excess or umbrella policy limits of not less than four million dollars ($4,000,000) per occurrence, insuring against personal injury, bodily injury and property damage; and applicable worker’s compensation in statutory limits. Upon Plascene’s request, Supplier shall provide Plascene with a certificate of insurance from Supplier’s insurer evidencing the insurance coverage specified in this Section. The certificate of insurance shall name Plascene as an additional insured. Supplier shall provide Plascene with five (5) business days’ advance written notice in the event of a cancellation or material change in Supplier’s insurance policy. Except where prohibited by Law, Supplier shall require its insurer to waive all rights of subrogation against Plascene’s insurers, Plascene, and any other Indemnitee.

16. Recall. 

If at any time Supplier reasonably believes that the Products may present a potential risk to health and safety of consumers or otherwise in violation of any applicable Law, Supplier must inform Plascene immediately and prior to reporting the matter to any relevant regulatory authority.  Plascene shall have the right to file any report with the relevant Governmental Authority if it determines, in its sole discretion, that such report is necessary or required, or Plascene may consent in writing to Supplier filing such a report, which Plascene shall have the right to review and revise.  If a Governmental Authority or court of competent jurisdiction requests, recommends, directs, or orders corrective action of any sort (including, but not limited to, recalls, market withdrawals, refunds, replacements, stop sales, removal of the Products from the supply or distribution chain, removal of the Products at the consumer level, or other similar action, each a “Recall,” and Products subject to a Recall are “Recalled,”) or if Plascene determines that a Recall is warranted, the Parties shall take all appropriate corrective actions, at Supplier’s cost and expense, which are reasonable under the circumstances.  Plascene shall have the right to review, revise, and approve any corrective action plan prior to its implementation.  Supplier shall have sole responsibility carrying out the Recall, including all costs and expenses related thereto, including costs attendant to replacing the Products (“Recall Damages”).  In no event shall the provisions under this Section 16 prevent any Party from fulfilling its statutory or regulatory obligations to cooperate with or report to the relevant Governmental Authority. For the avoidance of doubt, Plascene shall in no way be restricted from communicating with or otherwise cooperating with any Governmental Authority, and Plascene has the sole discretion to determine when such communications are appropriate and to engage in such communications when determined that it is obligated to do so.

17. Non-Solicitation. 

During fulfillment of the Purchase Order and for a period of two (2) years after its termination, completion, or expiration (the “Restrictive Period”) Supplier agrees not to, directly or indirectly, solicit, service, or engage in any business transaction with any customer of Plascene in a capacity that is the same as, similar to, or in competition with the work and activities provided under these Terms and the Purchase Order, including but not limited to sale or supply of the products or services the same, similar to, or otherwise competitive with the Products and/or Services hereunder, in each case as reasonably determined by Plascene. Without limiting generality of the foregoing, Supplier further agrees and acknowledges that, during the Restrictive Period, Supplier will not, directly or indirectly, in one or a series of transactions: (a) solicit or induce, or attempt to solicit or induce, any customer or prospective customer of Plascene to patronize or do business with any other company (or business) that is in competition with Plascene; or (b) request or advise any customer, supplier or vendor, or any prospective customer, prospective supplier or prospective vendor, of  Plascene to withdraw, curtail, cancel or refrain from doing business with Plascene in any capacity. The Parties agree and acknowledge that the restrictions contained in this Section are reasonable in scope and duration and are necessary to protect the legitimate business interests of Plascene. If any provision of this Section as applied to any party or to any circumstance is judged by a court to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other provision of these Terms. If any such provision, or any part thereof, is held to be unenforceable because of the duration of such provision or the area covered thereby, the court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and shall be enforced. Any unauthorized use or disclosure of Confidential Information in violation of these Terms or violation of this Section shall constitute a material breach of these Terms and will cause irreparable harm and loss to Plascene for which monetary damages may be an insufficient remedy. Therefore, in addition to any other remedy available, Plascene will be entitled to all available civil and equitable remedies, including temporary and permanent injunctive relief, without the necessity of posting a bond and/or any and all compensatory damages, including actual and consequential loss from misappropriation and unjust enrichment, and any and all legal fees, including without limitation, all attorneys’ fees, court costs, and any other related fees and/or costs incurred by Plascene in enforcing these Terms. For the avoidance of doubt, this Section 17 (Non-Solicitation) does not preclude Supplier from seeking employment or engagement with entities other than as set forth in this Section. The Parties agree that this Section 17 (Non-Solicitation) is reasonable in nature, and necessary to enable the Parties to form these Terms in order to compete in the market. Notwithstanding the foregoing, if any portion of this Section 17 (Non-Solicitation) is determined to be unenforceable by a court of competent jurisdiction, the Parties agree that such provision shall be modified to the minimum extent necessary to make it enforceable, and the remainder of the provision shall be enforced to the fullest extent permitted by Law, consistent with the original intent and spirit of this Section.

18. Miscellaneous.

18.1Further Assurances. 

Upon a Party’s reasonable request, the other Party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to these Terms.

18.2 Survival. 

Subject to the limitations and other provisions of these Terms: Sections 1 (Applicability), 2 (Purchase Order Acceptance), 4 (Performance), 6 (Ingredients and Materials Disclosure), 8 (Intellectual Property) 9 (Confidential Information), 10 (Compliance with Laws and Policies), 11 (Representations and Warranties), 12 (Audit and Inspection), 13 (Indemnification), 14 (Limitation of Liability), 15 (Insurance), 16 (Recall), 17 (Non-Solicitation), and 18 (Miscellaneous) of these Terms, as well as any other provision that, in order to give proper effect to its intent, should survive, shall survive termination, cancellation, or fulfillment of the Purchase Order. With respect to Confidential Information that constitutes a trade secret under applicable Law, the rights and obligations set forth in Section 9 (Confidential Information) hereof will survive fulfillment of the Purchase Order until, if ever, such Confidential Information loses its trade secret protection other than due to an act or omission of Supplier or Supplier’s representatives.

18.3 Notices. 

All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth in the Purchase Order or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, internationally recognized express courier, such as FedEx or DHL (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt of the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.

18.4 Severability. 

If any term or provision of these Terms or the Purchase Order is invalid, illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or the Purchase Order or invalidate or render unenforceable such term or provision in any other jurisdiction.

18.5 Amendment. 

No amendment or modification to these Terms or the Purchase Order is effective unless it is in writing and signed by an authorized representative of each Party.

18.6 Waiver.

 No waiver under these Terms or the Purchase Order is effective unless it is in writing and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. Neither of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from these Terms or the Purchase Order: (a) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under these Terms or the Purchase Order; or (b) any act, omission, or course of dealing between the Parties.

18.7 Cumulative Remedies.

 Unless expressly stated otherwise, all rights and remedies provided in these Terms and the Purchase Order, including, without limitation, Sections 2 (Purchase Order Acceptance), 3 (Availability of Products), 5 (Shipment and Delivery), and 7 (Price and Payment)  are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available under these Terms, at Law, in equity, by statute, in any other agreement between the Parties or otherwise.

18.8 Assignment. 

Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms or the Purchase Order  without the prior written consent of Plascene. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Supplier of any of its obligations hereunder. Plascene may at any time assign or transfer any or all of its rights or obligations under these Terms or the Purchase Order  without Supplier’s prior written consent to any affiliate or to any person acquiring all or substantially all of Plascene’s assets.

18.9 Successors and Assigns. 

These Terms and the terms and conditions in the Purchase Order  are binding on and inures to the benefit of the Parties and their respective successors and permitted assigns.

18.10 No Third-Party Beneficiaries. 

Subject to the next sentence, the Parties do not confer any rights or remedies upon any other individual or entity except Plascene and Supplier and their respective successors and permitted assigns. The Parties hereby designate the Indemnitees (other than Plascene) as third-party beneficiaries of Section 13 (Indemnification) having the right to enforce Section 13 (Indemnification).

18.11 Governing Law; Dispute Resolution; Submission to Jurisdiction. These Terms, the Purchase Order, and all matters arising out of or relating to these Terms and/or the Purchase Order are governed by and construed in accordance with the internal Laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than those of the State of California. In the event of any dispute, controversy, or claim arising out of or relating to this these Terms, the Purchase Order, or the breach, termination or invalidity hereof and/or thereof (each, a “Dispute”), the Parties shall attempt to promptly and in good faith resolve such Dispute by negotiation between executives who have authority to settle the Dispute and who are at a higher level of management than the persons with direct responsibility for administration of these Terms and the Purchase Order. Any Party may give the other Party written notice of any Dispute not resolved in the normal course of business. Within seven (7) business days after the delivery of the notice or another mutually agreed upon time, the executives of both Parties shall meet at a mutually acceptable time and place (including virtual options) in an attempt to resolve the Dispute (the “First Meeting”). The above-described negotiation shall end at the close of the First Meeting unless the Parties wish to continue their good-faith negotiations to reach an amicable resolution of the Dispute. All offers, promises, conduct, and statements, whether oral or written, made in the course of the negotiation by any of the Parties, their agents, employees, experts, and attorneys are confidential, privileged, and inadmissible for any purpose, including impeachment or other proceeding involving the Parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable solely as a result of its use in the negotiation. At no time prior to the First Meeting shall either Party initiate mediation or litigation related to these Terms and/or the Purchase Order except to pursue a provisional remedy or injunctive relief or by mutual written agreement of the Parties. If, within thirty (30) business days or another mutually agreed upon time from the First Meeting, the matter is not resolved through good faith negotiation pursuant to this Section 18.11 above, the Parties shall submit the Dispute to binding mediation under the Commercial Mediation Rules of the American Arbitration Association (the “AAA”). The mediation shall be conducted by a single, neutral mediator mutually agreed upon by the Parties, with experience in plastics packaging solution industry. If the Parties are unable to agree on a mediator, the AAA shall appoint one in accordance with its rules. Mediation shall be an express condition precedent to litigation, except in the case of provisional, injunctive, or emergency relief or by mutual written agreement of the Parties. The Parties agree that the mediator’s fees and expenses will be shared equally between the Parties.  Any settlement agreement entered pursuant to the Parties’ mediation as set forth in this Section shall be binding and non-appealable, and its terms shall be deemed confidential. If the Parties cannot resolve any Dispute through mediation within forty-five (45) days after the mediator appointment or another mutually agreed upon period of time, either Party shall be entitled to file suit as set forth herein. Any legal suit, action, or proceeding arising out of or relating to these Terms and/or the Purchase Order shall be instituted in the federal courts of the United States of America located in California or the courts of the State of California, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

18.12 Counterparts. 

The Purchase Order may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 18.3 (Notices), a signed copy of the Purchase Order delivered by email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of the Purchase Order.

18.13 Force Majeure. 

No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached these Terms or the Purchase Order, for any failure or delay in fulfilling or performing any term of these Terms or the Purchase Order Terms when and to the extent such Party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, pandemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; or (d) national or regional emergency. Notwithstanding the foregoing, if Supplier is the Impacted Party, the following events shall not be deemed Force Majeure Events: (i) economic downturn; (ii) increased tariffs or duties; (iii) strikes, labor issues, or changes to Supplier’s workforce; (iv) government order, Law, or action; or (v) embargoes or blockades. The Impacted Party shall give notice within five (5) business days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section, the other Party may thereafter terminate the Purchase Order upon ten (10) business days’ written notice.

18.14 Relationship of the Parties. 

The relationship between the Parties is that of independent contractors. Nothing contained in these Terms or the Purchase Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.