Standard Terms & Conditions of Sale & Purchase

1. Controlling Terms.

Unless otherwise agreed in writing on the face of the Purchase Order (“PO”) by Total Plastics Solutions, LLC (“TPS”) and the customer identified on the PO (“Buyer”), the terms and conditions contained herein (the “Terms”) with respect to the purchase and sale of products (“Products”) and services (“Services”) hereunder constitute the entire agreement between TPS and Buyer with respect to the subject matter hereof, and supersede all prior communications and agreements between the parties. To the extent there is any conflict or inconsistency between the terms of the PO and these terms and conditions, these terms and conditions will control unless the PO specifically references the provision herein to be changed.

2. Acceptance of PO.

The Buyer will issue a PO to TPS and the PO will be subject to TPS’s acceptance, which will occur by a written (or electronic) expression of acceptance or by the beginning of performance.

3. Specifications.

In the event TPS will manufacture Products, in whole or in part, based on Buyer provided designs or specifications (“Specifications”), Buyer agrees TPS will not be responsible for any defects in the Specifications. In the event TPS provides the design for the Products, Buyer agrees to review the design prior to TPS commencing manufacturing and to make known to TPS any deficiencies Buyer discovers. Buyer agrees to promptly complete its review of all such submittals by TPS, and will not hold TPS responsible for any project delays caused by their failure to review them promptly.

4. Shipping.

Except as otherwise agreed to and set forth in the PO, the Products will be shipped F.O.B. TPS’s facility in Lynchburg or Forest, Virginia. TPS will deliver the Products to or substantially complete the Services for Buyer on the date(s) indicated in the PO. TPS will consider other shipping terms at Buyer’s request, but reserves the right to modify quote as necessary to accommodate that request. TPS may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Title and risk of loss pass to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Virginia Uniform Commercial Code.

5. Payment.

Prices reflected in the PO are complete, and no additional charges of any type will be added without Buyer’s agreement to an appropriate change order. Estimates for time and material proposals are made in good faith, but are not guaranteed limits. Unless otherwise stated on the face of the PO, the time period for payment are net 30 days. TPS will have the right to invoice the Buyer for progress payments as agreed upon and set forth in the PO. Sales, use, excise or other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer are the responsibility of Buyer. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with TPS, whether relating to TPS’s breach, bankruptcy, or otherwise.

6. Warranty.

Except as otherwise agreed and set forth in the PO, TPS warrants that for a period of twelve (12) months after the delivery date: (a) all Products delivered and Services performed hereunder will (i) conform to the Specifications; (ii) be free and clear of all liens, encumbrances and security interests; (iii) be free from all defects in materials and workmanship, not caused by Buyer provided Specifications; and (b) the Products furnished hereunder do not infringe any patent, design, copyright, trademark or other intellectual property rights with respect to their use, sale, distribution, ownership or otherwise; provided, however, such warranty of non-infringement will not apply to protect Buyer against any intellectual property infringement claims resulting from Buyer-provided design or specification or from any modification to the Products or Services by Buyer or any third party. TPS assigns to Buyer any third-party warranties of any seller of products incorporated into the Products and Services provided by TPS hereunder, with regard to those products such third-party warranties will replace TPS’s direct warranty obligations to Buyer under this Agreement. THE FOREGOING WARRANTIES ARE THE EXCLUSIVE WARRANTIES MADE BY TPS AND ARE IN LIEU OF ALL OTHER WARRANTIES IMPLIED BY LAW, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL SUCH IMPLIED WARRANTIES ARE HEREBY DISCLAIMED. Buyer will give TPS notice of a warranty claim within a reasonable time of Buyer discovering the defect resulting in a warranty claim. TPS will, within a commercially reasonable time, and at TPS’s option and as Buyer’s sole remedy, repair or replace any nonconforming Products or Services. TPS is not responsible for wear and tear, misuse or abuse, or failure to properly maintain the Products. Unless authorized in writing or in the event of an emergency, TPS will not be responsible for any costs incurred by Buyer for repair or replacement performed by Buyer.

7. Indemnification.

1. TPS will defend, indemnify and hold harmless Buyer and its successors, assigns, directors, officers, employees, agents, customers, and affiliates from and against any and all third party claims, expenses, demands, legal proceedings and costs (each, a “Claim”) to the extent arising from or related to any actual or alleged: (i) death, personal injury, or property damage resulting from TPS’s breach with respect to any term of this Agreement; (ii) negligent acts or omissions of TPS; or (iii) infringement, misappropriation or other violation arising from or related to the Product or Services, except to the extent such Claims arise from Buyer’s breach of any term of this Agreement, the negligent acts or omissions of Buyer, or Buyer’s modification of Products or Services.
2. Buyer will defend, indemnify and hold harmless TPS and its successors, assigns, directors, officers, employees, agents, customers, and affiliates from and against any and all third party (including Buyer’s employees and contractors) claims, expenses, demands, legal proceedings and costs (each, a “Claim”) to the extent arising from or related to any actual or alleged: (i) death, personal injury, or property damage resulting from Buyer’s negligent acts or omissions (including failure to properly maintain the Products, failure to train its employees and contractors on the safe use and operation of the products, and failure to keep untrained persons from having access to the Products); or (ii) infringement, misappropriation or other violation arising from Buyer provided Specifications, except to the extent such Claims arise from TPS’s breach of any term of this Agreement, or the negligent acts or omissions of TPS .
3. Each party’s respective obligations under Section 9(a) & (b) are conditioned upon the party to be indemnified (i) providing the indemnifying party reasonable notice of each Claim for which it wants indemnification and the party to be indemnified reasonably cooperating in the defense of each Claim. Each indemnified party may also participate in the defense using its own counsel at its own expense. An indemnifying party will not settle any Claim without the other party’s prior written consent, which may not be unreasonably withheld, conditioned or delayed. The parties will ensure that any settlement of any Claim is kept confidential to the extent permitted under applicable Law.
4. Subject to the requirements of Section 9(b), if an infringement or misappropriation Claim is made by Buyer, TPS will, at TPS’s option and expense for each infringing or allegedly infringing item: (i) procure Buyer’s right to continue directly and indirectly using, importing, distributing, leasing, selling, offering for sale and otherwise disposing of it; (ii) replace it with a non-infringing version; or (iii) modify it so that it becomes non-infringing. Any replacement or modification must provide equivalent form, fit, function and meet TPS’s warranties under this PO.

8. Damages Waiver.

1. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR STRICT LIABILITY, WILL EITHER PARTY BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL, EXEMPLIARY OR CONSEQUENTIAL DAMAGES, ALSO INCLUDING WITHOUT LIMITATION, ANY TYPE OF DAMAGES FOR LOSS OF PROFIT, LOSS OF USE OF THE PRODUCTS, DOWNTIME, AND/OR DAMAGE TO OTHER PROPERTY OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT TPS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. IN NO EVENT SHALL TPS’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO TPS FOR THE GOODS AND SERVICES SOLD HEREUNDER
3. The limitation of liability set forth in Section 8(b) shall not apply to (i) liability resulting from TPS’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from TPS’s acts or omissions.

9. Compliance with the Law.

TPS warrants to the best of its knowledge that neither the Products and/or Services provided to Buyer nor their manufacture, fabrication, construction, transportation, delivery, installation, performance or intended use, will violate or cause TPS or Buyer to be in violation of any federal, state or local law, code, ordinance, regulation, standard, rule, requirement or order (“Laws”). Buyer will indicate on the face of the PO, whether FDA, USDA or any local laws, ordinances, rules or regulations affect TPS’s work. In the event of any conflict between the provisions of any Laws, the more or most stringent provisions will apply. TPS is not, nor does it seek to be, a Federal Contractor for OFCCP purposes.

10. Intellectual Property.

Each party owns its pre-existing intellectual property. To the extent pre-existing intellectual property of TPS is used or embodied in any Product or any implementation or embodiment thereof, TPS grants to Buyer and its customers, upon payment of the purchase price of the Product, a worldwide, royalty-free, fully paid-up, non-exclusive, perpetual, irrevocable, sublicensable license in any pre-existing intellectual property, but limited to the use of the Products.

11. Termination for Convenience.

Buyer will, at its option and in its sole discretion, have the right to terminate a PO or any part thereof for convenience at any time by provided notice in writing to TPS. In the event of such termination, Buyer will be liable to pay to TPS with respect to such partially completed Products or Services such proportion of the purchase price based on the stage of completion of the Products or Services, plus any storage fees, plus a termination for convenience fee equal to ten percent (10%) of the purchase price of the Products or Services. Buyer will reimburse TPS for inventories of, and commitments for, raw or semi-processed or partially completed materials for use in fulfilling uncompleted portions of a PO, which will be determined by allocating on a pro rata basis the total quantity of such material which TPS has in stock or on firm order to all of TPS’s outstanding and uncompleted orders for which such materials would be required, subject, however, to the limitation that the amount so allocated to the applicable PO will not exceed the amount necessary to perform the uncompleted portion of the applicable PO.

12. Change Orders.

By written instruction to TPS, Buyer may from time to time require changes in any of the Specifications for Products or Services or work ordered hereunder, or require additional Products or Services, and TPS will notify Buyer of any increases or decreases in costs caused by such changes and an equitable adjustment of the purchase prices, delivery or completion schedules, and other terms hereof will be agreed upon in a written amendment to a PO.

13. Inspection and Rejection of Nonconforming Goods.

1. Buyer shall inspect the Products within five (5) days of receipt (“Inspection Period“). Buyer will be deemed to have accepted the Products unless it notifies TPS in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by TPS. “Nonconforming Products” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
2. If Buyer timely notifies TPS of any Nonconforming Products, TPS shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to TPS’s facility located at 231 Jefferson Ridge Parkway Lynchburg, VA 24501. If TPS exercises its option to replace Nonconforming Products, TPS shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point.
3. Buyer acknowledges and agrees that the remedies set forth in Section 13(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 13(b), all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under this Agreement to TPS.

14. Force Majeure.

Either party’s obligations will be excused and will not be liable for any expense, loss or damage resulting from delay in delivery or prevention of performance caused by: fire; flood; storm; act of God; strike, labor dispute or labor shortage; lack of or inability to obtain, or delays in obtaining, materials, components, fuels, supplies or equipment; war, military operations, terrorism; civil unrest or riot; accidents; epidemics, pandemics, government-declared emergencies; transportation delays or shortages; act or failure to act of any government; and increase in the severity of any of the foregoing; or any act that is beyond a party’s reasonable control after exercising due care.

15. Waiver.

The waiver by either party of any of its rights under the PO in any one or more instances will not constitute a waiver by it of any other rights hereunder or of such rights on a future occasion. No waiver of rights will be binding unless in writing.

16. Insurance.

TPS will, at its expense, procure and maintain in full force and effect, for a period of no less than two (2) years following the supply of Products or completion of Services, or both if applicable, through companies and agencies licensed to do business in the state in which TPS operates, the following insurance coverage, unless varied by an applicable written amendment executed by both Parties:

1. Workers’ Compensation Insurance in TPS’s name with limits that satisfy the state requirements where the Services are being performed.
2. Employer’s Liability Insurance with limits not less than $1,000,000 per occurrence.
3. Comprehensive General liability insurance in TPS’s name and Broad Form Property Damage, with not less than $2,000,000 per occurrence Combined Single Limit.
4. Automobile Liability Insurance with an employer’s Non-Ownership Liability Endorsement in TPS’s name, with not less than $1,000,000 per occurrence Combined Single Limit.

The insurance policies described in (c) and (d) above will name Buyer as an additional insured and will afford Buyer with primary coverage, irrespective of other coverage maintained by Buyer or TPS. TPS will provide the Buyer with a certificate of insurance upon request. TPS will be responsible for maintaining insurance covering its personal property used by it in its work and will be solely responsible for damage to or loss of same from any cause. TPS hereby waives, and will cause its insurers to waive all rights of subrogation against Buyer. Required insurance limits of Buyer may be satisfied by TPS by combining primary and umbrella coverage.

17. Choice of Law – Dispute Resolution – Venue.

The validity, construction and performance of these terms and conditions and any PO will be governed by Delaware law, notwithstanding its choice of law provisions. The parties agree that the terms of the United Nations Convention on Contracts for the International Sale of Goods (CISG) will not apply. If any controversy, claim or dispute arises between the parties, officers of both parties shall meet to attempt to resolve the issue by agreement. Any such controversy, claim or dispute not resolved by a meeting of the parties will be submitted for mediation in an effort to amicably resolve such controversy, claim or dispute. In the event that mediation does not result in a resolution, then the dispute will be subject to resolution by litigation exclusively in the state or federal courts located in Lynchburg, Virginia. Each party hereby irrevocably submits to the jurisdiction and venue in such courts. EACH PARTY HERETO WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE HEREUNDER BY JURY. The parties will share the cost of the mediator in any such mediation. Each party agrees to be responsible for its own attorneys’ fees associated with any such mediation or litigation, and its own costs associated with any litigation. The prevailing party in any litigation shall be entitled to recover from the other party all of its attorney’s fees, opinion witness fees and costs incurred with regard to such litigation.

18. Relationship of the Parties.

Each Party will act solely as an independent contractor and neither party will have the right to act for or bind the other party in any way or to represent that the other party is in any way responsible for any acts or omissions of such party. It is understood and agreed that each party will be solely responsible for the wages and benefits of its employees.

19. Interpretation.

If any provision of these terms and conditions will be adjudicated to be invalid or unenforceable, such provision will be deemed amended to delete therefrom the portion thus adjudicated to be invalid or unenforceable. All remaining portions will be deemed enforceable. Section headings are for the convenience of the parties and do not modify the meaning of the terms and conditions.

20. Assignment.

Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of TPS. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

21. Amendment and Modification.

These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.