Phoenix Polymer Compounding LLC

1. ACCEPTANCE. These Terms and Conditions of Purchase shall be incorporated as part of and apply to the purchases of goods or services under this Purchase Order (“Order”). Seller’s acceptance of this Order shall occur upon the earlier of Seller’s signing and returning an acknowledgment copy of this Order or Seller’s commencement of manufacturing or shipment of goods or performance of Services under the Order. ACCEPTANCE OF THE ORDER SHALL CONSTITUTE SELLER’S AGREEMENT TO COMPLY WITH AND BE BOUND BY THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR INCONSISTENT TERMS OR CONDITIONS CONTAINED IN ANY QUOTATION, BID, ACKNOWLEDGEMENT, OR OTHER DOCUMENT OF SELLER ARE OBJECTED TO BY BUYER AND SHALL NOT BE EFFECTIVE OR BINDING AS TO BUYER, UNLESS AGREED IN WRITING AND SIGNED BY AN OFFICER OF BUYER. Upon acceptance, the Order constitutes the entire agreement of Buyer and Seller. Trade usage and course of dealing or performance shall not be employed to vary, explain or supplement these terms and conditions. Any reference on the face of the Order to any bid, proposal, or offer of sale is deemed to be limited to the description of the goods and shall not effect or modify these terms and conditions, unless such documents are expressly listed on the face of the Order as appendices to the Order and so attached to the Order.

2. DELIVERY SCHEDULE. Buyer requires 100 percent on-time deliveries, and, therefore, TIME IS OF THE ESSENCE OF THIS ORDER. Seller shall not anticipate delivery, however, by purchasing materials or manufacturing goods in excess of what is reasonably required to meet Buyer’s delivery schedule. Items received in advance of such schedule may, at Buyer’s option, be returned at Seller’s risk of loss and expense or be accepted, with payment withheld until the scheduled delivery date.

3. INSPECTION AND REMEDIES. (a) Buyer (or Buyer’s customer) shall have the right, but not the obligation, to inspect goods and services at times and places designated by Buyer before, during or after delivery or performance. If an inspection takes place at the premises of Seller or its suppliers, Seller shall provide, at Seller’s expense, all reasonable facilities and assistance to such inspectors. Seller shall maintain a test and inspection system acceptable to Buyer. (b) If Buyer determines that any goods provided or services performed under this Order are defective or fail to conform to the requirements of the Order (including Seller’s warranties and covenants under these terms and conditions), Buyer may reject or revoke acceptance of such goods or services and may: (i) terminate all or any part of the Order (as provided hereunder); (ii) repair or return such goods to Seller for repair or replacement (at Seller’s risk of loss and expense of unpacking, examining, repacking, and reshipping); or (iii) retain such goods or services at an adjusted price. Seller shall be liable for any special, consequential and incidental damages of Buyer. These remedies are in addition to any other remedies provided hereunder, at law, or in equity. No acceptance of the goods by Buyer, whether in writing or by verbal process, shall relieve Seller of its obligations under this Order or foreclose Seller from exercising the remedies set forth herein.

4. TITLE, RISK OF LOSS. Title to the goods and risk of loss shall pass to Buyer upon final assembly and testing of the goods at Buyer’s location or such other location as designated by Buyer. Seller shall insure all goods against damage and deterioration until title passes.

5. WARRANTY. (a) Seller warrants with respect to goods and services provided under this Order that: (i) Seller has clear title, free of all liens and encumbrances; (ii) there are no claims of third parties of any nature whatsoever arising out of or related to the goods or services; (iii) all goods (including, without limitation, hardware, software, firmware and systems consisting of goods working together) and services are new and in strict conformance with the specifications, drawings, samples, designs or other descriptions furnished to or by Buyer, and shall be merchantable, of good quality and workmanship, free from defects in material, design, and workmanship, and fit for Buyer’s particular purpose; (iv) all services shall be performed in a competent manner in accordance with the requirements of the Order and fulfill the particular purpose intended; and (v) the sale or use of the goods or services covered by the Order shall not infringe or contribute to the infringement of any patents, trademarks, copyrights, or other proprietary rights. (b) These warranties extend to Buyer and to customers and users of Buyer’s products or services. (c) The warranty period shall be the greater of one (1) year or the term specified on the face of the Order or any technical specification attached as an appendix to the Order and shall commence on the date of Buyer’s acceptance of the goods or services. A new warranty period shall commence from the date of acceptance of any replacements of goods or services that are defective or that fail to conform to the requirements of this Order. (d) Seller’s warranties shall survive inspection, acceptance, and payment and shall be in addition to any other warranties of Seller, whether express, statutory or implied. (e) Remedies for breach of these warranties are cumulative and shall include those provided under these terms and conditions and any available at law or in equity.

6. TERMINATION (a) Buyer may terminate all or any part of its purchases under this Order, without liability to Seller, if Seller: (i) fails to deliver goods or perform services within the time and in the quantities and quality required by Buyer or to give adequate assurances requested by Buyer; (ii) breaches these terms and conditions (including Seller’s warranties and covenants); (iii) fails to make progress so as to endanger timely and proper performance of the Order, and such failure is not cured within ten (10) days (or any shorter period which is commercially reasonable under the circumstances) after notice from Buyer; or (iv) ceases to conduct its operations in the normal course of business, including inability to meet its obligations as they mature, or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller or a receiver for Seller is appointed or applied for, or an assignment for the benefit of creditors is made by Seller. In addition to obtaining a refund or credit and any other remedies provided herein or available at law or in equity, Buyer may, upon such termination, repurchase substitute goods or services elsewhere, on such terms as Buyer deems appropriate, and charge Seller with any excess costs and losses incurred by Buyer, including consequential and incidental damages. (b) Buyer may terminate all or any part of the Order for convenience, in which case: (i) Seller shall, as directed by Buyer, cease work and deliver to Buyer all satisfactorily completed goods or materials and work in process; and (ii) Buyer shall pay to Seller reasonable termination charges solely limited to the costs of materials, goods and labor that are incurred prior to Seller’s knowledge of such termination, provided that Seller takes reasonable steps to mitigate its damages. (c) To the extent not terminated by Buyer, Seller shall continue performance under the Order. (d) Any termination under Section 6(a) adjudged to be wrongful shall be deemed to then be a termination for convenience under Section 6(b), but with Buyer having the right to avail itself of all of its remedies under these Terms & Conditions of Purchase, at law or in equity.

7. LIMITATION OF LIABILITY. BUYER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS ORDER, INCLUDING ANY TERMINATION, REJECTION, OR REVOCATION OF ACCEPTANCE OF ALL OR ANY PART OF THE ORDER. IN NO EVENT SHALL BUYER’S LIABILITY HEREUNDER EXCEED THE PURCHASE PRICE OF THIS ORDER.

8. INDEMNITY AND INSURANCE. Seller shall defend, indemnify and hold Buyer and its directors, officers, employees, customers, affiliates, agents, contractors, successors and assigns harmless from and against any and all claims, liabilities losses, damages (including special, consequential and incidental damages), actions and expenses (including attorney’s fees) in connection with: (a) any breach by Seller of its warranties, covenants or obligations hereunder; (b) any injury (including death), property damage, or economic loss arising out of or related to (i) defective or nonconforming goods or services supplied by Seller under this Order, or (ii) acts or omissions of Seller or its employees or subcontractors in providing goods to or performing work, including work at Buyer’s or a customer’s premises or using Buyer’s property, unless resulting from the sole negligence of Buyer; (c) any failure to comply with laws under section 9; and (d) any infringement or contributory infringement of a patent, trademark, copyright, or other proprietary interest by reason of the manufacture, delivery, license, use, or sale of the goods supplied or services performed under the Order (“Infringement”), regardless whether (a) through (d) arise in tort (including negligence), contract, warranty, strict liability, or otherwise. Seller shall provide worker’s compensation, commercial general liability, automobile, public liability, and property damage insurance in amounts and coverages sufficient to satisfy all claims hereunder. Such policies shall name Buyer as an additional insured, shall be endorsed to be primary to any coverage provided by Buyer, and shall contain a waiver of any subrogation rights against Buyer.

9. INTELLECTUAL PROPERTY INFRINGEMENT. For any Infringement (as defined above), Seller shall, at Seller’s expense, obtain for Buyer a perpetual, royalty-free license with respect to such item, or shall replace or modify the item in a manner satisfactory to Buyer, so as to avoid the infringement without any degradation in performance. Seller’s obligations shall apply even though Buyer furnishes any portion of the design or specifies materials or manufacturing processes used by Seller.

10. COMPLIANCE WITH LAWS. (a) In providing goods or services under this Order, Seller shall comply with any and all applicable federal, state, local, and international laws, regulations, ordinances, executive orders, rules, orders, standards, conventions, directives, and treaties, including those relating to: (i) design, manufacture, transportation, sales, advertising, distribution, exportation, importation, labeling, packaging, certification, or approval of the goods or services; or (ii) employment discrimination, hours and conditions of employment, occupational health and safety, wages, environmental matters, product safety, motor vehicle safety, corrupt or deceptive practices, boycotts, antitrust, consumer products, or government subcontracting. (b) At Buyer’s request, Seller shall certify in writing Seller’s compliance with the foregoing. Seller’s invoices shall contain Seller’s certification that the goods purchased hereunder have not been produced, and will not be produced, in violation of any of the provisions of the Fair Labor Standards Act of 1938.

11. CHANGES. Buyer may, at any time, make changes in the Order, including changes in the quantity, delivery time or place, shipping or packing method, or any drawings, specifications or designs. If such a change causes a material increase or decrease in the cost of, or the time required for, performance of the Order, Seller shall notify Buyer in writing immediately. Any claim by Seller for an adjustment in time for performance or price must be asserted in writing within ten (10) days from date of notification of a change. No change shall be binding on Buyer unless agreed, in writing, by an officer of Buyer.

12. BUYER’S PROPERTY & INFORMATION. All tools, dies, molds, templates, equipment, specifications, data, drawings, designs, software or materials furnished by Buyer to Seller or paid for by Buyer, including replacements and materials attached thereto, shall remain and be marked as the personal property of Buyer. Such items shall be separately stored and insured by Seller, and Seller assumes all risk of loss and liability arising out of or related to the items, until such items are returned to Buyer. These items shall be used by Seller only for filling Buyer’s order and are subject to immediate removal, at Buyer’s written request, with each item to be delivered (at Seller’s expense) in its original condition, reasonable wear and tear excepted. Seller shall provide to Buyer, without restriction on use or disclosure, all information and documents that Seller has or shall develop or acquire related to the work Seller is performing under the Order. Such information and documents shall be deemed to be “works for hire” and be the property of Buyer, with Buyer having a right of use for any purpose, without liability to Seller. All information and documents Buyer may have disclosed or shall disclose to Seller in connection with the goods to be delivered or services provided under the Order shall be deemed confidential and proprietary and shall not be disclosed or used by Seller without the written consent of an officer of Buyer.

13. GOVERNMENT CONTRACTS. If the product or services to be delivered or performed under this Order are for the purpose of enabling Buyer to perform a government contract or subcontract, this Order incorporates by reference any clauses required to be included by such contract or subcontract or by any applicable law, ordinance, rule or regulation, including the equal employment opportunity clause in Section 202 of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, Revised Order No. 4 of December 4, 1971, Section 402 of the Vietnam Era Veteran’s Readjustment Assistance Act of 1974, as amended, Section 211 of Public Law 95-507, as amended, and Section 503 of the Rehabilitation Act of 1973, as amended, relative to affirmative action, non-discrimination, and equal employment opportunity and implementing rules and regulations thereof.

14. PRICES, INVOICES, AND SET-OFF. Unless the face of this Order contains a special notation by Buyer to the contrary, all prices are: (a) firm and not subject to increase or additional charges during the period of the Order; (b) in U.S. dollars; and (c) inclusive of all freight, duty, and taxes other than sales or use taxes Seller is required by law to collect from Buyer. Such sales or use taxes shall not be included in Seller’s invoice if the Buyer indicates that the goods or services ordered are exempt from such taxes. Applicable taxes shall be separately stated on Seller’s invoice. Seller shall deliver duplicate invoices to Buyer immediately upon shipment of goods or completion of services. Invoices shall be paid based on the later of the date of Buyer’s receipt of conforming goods and services or Buyer’s specified delivery date, and not on the basis of Seller’s invoice date. All purchases are on open account to be paid by Buyer’s check. Buyer shall be entitled to set off any amount owing at any time from Seller to Buyer or its affiliates against any amount payable at any time by Buyer under this Order.

15. PACKING, MARKING AND SHIPMENT. Seller shall suitably pack, mark, and ship goods in accordance with the instructions of Buyer and the requirements of the carrier transporting such goods and shall assure delivery free of damage and deterioration. Buyer shall not be charged for packing, marking or shipping unless separately itemized on the face of this Order. Buyer’s Purchase Order Number must appear on the container, the packing list, invoice and correspondence relating to the Order. Two copies of the packing list (which provides the quantity and description of the goods contained therein) shall be placed within the container

16. FORCE MAJEURE. Neither party shall be liable to the other party for failure to perform obligations under this Order due to events beyond its control (“force majeure events”). A party who is affected by a force majeure event shall give prompt notice to the other party, specifying the nature of the force majeure event and the expected delay in performance. The excusable delay in performance will be the duration of the force majeure event, provided that in the event the force majeure event lasts beyond the sixty (60) days, either party may cancel this Order upon notice to the other party and the Order shall then be governed by the provisions of Paragraph 5 herein regarding termination. Notwithstanding the foregoing, the following shall not be considered force majeure events: (i) strikes or lockouts or (ii) any foreseeable event, including possible delays in the supply of primary products or materials.

17. MISCELLANEOUS. (a) This Order shall be interpreted and governed by the laws of the State of Michigan, excluding its conflict of laws. Any legal action or proceeding by Seller shall only be brought be Seller in a state court located in a county where Buyer is located, or in a federal district court located in a district where Buyer is located. Seller specifically consents and submits to the personal jurisdiction and venue of the courts described in this Section. (b) The written consent of an officer of Buyer is required prior to: (i) any assignment by Seller of the Order or an interest therein or payment hereunder; or (ii) any subcontract of all or any part of the work called for in the Order. (c) No failure to enforce a breach of any provision of the Order shall be deemed a waiver or any other breach of such or other provisions.