IMG-NA, LLC
Terms and Conditions of Purchase
1. Offer and Acceptance; Exclusive Terms. Each purchase order or revision thereof (the “Order”) issued
by IMG-NA, LLC (“IMG”) is an offer by IMG to the seller or its applicable affiliate(s) named thereon (“Seller”)
for the purchase of goods (the “Goods”) or services (the “Services”) described therein and is governed by and
subject in all respects to these Terms and Conditions of Purchase (these “Terms”) exclusively as provided herein,
and together with any attachments or items incorporated by reference (including any specifications, drawings,
quality requirements or any other requirements of IMG or IMG’s customers (“Customers”)), and any supplier
manual or other policies of IMG provided or otherwise made available to Seller (together with any scheduling
agreements or similar documents and any releases issued by IMG under an Order, collectively, “Purchasing
Documents”), constitute the complete and exclusive agreement between IMG and Seller (the “Agreement”). Any
of the following acts by Seller shall constitute Seller’s acceptance of the Agreement, including these Terms, in its
entirety: (a) accepting or otherwise acknowledging the Order; (b) commencing work on the Goods or otherwise
initiating performance of any portion of the Services; (c) initiating shipment of the Goods; (d) by other conduct
which fairly recognizes the existence of a contract for the purchase and sale of the Goods or Services; or (e) failure
to object in writing to the Order within five (5) business days of issuance. For avoidance of doubt, a signed
acceptance of the Order is not required. Any objection by Seller to the Agreement, including these Terms, are
deemed waived by Seller upon the occurrence of any one (1) or more of the conditions described in (a) through
(e) above absent IMG’s express written agreement to amend or otherwise modify the Agreement. Acceptance of
the Order is strictly limited to and conditional upon Seller’s acceptance of the Agreement, including these Terms
exclusively. Any proposal by Seller to include additional or different terms or any purported attempt by Seller to
vary any of the terms and conditions of the Agreement, including these Terms, whether in Seller’s proposal,
quotation, acknowledgement, invoice, warranty statement or otherwise, shall be deemed void and IMG hereby
expressly objects and rejects such additional, different or varied terms and conditions; provided, however, that
such proposal or attempted variance shall not be deemed a rejection of or counteroffer to the Order by Seller. The
Agreement constitutes the entire agreement between IMG and Seller, and no prior offers, proposals, quotations,
statements, forecasts, courses of dealing, usage or trade shall be part of the Agreement; provided, however, for
avoidance of doubt, any award letter, source letter, nomination letter or similar document issued or signed by an
authorized representative of IMG relating to the Goods or Services will continue to apply after the Order has been
issued as modified thereby (with any conflict between such earlier award letter, source letter, nomination letter or
similar document and the Order being governed and controlled by the Order). In the event the Order is determined
by a court of last resort to comprise any acceptance of a prior offer by Seller, such acceptance is strictly limited
to the terms and conditions set forth herein.
2. Order Duration: Subject in all respects to IMG’s termination rights, the Agreement is binding on the
parties for (a) the duration expressly set forth on the face of the Order, or (b), if no duration is expressly set forth
on the face of the Order, one (1) year from the date the Order is issued if the Goods or Services, automatically
renewing for successive one (1) year periods thereafter unless IMG provides notice to Seller of its desire not to
renew (and thereafter, Seller shall reasonably cooperate with IMG to secure an alternate source of supply
acceptable to IMG and to otherwise ensure an orderly transition of supply pursuant to Section 18 below). Seller’s
obligations with respect to service and replacement Goods, including those under Section 15 below, will survive
expiration or termination of the Agreement.
3. Delivery; Order Quantity. Time and quantity are of the essence in Seller’s performance of the
Agreement. Seller shall deliver the Goods and perform the Services strictly in accordance with the quantities,
schedules, and other requirements specified in the Agreement, including delivering one hundred percent (100%)
of the quantities of Goods or Services requested on the delivery or performance dates specified by IMG. Seller
shall immediately notify IMG if Seller is or may be unable to deliver the Goods or perform the Services in the
quantities and on the dates and times specified by IMG. IMG may delay or otherwise change the rate of scheduled
deliveries or performance or direct temporary suspension of the same, none of which entitles Seller to any price
modifications or other compensation or additional amounts, including for idle time, rescheduling, storage,
handling or any other claimed surcharges, premiums, costs or expenses. IMG is not obligated to accept early or
late deliveries or performances, or partial or excess deliveries or performances. Risk of loss or damage and
responsibility for the inspection, sorting, storage, maintenance, insurance, re-performance or return of any
rejected deliveries or deliverables shall be borne solely by Seller. Without otherwise limiting IMG’s rights and
remedies, if conforming Goods are not delivered or conforming Services are not performed at the agreed upon
time: (a) any direct or indirect liabilities, damages and costs incurred by IMG or its Customers, including all costs
related to expedited or special transportation, manufacturing shutdowns, interruptions, reduced line-speeds or
other delays in production, costs of inspection, sorting, storage, replacements or re-performance shall be Seller’s
responsibility and paid or otherwise reimbursed to IMG on demand; and (b) IMG may, at its option, terminate the
Agreement or all or any portion of the Order without liability pursuant to Section 17 below and reject any Goods
or Services previously delivered or performed (even if initially accepted by IMG, paid for in part or in full or
utilized in part or in full, modified or otherwise altered). No act of IMG, including acceptance of early, late, partial
or excess deliveries or performance, any inspection (or lack thereof) or payment, shall act as a waiver of IMG’s
rights under this Section. Unless otherwise agreed in writing by IMG or specified on the face of the Order, all
deliveries of Goods under the Agreement shall be FOB Seller’s facility (Incoterms 2020) and title to the goods
shall pass to IMG at the delivery point but, notwithstanding anything to the contrary, risk of loss or damage shall
not pass to IMG until such Goods are finally accepted by IMG regardless of any transfer of title. Notwithstanding
anything to the contrary, IMG may purchase and use Goods from other suppliers for purposes of (i) evaluation,
qualification, trial production testing or similar purposes, (ii) protecting against actual, threatened, potential or
perceived shortages or disruptions in supply from Seller, including in connection with any breach or threatened
breach by Seller of the Order, or (iii) as otherwise permitted by the Order.
4. Forecasts. Any estimates, forecasts or other projections of anticipated requirements for Goods and
Services provided by IMG, if any, are, for avoidance of doubt, non-binding and provided for informational
purposes only and are subject to change for any variety of internal and external factors within and outside IMG’s
control. IMG makes no representation, warranty, express or implied, including as to the accuracy or completeness
of any such estimates, forecasts or other projections provided by IMG to Seller from time to time. No such
estimate, forecast or projection shall be deemed or otherwise construed as any form of commitment of IMG or
otherwise binding on IMG in any respect.
5. Labeling, Packaging, And Shipping. All Goods shall be suitably prepared for shipment and must be
labeled, packed, routed, and shipped in accordance with IMG’s instructions and specifications as provided from
time to time, and otherwise in compliance with applicable law. To the extent labeling, packaging, routing or
shipping requirements are not provided by IMG, Seller shall pack, label, route, and ship the Goods in accordance
with sound commercial practices and otherwise in a manner that will ensure that the Goods are adequately
protected against damage and deterioration in transit and to otherwise ensure the best method of cost-efficient
transportation. Seller will promptly provide IMG all necessary packing lists and other papers with each shipment
as required by applicable law together with any additional papers required to communicate the (a) applicable
Order, release or other identification number(s) provided by IMG, (b) IMG, Seller, and as applicable, Customer
part numbers, (c) description of Goods together with applicable serial, batch, lot or other production identification
numbers, (d) number of units (together with unit of measure), boxes, pallets, and containers in the shipment, (e)
Seller’s name and contact information, (f) bill of lading number, (g) any required affidavits, certifications of origin
or any other certifications, source inspection tags or similar documentation, (h) for repair, service, substitute or
other replacements, IMG’s and Seller’s RMA or similar identifiers, and (i) any other information requested by
IMG or its Customer(s) from time to time. Seller will pay all premium freight costs over normal freight costs as
necessary to meet IMG’s required delivery dates due to Seller’s acts or omissions or any issues with Seller’s
operations or supply chain. Seller shall take all necessary steps to ensure the accurate and timely delivery and
receipt of planning and shipping releases between Seller and IMG, including by adhering to applicable TS 16949
requirements. Seller is also obligated to send advance shipment notifications electronically at the time of shipment
in accordance with IMG’s instruction. Without otherwise limiting IMG’s rights and remedies, Seller shall
reimburse IMG on demand for any liabilities, damages and costs incurred as a result of Seller’s improper packing,
labeling, routing or shipping or any other non-compliance with this Section, including all costs related to
expedited or special transportation, manufacturing shutdowns, interruptions, reduced line-speeds or other delays
in production, costs of inspection, sorting, storage, rework, repair or replacements.
6. Changes By IMG. IMG reserves the right at any time, by delivery of notice to Seller, to change or
cause Seller to change the Goods or Services, including changes to (a) applicable specifications, drawings,
processing, methods of manufacturing, packing or shipping, approved sub-suppliers, (b) the place, date or time
of delivery, or (c) any inspection, testing or quality control requirements, or any other changes to the applicable
scope of work. Seller agrees to promptly make such changes. Any such changes shall be deemed not to affect the
time for performance or cost under the Order unless, within ten (10) days of IMG’s issuance of such notice, Seller
notifies IMG of any impact on the price or time for delivery or performance and a detailed claim for any requested
adjustment(s) thereto (together with supporting information and related documentation). If after reviewing such
claim and request, IMG determines in its sole judgment that an adjustment is warranted, the parties will discuss
an equitable adjustment taking into consideration any adjustments received by IMG from its Customer; provided,
however, any such adjustment shall only be considered if and to the extent the underlying change is the sole and
direct result of a requirement of IMG. No price increase shall take effect unless and until an Order revision is
issued by IMG to Seller, and Seller shall permit IMG to audit all relevant Seller records and facilities to verify
IMG’s claim and request. For avoidance of doubt, if Seller fails to respond within ten (10) days of IMG’s issuance
of a change notice, Seller shall be deemed to have accepted IMG’s changes with no adjustment on the price or
time for delivery or performance.
7. Changes By Seller. Seller shall make no changes to the manufacture of Goods or performance of
Services, including any changes in manufacturing or assembly processes or procedures, specifications, designs,
materials, internal or external finishes, fitments, forms or functions, location of manufacturing facilities, or
personnel performing Services, without IMG’s prior written consent. If Seller proposes a change, Seller shall
notify IMG at least one hundred twenty (120) days prior to the proposed date of implementation together with all
necessary information and documentation so as to permit IMG to fully assess the proposed change. Seller shall
provide, at Seller’s sole cost, any samples and additional information, testing or other data requested by IMG at
the times and in the form requested by IMG. In connection with and prior to implementation of any such change
request approved by IMG in writing, IMG may condition its approval on and otherwise require, among any other
requirements demanded of Seller, that (a) adjustments be made to the price or time for delivery or performance
of Goods and Services and (b) Seller, at Seller’s sole cost, prepare a safety stock of Goods satisfactory to IMG.
No changes may be made by Seller other than in accordance herewith.
8. Payment. Payment terms are net sixty (60) days from the date Seller’s invoice (in a form and containing
such information as IMG may require) is approved in writing by IMG. Payment may be made electronically or by
check on or before the due date unless otherwise specified by IMG in writing. Notwithstanding the foregoing,
payments may be withheld pending IMG’s receipt of satisfactory evidence that the Goods and Services were
delivered or performed, as applicable, absent any liens, claims or encumbrances. If no currency is specified on the
face of the Order, payment may be made at IMG’s option in U.S. dollars or the local currency of IMG’s receiving
facility. All amounts due Seller or its affiliates shall be considered net of indebtedness or obligations of Seller and
its affiliates to IMG and its affiliates, and IMG and its affiliates may set off against any amounts due or to become
due to Seller or its affiliates from IMG or its affiliates however and whenever arising and without notice. If any
obligations of Seller or its affiliates to IMG or its affiliates are disputed, contingent or unliquidated, including any
claims by IMG’s Customers before final determination of cause, IMG may defer payment of such amounts until
such claims are finally resolved (as determined by IMG in its sole discretion).
9. Invoices. All invoices must reference the applicable Order, descriptions and quantities of Goods
delivered or Services performed, bill of lading numbers, applicable currency, and all other information requested
by IMG from time to time. Invoices shall be delivered to IMG’s address for invoices set forth on the applicable
Order no earlier than the delivery or performance date of the Goods or Services invoiced or as otherwise directed
by IMG from time to time. As further set forth in Section 1 above, no invoice may reference any terms and
conditions that are additional to or different or varied from than these Terms.
10. Price. Seller shall not invoice IMG for Goods or Services at prices higher than stated in the Order,
which prices are complete and include all customs expenses, duties, tariffs, and taxes (other than U.S. sales and
use tax chargeable to IMG), storage, detention, demurrage, handling, preparation, packaging, boxing, crating,
cartage, transportation, travel, insurance, setup, and all other known or unknown direct and indirect Seller costs.
No surcharges, premiums or other additional charges or expenses of any type may be added to such stated prices
without IMG’s express prior written consent. Prices are not subject to increase and Seller expressly assumes the
risk of the occurrence or non-occurrence of any events (foreseeable or otherwise) that may affect prices or Seller’s
direct or indirect costs, including volume fluctuations, foreign exchange rates, raw material cost increases,
inflation, labor, utility and other production and supply costs, governmental acts (including tariffs, embargos or
quotas), and any other event which may impact the price or availability of materials, supplies, services or labor.
Seller represents and warrants that the prices charged for the Goods and Services do and shall not exceed the
prices charged by Seller to any other customer for similar quantities of like goods or services under similar
delivery requirements. In the event Seller reduces prices charged for the Goods or Services to any other customer,
Seller will immediately notify IMG and IMG is authorized to revise the Order, as applicable, to such lower pricing
and Seller shall be automatically deemed to have accepted such revised Order. IMG shall receive the full benefit
of all discounts, premiums, and other favorable terms of payment customarily offered by Seller to its customers.
Seller shall ensure that the Goods and Services remain competitive in price, technology, service, and quality to
other similar goods and services available to IMG (whether through outside, in-house or affiliate sources). If a
competitor to Seller quotes goods or services substantially similar to the Goods or Services that are of better value,
technology or quality, then within thirty (30) days of IMG’s demand, Seller shall meet or exceed such competitive
quotation. Should Seller fail to timely issue its revised offer, without otherwise limiting IMG’s rights and
remedies, IMG is authorized to revise the Order, as applicable, and Seller shall be automatically deemed to have
accepted such revised Order, or alternatively, IMG may, at its option, terminate the Agreement or all or any
portion of the Order without liability pursuant to Section 17 below.
11. Confidential Information. All non-public, confidential or proprietary information of IMG, including
specifications, samples, patterns, designs, plans, drawings, documents, data, hardware, software, material
formulations and compositions, manufacturing processes and methods, business operations, customer or supplier
lists, pricing, discounts or rebates, disclosed or otherwise made available by IMG or its agents to Seller, and any
representations, compilations, analysis, and summaries of the foregoing, whether disclosed orally or disclosed or
accessed in written, electronic or other form or media, or observed or otherwise learned, and whether or not
marked, designated or otherwise identified as “confidential” in connection with the Agreement shall be held by
Seller in strict confidence and used solely for the purpose of doing business with IMG pursuant to the Agreement,
and may not be otherwise used, disclosed or copied by Seller unless authorized in advance by IMG in writing.
Seller shall restrict access to and limit disclosure of IMG’s confidential information to only those of Seller’s
employees, directors, officers, managers, and advisors with a need to know the information to accomplish the
purpose of the Agreement, provided that they have been instructed and are bound in writing not to disclose the
confidential information or use it for any purpose other than as permitted under the Agreement; and provided
further that Seller shall at all times remain fully liable to IMG for any act or omission by such persons that would
constitute a breach of the Agreement if such act or omission had been taken or not taken by Seller directly. Upon
IMG’s request, Seller shall (with written certification thereof) promptly return all documents and other materials
received from IMG and promptly and securely destroy any compositions, summaries or other embodiments
thereof. IMG shall be entitled to injunctive relief for any violation of this Section. The obligations of non-use and
confidentiality set forth in this Section do not apply to information that is: (a) in the public domain; (b) known to
Seller at the time of disclosure as evidenced by Seller’s written records; or (c) rightfully obtained by Seller on a
non-confidential basis from a third party as evidenced by Seller’s written records. The obligations contained in
this Section shall not prevent Seller from disclosing IMG’s confidential information to the extent required by
applicable law or a valid order issued by a court or government agency of competent jurisdiction, determined on
advice of competent counsel, provided that Seller provides IMG prompt notice of such requirement so as to permit
IMG to seek an appropriate protective order to prevent disclosure of all or part of such confidential information
and Seller reasonably cooperates with IMG in obtaining such protective order, and provided further that Seller
will disclose only that portion of the confidential information that Seller is legally required to disclose and will
make reasonable efforts to obtain reliable assurances that confidential treatment will be accorded such confidential
information. Without limiting the foregoing, Seller will not advertise, publish or otherwise disclose to any third
party (other than to Seller’s professional advisors, on a confidential and need-to-know basis) in any manner the
fact that Seller has contracted to sell IMG the Goods and Services covered by the Order or use any trademarks or
trade names of IMG in any press release, advertising or other promotional materials. For the avoidance of doubt,
Seller’s obligations under this Section shall survive any expiration or termination of the Agreement. No
information, including commercial, financial or technical information, disclosed or otherwise made available in
any manner or at any time by Seller to IMG in connection with the Agreement (including any such disclosures
predating the Agreement) shall be deemed to be confidential or proprietary information, and Seller shall have no
rights against IMG with respect to any use or disclosure of such information.
12. Indemnification. To the fullest extent permitted by applicable law, Seller will defend, indemnify, and
hold harmless IMG, its affiliates and Customers, and the direct and indirect users of the products and services
sold by IMG, and each of their respective equity holders, employees, directors, officers, managers, and advisors,
affiliates, agents, customers, invitees, successors, and assigns from and against all liabilities, claims, demands,
losses, costs, damages, and expenses (including attorneys’ and other professional fees) of any nature or kind
(including special, incidental, consequential, indirect, personal injury, death, and property damages, royalties,
anticipated or lost profits, any voluntary or involuntary recall or other customer field service action costs, costs
allocated under warranty allocation programs, production delay, stoppage or interruption costs, inspection,
handling, reworking, and re-performance charges, settlements and judgments, and other costs associated with
IMG’s administrative time, labor, and materials) arising out of or resulting from: (a) any nonconforming or
otherwise defective Goods or Services; (b) any negligent or wrongful act or omission of Seller or its
representatives; (c) any breach or failure by Seller or its representatives to comply with any of the terms and
conditions of the Agreement (including these Terms), including any breach of Seller’s representations, warranties
or covenants; (d) any actual or claimed infringement of patent, trademark, copyright rights, misappropriation of
trade secrets, or any other claim relating to intellectual property of a third party, or any breach of confidentiality;
or (e) any actual or alleged noncompliance by Seller or its representatives with applicable laws of the jurisdictions
in which the Goods or the Services, and the products and services containing the Goods and Services, are to be
consumed, used, sold, and performed, including any alleged violation of California’s Proposition 65 or Seller’s
failure to disclose the presence of any chemical listed under California’s Proposition 65 in Goods or Services
provided to IMG. IMG may defend, or participate in the defense of (at Seller’s sole cost), any claim brought by
any third party entitling IMG to indemnification under this Section. Seller agrees that IMG’s action to defend
such claims (or participate in such defense) is in the interest of both IMG and Seller and is done to mitigate
damages. Seller waives the right to argue that IMG’s defense of such claims in any way limits IMG’s right to
seek indemnity from Seller or assert a claim against Seller. Seller’s obligation to provide indemnification as
described in this Section shall apply regardless of whether any claim arises in tort, negligence, contract, warranty,
strict liability or otherwise.
13. Warranty. Seller expressly warrants to IMG, IMG’s Customers, and the direct and indirect users of
the products and services sold by IMG that the Goods and Services shall: (a) strictly conform to all final
specifications, drawings, samples, and other descriptions furnished, specified, approved or otherwise adopted by
IMG; (b) strictly comply with all applicable laws of the jurisdictions in which the Goods and Services, and the
products and services containing the Goods and Services, originate or are to be consumed, used, sold, or
performed; (c) be merchantable; (d) be free from any defects in design, to the extent furnished by Seller or any of
its subcontractors or suppliers, even if the design has been approved by IMG; (e) be manufactured entirely of new
materials and free from any defects in materials and workmanship; (f) be fit, sufficient, and suitable for the
particular purpose for which the Goods or the Services are intended, including and as applicable, the specified
performance in the component, system, subsystem or end-product location and the environment in which they are
or may reasonably be expected to perform; (g) not and do not infringe, misappropriate, dilute or otherwise violate
any patent, trademark, copyright or other intellectual property of any third party; and (h) at the time of physical
delivery, be conveyed to IMG with good title, free of all liens, claims, and encumbrances whatsoever. Seller
acknowledges and agrees that it knows the particular purpose for which the Goods and Services are intended. For
avoidance of doubt, IMG’s provision or approval of designs, drawings or other documentation does not release
Seller from any liability. The warranty period shall be that provided by applicable law, except that if IMG is
obligated to provide a longer warranty period to or otherwise by its Customer, such longer period shall apply, and
in no event shall such warranty period be shorter than sixty (60) months from IMG’s final acceptance of the
applicable Goods or Services; provided, however, notwithstanding the foregoing warranty periods, upon the
occurrence of any serial defect(s) in Goods or Services (as determined by IMG in its sole discretion), the warranty
period shall continue indefinitely. The warranties provided in this Section are in addition to all other warranties
available under applicable law, and all such warranties shall survive inspection, testing, audit, review, acceptance,
use or incorporation of the Goods and Services by IMG. Seller shall promptly repair, replace, substitute, reperform, refund or credit nonconforming Goods or Services upon notice in IMG’s sole discretion and at Seller’s sole cost, without limiting or affecting IMG’s other rights or remedies, and the warranties provided in this Section
shall likewise apply to such repaired, replaced, substituted or re-performed Goods and Services. All
nonconforming Goods and Services shall be held at Seller’s risk and sole cost.
14. Remedies. The rights and remedies reserved to IMG herein are cumulative with and in addition to all
other legal or equitable remedies available to IMG under the Agreement (including these Terms) or applicable
law. Without otherwise limiting such rights and remedies, IMG may, at its option: (a) return nonconforming
Goods or Services to Seller, at Seller’s risk and expense, and require Seller to immediately issue IMG a refund of
all amounts paid or full credit against the price otherwise chargeable, or promptly repair or replace the Goods or
re-perform the Services at Seller’s risk and expense; (b) retain the Goods and Services and set off losses against
any amount due Seller or its affiliates by IMG or its affiliates; or (c) repair or replace the Goods and Services and
charge Seller with all direct and indirect expenses arising therefrom. In addition to IMG’s rights and remedies set
out herein, for avoidance of doubt, IMG has all of the other rights and remedies that applicable law grants buyers,
including the right to recover special, incidental, consequential, indirect or other damages resulting from any
breach by a seller, including any costs, expenses, and losses incurred directly or indirectly by IMG or its
Customers (including the costs of inspection, sorting, storage, rework, repair, replacement, re-performance,
voluntary or involuntary recall or other corrective service actions, and any personal injury, death or property
damage caused by such breach or any nonconforming Goods or Services). Without otherwise limiting any right
of reimbursement, refund, credit, set off or other manner of recoupment available to IMG or its affiliates,
including under this Section or Sections 3, 5, 8, 13, 21 or 28, IMG shall have the right, without prior notice, to
debit any amounts owing to IMG or its affiliates resulting from any breach by Seller of any of Seller’s obligations
under the Agreement as determined by IMG in its sole discretion. Seller shall notify IMG of any good faith dispute
with any debit within ten (10) days from the date of the debit or shall be deemed to have waived all rights to
dispute such debit. The parties shall seek to resolve any debit-related disputes expeditiously and in good faith,
provided that Seller shall continue performing its obligations during any such dispute. No delay by IMG in
exercising any of IMG’s rights or remedies shall be deemed a waiver of, or otherwise diminish or affect, such
right or remedy. In any action brought by IMG to enforce Seller’s obligations in connection herewith, Seller
acknowledges and agrees that monetary damages are not a sufficient remedy, and IMG shall be entitled to specific
performance and injunctive equitable relief as a remedy for any breach (without the necessity of showing damages
or posting bond), plus recovery of IMG’s actual attorneys’ fees and other professional fees. IMG shall have the
full statutory period of limitations to bring any action arising out of IMG’s agreement with Seller. Without limiting
the foregoing, a reasonable time for IMG to notify Seller of any breach is not less than two (2) years from when
IMG discovers the breach. IMG SHALL NOT BE LIABLE TO SELLER, UNDER ANY CIRCUMSTANCES,
FOR ANTICIPATED OR LOST PROFITS, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL,
INDIRECT OR OTHER DAMAGES OF ANY KIND.
15. Service And Replacement Parts. For at least ten (10) years following delivery, Seller hereby agrees
to sell to IMG or its designee one hundred percent (100%) of IMG’s service and replacement requirements for
the Goods, including component parts and materials, at the prices set forth in the Order (or applicable portion
thereof as described in the next sentence) for the first two (2) years plus any reasonable and actual cost differential
for specialized packaging as approved by IMG. Thereafter, pricing shall be as mutually agreed by the parties in
good faith taking into account any actual cost differential for manufacturing plus any reasonable and actual cost
differential for specialized packaging as approved by IMG. If Goods are systems or modules or otherwise
component based, Seller shall sell each module, component or part at a price that does not, in the aggregate,
exceed the complete Good price specified in the Order, less applicable assembly costs. Seller shall make service
literature and other materials available to IMG in a form requested by IMG (including electronically) upon request
from time to time at Seller’s sole cost. Seller’s obligation with respect to service and replacement requirements
shall survive any expiration or termination of the Agreement and shall be made pursuant to the Agreement
(including these Terms) as if no expiration or termination occurred.
16. Termination By IMG For Convenience. IMG may terminate the Agreement or all or any part of the
Order at any time and for any reason (or no reason) in its sole discretion by giving at least fifteen (15) days’ notice
to Seller. Unless otherwise directed by IMG in writing, effective upon such termination, Seller will: (a) promptly
terminate all work relating to the Order; (b) deliver to IMG all finished Goods reasonably held by Seller not in
excess of IMG’s firm releases; (c) deliver to IMG all work-in-process incorporating IMG’s intellectual property
and raw materials that cannot be consumed by Seller for other customers within one (1) year, provided in each
case such work-in-process and raw materials were ordered in accordance with IMG’s firm releases; and (d)
cooperate with IMG and its business partners as requested to transfer the provision of the Goods or Services to
the person(s) designated by IMG as further described in Section 18 below. In connection with such termination,
IMG shall pay Seller only: (i) the price for all conforming finished Goods actually delivered to and accepted by
IMG; and (ii) the reasonable cost of usable work-in-process and raw materials described in (c) above that are
actually delivered to and accepted by IMG (or otherwise destroyed with written certification of such destruction
as directed by IMG), in each case as determined by IMG in its sole discretion. IMG’s payment obligations upon
termination shall in no event exceed the amount that would have otherwise been due Seller had no termination
occurred, and are contingent in all respects on Seller submitting a claim for such amounts, if any, within thirty
(30) days of termination.
17. Termination For Cause. IMG may immediately terminate the Agreement or all or any part of the
Order, without liability to Seller and without prior notice, if Seller: (a) breaches, threatens to breach or repudiates
any of the terms and conditions of the Agreement (including these Terms) or any other agreement between IMG
or its affiliates and Seller, including any actual or threatened “stop shipments” or any other actual or threated
failure to timely deliver or perform in full; (b) fails to promptly (in no event later than two (2) business days) and
adequately respond to a demand for adequate assurance; (c) fails to demonstrate progress or to meet applicable
quality requirements so as to endanger timely and proper completion or delivery of Goods or completion of
Services and, in any such case, Seller does not cure or correct such failure to IMG’s satisfaction (in its sole
discretion) within ten (10) days (or such shorter period of time as IMG may determine, if commercially reasonable
under the circumstances) after IMG’s delivery of notice specifying such failure; (d) enters or offers to enter into
a transaction that includes a sale of a substantial portion of its assets used for the production of Goods or the
performance of Services or a material change in the direct or indirect ownership or control of Seller (including
control of more than twenty-five percent (25%) of Seller’s equity interests), any merger or consolidation directly
or indirectly involving Seller, or any other substantial change in Seller’s organization (each, a “Change of
Control”); (e) fails to remain competitive with respect to quality, technology, delivery, service or pricing of the
Goods or Services; or (f) undergoes an event of the insolvency, bankruptcy, reorganization, receivership or
liquidation, makes an assignment for the benefit of its creditors or ceases to carry on business in the ordinary
course, or permits a receiver to be appointed in respect of Seller’s property (each, an “Insolvency Event”). In the
event any termination made pursuant to this Section is later held by a court of last resort to have lacked cause as
described in this Section or otherwise, the parties acknowledge and agree that such termination shall be
automatically deemed a termination for convenience pursuant to Section 16 above. Seller may terminate the Order
only for non-payment by IMG and then only if (i) the amounts are material in amount and more than thirty (30)
days past due, (ii) Seller first delivers to IMG notice specifying (A) the amounts which are past due (together with
the relevant order or release number(s) and invoices number(s)) and (B) Seller’s intent to terminate the Order if
the past due amount is not paid, and (C), within thirty (30) days of IMG’s actual receipt of such notice, IMG does
not either pay the past due amounts or notify Seller that the amounts claimed are disputed in good faith.
18. Transition Support. In connection with any expiration or termination of the Agreement or all or any
part of the Order, Seller will cooperate with IMG and its business partners as requested to transition the provision
of Goods and Services to the person(s) designated by IMG (or to IMG itself), at no additional cost to IMG,
including by: (a) continuing production, delivery, and performance of all Goods and Services as directed by IMG
in accordance with the Order, without premium or other condition, as if the expiration or termination had not
occurred, during the entire period required by IMG to complete an orderly transition (as determined by IMG in
its sole discretion) and ensure there is no interruption to IMG’s ability to obtain the Goods and Services as needed
in connection with IMG’s or its Customers’ operations; (b) promptly providing all requested information and
documentation regarding Seller’s operations and access to Seller’s facilities where Goods are manufactured or
Services are performed; and (c) providing accommodations for special manufacturing or performance capacity
and other transition support services as required by IMG.
19. Customer Requirements. Where Goods or Services will be sold, or otherwise incorporated into
products or services that will be sold, directly or indirectly to an automotive original equipment manufacturer or
a tiered automotive supplier, Seller shall take all necessary actions, provide all necessary information, comply
with all applicable requirements, and do all other things as IMG deems necessary or desirable and within Seller’s
control to enable IMG to meet IMG’s obligations under the terms and conditions of any nomination letter, award,
purchase order, release, supply agreement or other document or contractual obligation of any kind (collectively,
“Automotive Terms”) directly or indirectly applicable to IMG or its Customers from time to time in respect of
IMG’s direct or indirect supply of products or services to such original equipment manufacturer or Customer,
including any obligations relating to: delivery, packaging and labeling, warranties, remedies, indemnification,
intellectual property rights, inspections and audits, and replacement and service parts. IMG may, from time to
time, in its sole discretion, provide Seller with information regarding Automotive Terms that may be applicable
to Seller pursuant to this Section, but, in any event, Seller shall be at all times solely responsible for ascertaining
the Automotive Terms that may affect Seller’s obligations hereunder and hereby agrees to be bound by such
Automotive Terms as if they applied directly to Seller. In the event of any conflict between applicable Automotive
Terms and the Agreement, IMG retains the exclusive right in its sole discretion to have all or any such Automotive
Terms prevail to the extent necessary or desirable to resolve any actual or preserved conflict between such
Automotive Terms and the Agreement. In addition to any other rights or remedies available to IMG, if IMG’s
Customer directed, recommended or otherwise requested that Seller be the vendor for the Goods or Services: (a)
IMG will pay Seller only after and to the extent of, and in proportion to, IMG’s actual receipt of payment from
such Customer for those items into which such Goods and Services are incorporated; and (b) IMG shall extend,
and Seller shall accept such extension of, applicable pay terms to the same extent IMG’s pay terms with such
Customer are adjusted from time to time.
20. Intellectual Property. Seller hereby grants to IMG, its affiliates, agents, and Customers, and each of
their subcontractors an irrevocable, non-exclusive, worldwide license to use any intellectual property used in the
manufacture of the Goods or relating to the Services to make, have made, use, sell and exploit the Goods and
Services. The foregoing license to make or have made may be exercised only upon the transition of supply
pursuant to Section 18 above to IMG or the person(s) designated by IMG and is subject to IMG’s payment of a
reasonable royalty (as determined in IMG’s sole discretion) with respect to any of Seller’s intellectual property
protected by a currently issued valid U.S. patent and used in the manufacture of the Goods or the provision of
Services except to the extent such transition of supply occurs as a result of IMG’s termination for cause, in which
case such license shall be royalty free. Seller hereby further grants to IMG a permanent, paid-up, irrevocable,
non-exclusive, worldwide license to use, repair, modify, and sell any software incorporated in the Goods or
Services in conjunction with the use, sale or any other exploitation thereof, and all works of authorship, including
any software, computer programs, and databases, and all enhancements, modifications, and updates thereto, and
all other written work products or materials, which are created in the course of performing the Agreement,
separately or as part of any Goods or Services, shall be deemed “works made for hire” and shall be IMG’s sole
property. To the extent that such works of authorship do not qualify under applicable law as works made for hire,
Seller hereby assigns to IMG all right, title, and interest in any intellectual property rights in such works of
authorship. If such assignment is not possible under any applicable law, Seller grants an irrevocable, exclusive,
world-wide, royalty-free license to IMG with respect to such works of authorship. Upon IMG’s request, Seller
agrees to provide all documents and other information necessary for IMG’s (or its designee’s) use of such
intellectual property. Seller will provide IMG (on a non-confidential basis) all technical information requested by
IMG from time to time relating to the Goods and Services which is necessary or useful to IMG’s every use of the
Goods and Services, including with respect to the manufacture, design, and performance of such Goods and
Services, and any drawings, engineering validations, qualifications, applications, and compliance or other testing.
Seller will not assert and hereby irrevocably waives any claim against IMG, IMG’s Customers, and IMG’s
designees with respect to any information, including technical information, used, disclosed or otherwise made
available by Seller in connection with the provision of Goods and Services under the Agreement, excluding valid
claims of infringement concerning patented intellectual property not licensed pursuant to this Section. Seller
hereby irrevocably authorizes IMG, its affiliates, agents, and Customers, and each of their subcontractors to repair,
reconstruct or rebuild the Goods delivered under this Contract without payment of any royalty or other
compensation to Seller. Any idea, invention, concept, discovery, work of authorship, patent, copyright, trademark,
trade secret, know-how or other intellectual property that results from engineering, consulting or development
services paid for separately or as part of the price of purchased Goods and Services shall be IMG’s sole property.
Seller hereby assigns all right, title, and interest in and to any such intellectual property to IMG and will notify
IMG of the existence of such intellectual property and otherwise assist IMG in every reasonable way to perfect
IMG’s right, title, and interest in thereto (including by executing and delivering all additional documents
requested by IMG in connection therewith). Seller shall not manufacture or provide, or offer to manufacture or
provide, any goods or services that are based in whole or in part on IMG’s or its affiliates’ intellectual property
or any derivative thereof, whether for Seller’s own purposes (other than in furtherance of Seller’s obligations
under the Agreement) or any third parties (including IMG’s Customers). The foregoing restriction shall not apply
in respect of “off-the-shelf” or “catalogue” goods or services independently developed by Seller and routinely
manufactured in each case prior IMG’s issuance of the Order (“Commodity Goods and Services”).
21. Inspections And Audits. Seller shall provide upon request proof of inspection of Goods before
delivery. All shipments of Goods and performance of Services are subject to inspection and approval at or
following delivery or performance, as applicable, by IMG or its representatives (provided, however, in no event
shall inspection be required), and IMG may reject and refuse acceptance of nonconforming Goods or Services at
any time. Seller shall reimburse IMG for the cost of inspection of rejected Goods and Services. No inspection,
approval, delay or failure to inspect, or failure to discover any defect or nonconformance, shall relieve Seller of
any liability or obligations under the Agreement or otherwise impair or waive any right or remedy of IMG with
respect to the Goods or Seller’s performance of Services. Rejected Goods may be returned to Seller at Seller’s
risk and expense. At no additional cost, upon reasonable advanced notice to Seller (of at least twenty-four (24)
hours), IMG or its Customers may conduct or cause to be conducted inspections and audits at Seller’s facilities,
including reviewing (and making copies) of Seller’s books, records, aggregated or otherwise anonymized payroll
data, receipts, correspondence, and other electronic and non-electronic documents relating to the Goods and
Services, Seller’s obligations under the Agreement, any payment made to Seller, or any claim made by IMG or
Seller, accessing Seller’s relevant personnel, and reviewing Seller’s manufacturing, testing, inspection, quality
control, and reliability processes and procedures. Seller will preserve information subject to inspection and audit
under this Section (or otherwise under the Agreement) for the longer of eight (8) years or the life of the relevant
program plus eight (8) years or, if required by IMG’s Customer or applicable law, such longer applicable period.
22. Quality Standards; PPAP. Seller will at all times strictly conform to the quality control standards
and inspection systems, as well as related standards, policies, and systems established or required by IMG or its
Customers from time to time, including ISO 9001 or IATF 16949 quality certifications, as well as ISO 14644,
USP 797, and EU GMP, to the extent applicable, in each case as determined in IMG’s sole discretion. Without
limiting the foregoing, Seller agrees to meet or exceed all requirements of industry Production Part Approval
Processes (“PPAP”) as specified from time to time by IMG and its Customers, and agrees to promptly provide all
information and supporting documentation necessary to demonstrate Seller’s compliance therewith as requested
from time to time by IMG. Seller will preserve information subject to IMG’s request under this Section for the
longer of eight (8) years or the life of the relevant program plus eight (8) years or, if required by IMG’s Customer,
such longer period.
23. Services; Malicious Code. If the Agreement covers Services, (a) Seller represents and agrees that it
is an independent contractor, and that neither Seller nor any of Seller’s employees or agents shall be considered
agents or employees of IMG, and (b) Seller shall furnish, at Seller’s expense, all labor, materials, equipment,
transportation, lodging, meals, facilities, and other items necessary to perform the Services. Seller further
represents and warrants such Services shall be performed in accordance with the highest standards of professional
and ethical competences and integrity in Seller’s industry by individuals with the necessary knowledge, skill,
expertise, and training in a diligent, workmanlike, prompt, and professional manner. Seller shall provide
reasonable access to the persons performing Services and promptly replace any such person IMG determines is
unfit or unsatisfactory. Seller will promptly notify IMG if any intellectual property, including discoveries,
improvements, inventions, creations, writings, product designs, prototypes, specifications, drawings or other
works that Seller conceives, reduces to practice, makes or otherwise creates in connection with the performance
of Services, and such intellectual property will constitute deliverables owned by IMG. Seller will provide IMG
reasonable access to persons performing Services and promptly replace any such person that IMG considers unfit
or otherwise unsatisfactory. Seller will use standard industry best practices to ensure that no malicious code is
directly or indirectly provided, delivered or transmitted to IMG through any Goods, Services, software, hardware
or any other mode. As used herein, “malicious code” means any code which is designed to harm, or otherwise
disrupt in any unauthorized manner, the operation of a person’s network or computer programs or systems
(whether owned, leased, rented or otherwise hosted), or destroy or damage a person’s data in an unauthorized
manner.
24. Work On Premises. If performance of Services or delivery or installation of Goods by Seller involves
operations by its employees, subcontractors or other representatives on the premises of IMG or its Customer, (a)
Seller shall at all times enforce strict discipline and maintain good order among all persons engaged in the activity
on the premises and shall cause them to comply with all policies in force at the premises, including all fire
prevention and safety rules and regulations, and all applicable laws, (b) Seller shall take all necessary steps to
prevent any injury or damage to persons or property, and (c) Seller shall keep the premises free from accumulation
of waste materials and rubbish caused by its employees or subcontractors and upon completion shall promptly
remove all of Seller’s and its representatives’ equipment and surplus materials.
25. Materials And Equipment. Except as otherwise expressly provided in the Agreement, Seller shall
supply at its own expense all materials, equipment, tooling, dies, test and assembly fixtures, jigs, gauges, patterns,
casting patterns, cavities, molds, together with any accessions, attachments, parts, accessories, substitutions,
replacements, and appurtenances thereto, and all related documentation, drawings, specifications, samples, test
reports, hardware, software and facilities required to perform the Order (collectively, the “Seller Material”). Seller
grants IMG (or its designee) an irrevocable option to take possession of and title to the Seller Material that is
unique and used to manufacture the Goods or perform the Services upon payment of the net book value less any
amounts previously paid to Seller for the cost of such Seller Material, except where such Seller Material is
primarily used to produce goods or perform services that comprise Commodity Goods and Services.
Notwithstanding the foregoing, Seller expressly acknowledges and agrees that all materials, equipment, tooling,
dies, test and assembly fixtures, jigs, gauges, patterns, casting patterns, cavities, molds, together with any
accessions, attachments, parts, accessories, substitutions, replacements, and appurtenances thereto, and any
special items of a like nature that are (i) purchased by IMG from Seller pursuant to the Order (i.e., such goods
and/or services are subject Goods and/or Services of the Order), (ii) produced or otherwise obtained by Seller in
connection with performing Seller’s obligations under the Agreement, or (iii) otherwise furnished to Seller or
specifically paid for, in whole or in part, by IMG or IMG’s Customer ( collectively, “Tooling”) shall be held by
Seller on a bailment basis and remain the property of, with both title and the right of possession in, IMG (or, if
applicable, IMG’s Customer) and without limiting any other rights and remedies available to IMG (or, as
applicable, IMG’s Customer). Seller agrees to tag or stamp the Tooling as being IMG’s Tooling (or, as applicable,
IMG’s Customer) or otherwise identify the Tooling as IMG may further direct, including permanently affixing
identification thereto, and provide photo evidence of such identification to IMG. While in Seller’s direct or
indirect custody or control, all Tooling shall be held at Seller’s risk, fully insured by Seller against loss or damage
in an amount equal to the replacement cost thereof at Seller’s sole cost, conspicuously marked, and used solely
to the extent and as required in Seller’s performance of its obligations under the Agreement. Tooling shall be
subject to removal at IMG’s request at any time without notice. Seller shall not permit any liens, claims or
encumbrances to be placed upon any Tooling and Seller hereby waives any lien or other rights or claims it may
have in or to the Tooling, statutory or otherwise, and will notify any third parties that may come into possession
of the Tooling of IMG’s (or, as applicable, IMG’s Customer) ownership of the Tooling and obtain a waiver of
any lien rights related to the Tooling from such third party. Seller shall not change the location of Tooling to any
place other than Seller’s approved facility, or otherwise release custody of the Tooling to any third party, without
IMG’s prior written consent. For Tooling utilized in Seller’s performance of the Order, Seller shall, at Seller’s
sole cost, maintain the Tooling in good condition and repair, and shall replace any Tooling if, as, and when
reasonably required. Seller agrees that IMG or its representatives shall have the right to enter Seller’s premises
and remove the Tooling at any time without prior notice and such entry shall not constitute trespass. This
acknowledgement shall inure to the benefit of IMG’s and Seller’s permitted successors and assigns and shall
remain in full force and effect until such time as the Tooling has been finally accepted by IMG. Upon expiration
or termination of the Agreement or all or any part of an Order, as applicable, Seller shall retain on a bailment
basis for IMG’s benefit, at Seller’s sole cost, all related Tooling then in Seller’s direct or indirect custody or
control, if any, until IMG provides further written instruction. Upon receipt of such written instruction, Seller
shall, at Seller’s cost, prepare the Tooling for shipment and shall deliver it to the specified location(s) on such
dates as specified by IMG. All Tooling obtained by or otherwise made available to Seller in connection with
Seller’s performance of its obligations under the Agreement shall be returned in no less than the same condition
as originally received by Seller, reasonable wear and tear excepted. In the event Seller undergoes an Insolvency
Event, Seller agrees to immediately (x) assign to IMG upon request any rights Seller may have in the Tooling,
notwithstanding anything herein to the contrary, (y) do all things necessary upon demand to provide IMG
immediate access, and otherwise immediately return to IMG, the Tooling, and (z) notify all parties involved in
such proceedings that Seller holds the Tooling as bailee subject to the Order and these Terms, and that the Tooling
is, and has at all time been, IMG’s (or, as applicable, IMG’s Customer) sole property. Seller agrees to sign such
further documents and to do and perform all such further acts and things as may be necessary to give full force
and effect to IMG’s (or, as applicable, IMG’s Customer) rights herein. IMG does not guarantee the accuracy of,
or the availability or suitability of, the Tooling, and all such Tooling is supplied by IMG (if at all) “as-is” without
any warranty of any kind. TO THE EXTENT PERMITTED BY APPLICABLE LAW, IMG SHALL HAVE NO
LIABILITY TO SELLER OR ANY OTHER PERSON FOR ANY SPECIAL, INCIDENTAL,
CONSEQUENTIAL, INDIRECT OR OTHER DAMAGES OF ANY KIND WHATSOEVER RELATING TO
THE TOOLING. IMG DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO
THE TOOLING, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, AND SELLER WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS,
ALL CLAIMS OF NEGLIGENCE AND STRICT LIABILITY.
26. Additional Terms Applicable To Tooling. Tooling qualification is contingent upon receipt and
approval by IMG of Seller’s PPAP submission package or such other validation materials as required by IMG.
Subject in all respects to applicable requirements concerning service and replacement Goods, Tooling life
requirements shall be mutually agreed upon as part of the Agreement prior to any Tooling kickoff. Except with
respect to Tooling furnished by IMG to Seller, Seller shall issue or cause to be issued to IMG progress reports
concerning the development and manufacture of any new or replacement Tooling on a periodic basis as specified
by IMG from time to time in a format mutually agreeable to the parties. Notwithstanding anything to the contrary
in Section 8 above, payment terms for Tooling are net sixty (60) days from IMG’s final acceptance and approval
of the applicable PPAP submission package or such other validation materials as required by IMG. No Tooling
material or manufacturing process change may be implemented without IMG’s prior written approval. IMG
owned Tooling must be permanently identified as directed by IMG and tagged or otherwise labeled with the
specified IMG Tooling identification number (or such other information as IMG may specify) in the manner
directed by IMG. IMG’s Customer owned Tooling must be permanently identified as directed by IMG’s Customer
and tagged or otherwise labeled with the specified Customer Tooling identification number (or such other
information as IMG’s Customer may specify) in the manner directed by IMG’s Customer. For avoidance of doubt,
Seller shall maintain at Seller’s sole cost the production capability of Tooling at all times Seller is obligated to
sell IMG service and replacement requirements for the Goods pursuant to Section 15 above, including maintaining
such Tooling in good condition and repair, and replacing any such Tooling if, as, and when reasonably required.
27. Insurance. Seller shall purchase and maintain at all times (in commercially reasonable amounts if not
otherwise stated but in no event less than otherwise acceptable to IMG): (a) commercial general liability coverage
in the amount of at least five million USD ($5,000,000) or such other amount required by IMG, including product
recall and product liability coverage; (b) worker’s compensation coverage at statutory requirements; (c) all risks
property coverage including business interruption; and (d) professional liability coverage without any cyber
exclusion. Each of the forgoing policies must be maintained with a company rated “A- VII” or better by A. M.
Best, or reasonable equivalent. At IMG’s request from time to time, Seller shall promptly (in no event later than
two (2) business days) deliver a certificate of insurance identifying IMG as an additional insured and loss payee.
Seller shall cause the applicable insurer to provide thirty (30) days’ notice to IMG prior to cancellation or material
changes to applicable policies. Any cancellation or change shall not affect Seller’s obligation to maintain the
required insurance coverage. Any coverage written on a claims made form must be maintained for three (3) years
after expiration or termination of the Agreement. No coverage required by this Section shall in any way apply as
a limit to Seller’s liability or IMG’s entitlement to recovery.
28. Force Majeure. If either party is unable to perform its obligations under the Agreement as a result of
a force majeure event beyond the reasonable control of such party and without such party’s fault or negligence,
then any delay or failure to perform under the Agreement that results solely and directly from such force majeure
event will be excused for only so long as such force majeure event continues so long as the affected party gives
written notice of the delay to the other party as soon as practicable after the occurrence of the force majeure event
but in no event more than two (2) days thereafter (together with all information reasonably necessary to
understand and verify the same, and an estimate of the duration thereof). As used herein, “force majeure events”
are strictly limited to fires, floods, natural disasters, official declarations of war, civil riots, government order,
law, or actions, or pandemics or epidemics officially declared by the World Health Organization. For avoidance
of doubt, force majeure events do not include events that are foreseeable, organized labor activities, lockouts,
strikes or other labor or commercial disputes, changes in economic circumstances (including volume fluctuations,
foreign exchange rates, raw material cost increases, inflation, labor, utility and other production and supply costs,
tariffs or similar governmental acts, and any other event which may impact the price or availability of materials,
supplies, services or labor), Seller’s subcontractors’ or suppliers’ defaults, telecommunication, equipment or
banking system failures. Seller shall use best efforts to end the delay or failure and ensure the effects of such force
majeure event are minimized and shall resume performance of its obligations as soon as reasonably practicable
after the removal of the force majeure event. During any delay or failure to perform by Seller, IMG may (a)
purchase substitute goods and services from other available sources and reduce its order quantities for Goods and
Services respectively, with Seller reimbursing IMG for any additional costs to IMG for such substitutes or (b)
have Seller provide substitute goods and services from other available sources as it directs. Without limiting
Seller’s other obligations under this Section, in the event of any supply allocation by Seller in connection with a
force majeure event, Seller will give preference to IMG for all Goods and Services ordered prior to and for the
duration of such force majeure event until such time as Seller is operating normally. Notwithstanding the
foregoing or anything contained herein to the contrary, if Seller fails to promptly (in no event later than two (2)
business days of the occurrence of the force majeure event) provide adequate assurances to IMG in writing that
any delay or failure will not exceed thirty (30) days, or in the event any delay or failure lasts more than thirty (30)
days, IMG may terminate the Agreement or all or any part of the Order without any liability or obligation to
Seller, including any obligation to purchase, pay or reimburse Seller for undelivered finished Goods, work-inprocess or raw materials. For avoidance of doubt, the rights granted to Seller with respect to excused delays under this Section are intended to limit Seller’s rights under theories of force majeure, commercial impracticability,
impracticability, or impossibility of performance, or failure of presupposed conditions or otherwise, including
any rights arising under Sections 2-615 or 2-616 of the Uniform Commercial Code. Without limiting the foregoing
or any of Seller’s other obligations under the Agreement, sufficiently in advance of the expiration of any of
Seller’s labor contracts or immediately after Seller anticipates or learns of any potential or impending strike, labor
dispute, work stoppage or other disruption at Seller’s facility(ies) that could impact delivery of Goods to IMG or
Seller’s ability to otherwise perform, Seller will immediately commence and promptly complete production of an
inventory of finished Goods in quantities sufficient to ensure the continuous and full supply of Goods to IMG
during the duration of any such strike, dispute, stoppage or other disruption, and locate such inventory in an area
that will not be impacted thereby.
29. Non-Solicitation: During the term of the Agreement and for a period of two (2) years following its
expiration or termination, Seller shall not, without obtaining the prior written consent of IMG, directly or
indirectly, for itself or on behalf of any other person, solicit for employment or otherwise induce, influence, or
encourage to terminate employment with IMG, or employ or engage as an independent contractor, any current or
former employee of IMG with whom Seller had contact or who became known to Seller in connection with the
Agreement (each, a “Covered Employee”), except (a) pursuant to a general solicitation through the media that is
not directed specifically to any employees of IMG unless such solicitation is undertaken as a means to circumvent
the restrictions contained herein or conceal a violation hereof or (b) if IMG terminated the employment of such
Covered Employee before Seller solicited or otherwise contacted such Covered Employee or discussed the
employment or other engagement of such Covered Employee.
30. Assignment. Seller may not assign or delegate the Agreement, any portion of work in connection with
the Agreement, or any of Seller’s rights (including any rights concerning the assignment of receivables) or
obligations under the Agreement without IMG’s prior written consent. Notwithstanding any such consent granted
by IMG: (a) the person(s) to whom the Agreement or any portion thereof is assigned or to whom any obligations
are delegated must first agree in writing to be bound by the terms of the Agreement; and (b) Seller shall remain
at all times responsible for the performance of all obligations under the Agreement notwithstanding such
assignment or delegation. Any attempted assignment or delegation by Seller in contravention of this Section shall
be null and void. A Change of Control shall be deemed an assignment by Seller. The Agreement shall inure to
the benefit of the parties’ permitted successors and assigns.
31. Compliance With Laws And IMG’s Policies. Seller represents and warrants to IMG and its
Customers that the manufacture, delivery, performance, and sale of the Goods and Services shall at all times
strictly comply with all applicable laws of the country of origin, manufacture, destination, and use, including U.S.
laws of extraterritorial application, or which otherwise relate to the manufacture, performance, labeling,
transportation, distribution, importation, licensing, approval or certification of the Goods and Services or Seller’s
operations. Upon IMG’s request from time to time, Seller shall furnish IMG with specific declarations and
certifications of legal compliance or otherwise certify in writing its compliance with any or all of the foregoing.
Seller shall comply with all applicable domestic and foreign anti-bribery and anti-corruption laws, and other laws
governing improper payments, including the requirements of the U.S. Foreign Corrupt Practices Act, the UK
Bribery Act of 2010, and any other applicable anti-bribery and anti-corruption laws and regulations in other
jurisdictions. Seller shall abide by the requirements of 41 CFR 60–1.4(a), 60–300.5(a) and 60–741.5(a). These
regulations prohibit discrimination against qualified individuals based on their status as protected veterans or
individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion,
sex, sexual orientation, gender identity or national origin. Moreover, these regulations require that covered prime
contractors and subcontractors take affirmative action to employ and advance in employment individuals without
regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or veteran status.
Seller shall at all times comply with IMG’s supplier code of conduct (or equivalent policy) and each other written
or communicated policy of IMG applicable to IMG’s business partners, including those made available on IMG’s
website at www.img-na.com (or any successor website thereto), as each such policy is in effect or modified from
time to time.
32. Export; Import; Conflict Minerals. Without limiting the general compliance with law requirements
set forth in Section 31 above, Seller is responsible for compliance with all applicable U.S. export international
trade control laws, including the U.S. Department of Commerce’s Export Administration Regulations, the U.S.
Department of State’s International Traffic in Arms Regulations, and all economic and trade sanctions
administered by the U.S. Department of Treasury’s Office of Foreign Assets Control. Additionally, to the extent
any Goods are to be imported into the U.S., Seller shall, upon IMG’s request, comply with all applicable
recommendations or requirements of the United States Bureau of Customs and Border Protection’s CustomsTrade Partnership Against Terrorism initiative (or any successor thereof). Without limiting the general compliance with law requirements set forth in Section 31 above Seller is responsible for complying with the Dodd–Frank Wall
Street Reform and Consumer Protection Act and its implementing regulations (“Act”), Section 1502, which aims
to prevent the use of conflict minerals that directly or indirectly finance or benefit armed groups in the Democratic
Republic of the Congo, or an adjoining country, as defined in the Act. Compliance includes the prompt completion
of all conflict minerals reports requested by IMG.
33. Notices. Any notice, communication or statement required or permitted to be given under the
Agreement shall be in writing and deemed to have been sufficiently given when delivered in person or by
registered or certified mail, postage prepaid, return receipt requested, by overnight courier service, or by email
(with delivery receipt requested), addressed to the address of the party specified on the face of the Order.
34. General. The Agreement (including these Terms) contains the entire understanding of the parties
relating to the subject matter thereof and is intended as a final expression of the parties’ agreement and a complete
statement of the terms thereof, and all prior negotiations and proposals between the parties regarding the sale and
purchase of Goods and Services are superseded. The Agreement (including these Terms) may only be amended
or modified in writing signed by an authorized representative of IMG; provided, however, that notwithstanding
the foregoing, the parties hereby acknowledge and agree that: (a) any clerical errors contained in the Agreement,
including any Order, are subject to correction by IMG in good faith following identification of such error(s); (b)
IMG may modify these Terms from time to time by posting revisions to IMG’s website at www.img-na.com (or
any successor website thereto) prior to the date when any such modification shall become effective, and such
revised Terms shall apply to all Order revisions or releases issued on or after the effective date thereof, and Seller
further acknowledges and agrees it is responsible to review such IMG’s website periodically; and (c) IMG may
from time to time issue new or modify existing supplier manuals or other policies of IMG and such policies shall
become effective as and when made available to Seller. For purposes of the Agreement, the words “include,”
“includes” and “including” shall be deemed to be followed by the words “without limitation”, the word “or” is
not exclusive, the words “herein,” “hereby,” “hereto,” and “hereunder” refer to the Agreement as a whole, the
words “applicable law” shall be deemed to include any statute, law, ordinance, regulation, rule, code, order,
constitution, treaty, common law, judgment, decree, standard, other requirement or rule of law of any
governmental authority, and any action or deliverable required to be taken or delivered “promptly” shall be so
taken or delivered within five (5) business days unless a shorter period is provided. Headings are solely for the
purpose of reference, are not part of the agreement of the parties, and shall not in any way affect the meaning or
interpretation of the Agreement. IMG and Seller are independent contractors, and nothing contained herein makes
either party the agent or legal representative of the other party for any purpose. Neither party has authority to
assume or create any obligation on behalf of the other party. In the event of a conflict between the Terms and any
other Purchasing Document made part of the Agreement, the applicable Purchasing Document shall control.
IMG’s waiver of any breach by Seller shall not be construed as a waiver of any other breach, and no waiver by
IMG shall be effective unless it is in writing. The failure of IMG to require performance under any provision of
the Agreement shall in no way affect IMG’s right to require full performance at any subsequent time. The validity,
interpretation, and enforcement of the Agreement shall be governed by the law of the State of Michigan, without
regard to conflicts of law provisions, and the U.N. Convention on Contracts for the International Sales of Goods
shall not apply. Seller irrevocably submits and agrees to the exclusive jurisdiction of the Federal District Court
for the Eastern District of Michigan or, for state court, the Macomb County Circuit Court in the State of Michigan.
Seller shall pay IMG’s reasonable attorneys’ fees, costs, and expenses incurred in enforcing any provision of the
Agreement. If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to law
or public policy, or otherwise invalid or unenforceable, the remaining provisions will remain in full force and
effect, and the parties shall substitute the invalid or unenforceable provision with a valid provision that, as closely
as possible, achieves the same business purpose as the invalid or unenforceable provision. These Terms shall
survive and continue in full force and effect following the expiration or termination of the Agreement.