IMG-NA, LLC
Terms and Conditions of Sale
1. Applicability: These Terms and Conditions of Sale (“Terms”) are incorporated by reference into every quotation, acknowledgement, invoice or other sales document (collectively, “Sales Documents”) issued by IMG-
NA, LLC (“IMG”) to the buyer and/or its applicable affiliate(s) named thereon (“Buyer”). IMG’s quotation constitutes an offer or counteroffer by IMG to sell the goods (“Goods”) and/or services (“Services”) described
therein (Goods and Services, collectively, “Products”) to Buyer, subject in all respects to, and strictly in accordance
with, these Terms and the Sales Documents exclusively, and these Terms together with such Sales Documents are
the only terms and conditions that govern or otherwise apply to any sale of Products by IMG to Buyer. Any of the
following acts by Buyer shall constitute Buyer’s acceptance of these Terms and the Sales Documents in their
entirety: (a) acknowledging the quotation; (b) issuing a purchase order, release or other similar document for
Products on the same or substantially the same terms as reflected on the face of the quotation; (c) accepting delivery
of the Products; or (d) by any other conduct which recognizes the existence of a contract for the purchase and sale
of the Products. Once accepted, the quotation and other Sales Documents, the applicable final drawings,
specifications, statements of work, and assignment of tasks and responsibilities, as each may be amended from
time to time by mutual written agreement of the parties, and any other documents signed by an authorized
representative of each party relating to the sale and purchase of Products, are incorporated herein by reference and,
together with these Terms, constitute the “Agreement.” Neither IMG’s issuance of any Sales Document nor IMG’s
manufacture or delivery of Goods or performance of any Services shall constitute acceptance by IMG of any
additional or different terms and conditions attached to or purportedly incorporated into any RFQ materials,
purchase order, release or other purchasing document issued by Buyer (collectively, “Purchasing Documents”),
and any such terms and conditions are specifically excluded and are not incorporated into the Agreement. For
avoidance of doubt, IMG hereby objects to any additional or different terms proposed by Buyer in its Purchasing
Documents (or otherwise) as wholly unacceptable to IMG, and such proposed additional or different terms shall
not become part of the Agreement (or otherwise a part of any contract between IMG and Buyer) and shall have no
effect with respect to any sales by IMG or purchases by Buyer of any Products. IMG’s performance under any
accepted purchase order or release issued by Buyer is expressly limited to and conditioned upon Buyer’s
acceptance of the terms and conditions of the Agreement exclusively (including these Terms). Without limiting
and notwithstanding the foregoing, IMG reserves the right at any time to reject any order or release not issued in
compliance with the Agreement or any order or release that purports to include other terms not including in the
Agreement.
2. Price: Price quotations for the Products shall remain valid only for the period of time specified in the
quotation, and after such period or if no time period is specified, prices are subject to change without notice and
IMG shall invoice Buyer for Products based on prices in effect at the time of shipment or performance. Prices are
not subject to decrease for any reason, including prices charged for similar goods or services sold or otherwise
quoted to other customers of IMG (including Buyer’s affiliates), any productivity, quality or other periodic price
reduction programs, industry, commodity or other benchmarking activities, or Buyer’s receipt of a quotation for
similar goods or services at lower price. Except as expressly stated in the quotation, prices do not include supplying
Buyer with prototypes, development, pre-production, evaluation samples, test data, service Products, returnable or
expendable packaging, tooling or any development, engineering, testing, certification, qualification or other
services. Buyer further agrees it is responsible to reimburse IMG for all reasonable travel and out-of-pocket
expenses incurred by IMG in connection with the performance of Services. Except as expressly stated in the
quotation, Buyer, at its sole cost and expense, shall furnish all labor, utilities, materials, equipment, and rigging or
similar support and ancillary services as may be necessary for any delivery, assembly, installation, programming,
maintenance, repair or similar Services (including, electric and pneumatic services, structural requirements). Buyer
hereby acknowledges and agrees that the prices set forth in the Agreement are contingent upon Buyer actually
purchasing the total quantities during the applicable period as set forth in Buyer’s request for quote/proposal or
IMG’s quotation, whichever is greater. If Buyer fails to purchase such quantities during the applicable period,
Buyer agrees that the pricing on Goods delivered to, and Services performed for, Buyer shall be adjusted
retroactively to reflect the impact of lower volume on the costs and expenses of IMG’s supply and performance,
including with respect to raw material, labor, development and non-recurring engineering expenses, and other
direct and indirect costs and expenses of IMG. Buyer hereby agrees to pay IMG such additional amounts upon
demand following Buyer’s receipt of IMG’s invoice.
3. Payment: Payment terms are net thirty (30) days from date of delivery or performance unless otherwise
specified on the quotation. Payment is due in U.S. dollars via electronic funds transfer with no discount for earlier
payment. A one and one-half percent (1.5%) monthly service charge, or the maximum permitted by applicable
law, will be added for every month or part of a month that the amount due remains unpaid after its due date.
Notwithstanding the foregoing, IMG may require advance payment or additional collateral from Buyer in the event:
(a) IMG has reasonable doubt as to Buyer’s credit worthiness; (b) IMG determines in its sole discretion a
substantial risk of its claim to payment exists due to declining assets of Buyer; or (c) Buyer is in arrears with respect
to any payment owed IMG; and Buyer agrees to promptly provide to IMG all information reasonably requested by
IMG to make such determinations. If Buyer becomes delinquent in payment, IMG shall have the immediate right,
in addition to any other right it may have, without notice, to terminate the Agreement or otherwise cancel all or
any part of any order or release, to recall or withhold further deliveries or performance, and declare all unpaid
amounts for any Goods previously delivered and Services previously performed immediately due and payable.
Until the Products have been paid for in full, Buyer or any agent of Buyer: (i) will hold the Products subject to a
security interest or lien in favor of IMG allowing for the right of re-possession by IMG to the extent permitted by
applicable law, and (ii) will not alter, remove, destroy, or damage any identifying mark on the Products or their
packaging. IMG may take possession of the Products under this paragraph at any time after payment for the
Products or any other payment owed to IMG has become due, and Buyer shall cooperate with and provide IMG
necessary access to facilitate such repossession. Buyer acknowledges that the security interest granted hereunder
is a purchase-money security interest, that IMG may, but is not required to, evidence and/or perfect by the filing
of one or more financing statements or other filing(s) in connection with such security interest, and that Buyer shall
cooperate with and shall not contest such filing(s).
4. Invoice Disputes: Buyer shall notify IMG in writing of any dispute with any invoice (along with
substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the
date of such invoice. Buyer will be deemed to have waived all rights to dispute any invoice for which IMG does
not receive timely notification of dispute and shall timely pay all undisputed amounts. The parties shall seek to
resolve any invoicing disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer
shall continue performing its obligations during any such dispute, including Buyer’s obligation to timely pay all
due and undisputed invoice amounts.
5. Setoff: Buyer acknowledges and agrees that it may not set off or otherwise debit against or recoup from
any amounts due or to become due to IMG or its affiliates, any amounts due or become due to Buyer or its affiliates,
unless and until IMG receives sufficiently detailed supporting information and agrees in writing to such setoff,
debit or recoupment, and shall not exercise any purported right to set off, debit or otherwise recoup any amounts
in connection with any disputed, contingent or unliquidated claim. In the event Buyer fails to comply with the
foregoing and without authorization or otherwise improperly sets off, debits or recoups from amounts due or to
become due to IMG or its affiliates, IMG shall be entitled, in addition to all of its other rights hereunder or
otherwise, to suspend performance of its obligations under the Agreement until Buyer (or its applicable affiliate(s))
reverses such setoff, debit or recoupment. Further, any amounts due or to become due to IMG shall not be otherwise
reduced on account of any price reduction or compromise on receivables that Buyer may agree to with its
Customers, including in connection with any systems, assemblies, components, modules or other goods or services
incorporating or otherwise utilizing Products. Buyer shall pay all IMG’s costs of collection, including IMG’s
attorneys’ fees.
6. Delivery; Packaging; Risk Of Loss: All delivery dates and quantities are estimates only and are not
guaranteed. Notwithstanding the foregoing, IMG shall use reasonable efforts to meet Buyer’s requested delivery
dates and quantities provided that Buyer has complied with IMG’s then applicable lead-time requirements. Unless
Buyer specifies shipping instructions, shipment and delivery will be made by the carrier and in the manner
designated by IMG. Without limiting the foregoing, IMG shall not be liable for any delays or defaults in deliveries
except to the extent arising solely and directly as a result of IMG’s gross negligence or willful misconduct. Products
shall be packaged and shipped as specified in the quotation or, in the absence of such specifications, Products shall
be packaged in accordance with sound commercial practice. Unless otherwise specified in the quotation, all crating,
marking, labeling, corrosion protection, export or other special packaging will be an additional charge to Buyer.
Unless otherwise stated on the quotation, all sales of Goods shall be FOB IMG’s facility (Incoterms 2020). Title
and the risk of loss or other damage to Goods shall pass to Buyer upon delivery of the Goods as determined by the
applicable Incoterm.
7. Inspection; Root Cause Analysis: The remedies afforded Buyer under paragraph 9 below shall be
exclusive for any non-conforming Products but shall be unavailable to Buyer if Buyer inspected or reasonably
should have inspected the Products and could have discovered the non-conforming Products upon such inspection,
which failure shall be deemed an irrevocable waiver by Buyer of such or any other remedies. After identifying any
non-conforming Products and so notifying IMG as required under paragraph 8 below, Buyer will provide IMG the
results of its internal root cause analysis of the non-conformance(s) within five (5) days together with any other
information requested by IMG relating to the non-conformance(s). Buyer shall further cooperate with IMG in a
joint root cause analysis led by IMG, and in developing and implementing corrective action programs or other
plan(s) to remediate potential failures that may have contributed to such non-conformance(s), which cooperation
shall include, without limitation, providing IMG and its agents reasonable access to Buyer’s personnel and
operations.
8. Limited Goods And Services Warranty: IMG warrants to Buyer: (a) that IMG has good transferrable
title to the Goods delivered, free and clear of liens upon receipt of final payment for such Products; (b) that through
the first anniversary of the time of delivery or performance, as applicable, the Goods delivered and Services
performed will conform in all material respects to the final material specifications issued or otherwise approved
by IMG and set forth in the Agreement; and (c) Services will otherwise be performed in a workmanlike and
professional manner in accordance with generally recognized industry standards for similar companies performing
services. IMG shall not be liable for a breach of the foregoing limited warranty unless: (i) Buyer gives written
notice to IMG, describing the nonconformance in reasonable detail, within thirty (30) days following delivery or,
if Buyer’s initial inspection of the Products could not have uncovered the nonconformance, within seven (7) days
of Buyer’s discovery of the nonconformance or when Buyer reasonably should have discovered the
nonconformance, but in no event later than one (1) year following the date of delivery or performance, as
applicable; (ii) IMG is given a reasonable opportunity to examine the Products and Buyer (if requested to do so by
IMG) promptly returns nonconforming Goods to IMG’s place of business for examination at Buyer’s cost unless
such costs would be unreasonable as determined by IMG in its sole discretion; and (iii) IMG reasonably verifies
Buyer’s claim that the Products are nonconforming in IMG’s sole discretion. Notwithstanding the foregoing,
prototypes, development, pre-production and evaluation samples are provided “AS IS,” without warranty of any kind. Warranty obligations related to third-party equipment, components, materials, software, and any other third-party items or services furnished directly or indirectly by IMG shall be solely limited to those offered by such third-party provider and only to the extent assignable to Buyer, in each case subject to applicable limitations,conditions, exclusions, and disclaimers (“Third-Party Warranties”). Such Third-Party Warranties and IMG’s right
to receive the benefits thereof and make claims thereunder are hereby assigned to Buyer effective upon IMG’s
receipt of final payment for such Products. SPECIFICALLY EXCLUDED FROM ANY WARRANTY
OFFERED BY IMG UNDER THE AGREEMENT ARE THE FOLLOWING, FOR WHICH IMG SHALL HAVE
NO LIABILITY WHATSOEVER: (A) DAMAGES OR DEFECTS CAUSED BY A THIRD PARTY OR ANY
UNAUTHORIZED OR IMPROPER INSTALLATION, ALTERATION, MODIFICATION, REPAIR,
MAINTENANCE (INCLUDING FAILURE TO PERFORM APPROPRIATE MAINTENANCE) OR OTHER
SERVICE, STORAGE, HANDLING, USE OR OPERATION OF THE PRODUCTS BY BUYER OR ANY
THIRD PARTY; (B) DAMAGES CAUSED BY THE FAILURE OF THE PRODUCTS TO COMPLY WITH
APPLICABLE LAW, INCLUDING ENVIRONMENTAL, HEALTH, AND SAFETY LAWS; (C) DAMAGES
OR DEFECTS CAUSED BY ANY EQUIPMENT, COMPONENT, SYSTEM, OR ASSEMBLY NOT
MANUFACTURED OR SOLD BY IMG (“THIRD-PARTY COMPONENTS”), DAMAGES OR DEFECTS
CAUSED BY UTILITIES OR BUYER’S ENVIRONMENT, INCLUDING ANY UNDERLYING, ADJOINING
OR ADJACENT STRUCTURE, SURFACE, SUBSURFACE OR FOUNDATIONAL CONDITION, AND/OR
THE INTEGRATION, INCORPORATION, INTERACTION, CONNECTION, PLACEMENT, OR USE OF
CONFORMING PRODUCTS IN OR WITH ANY THIRD-PARTY COMPONENTS; (D) DAMAGES OR
DEFECTS ATTRIBUTABLE TO OR CAUSED BY (1) MISUSE, NEGLECT, ACCIDENT, ABUSE, OR
VANDALISM OR ANY TRANSIT-RELATED DAMAGE, (2) ACTS OF GOD OR INSURRECTION, (3)
NORMAL WEAR AND TEAR, OR (4) ANY OTHER ACTS THAT ARE BEYOND IMG’S REASONABLE
CONTROL; OR (E) DESIGN DEFECTS TO THE EXTENT PRODUCTS ARE DESIGNED BY BUYER,
BUYER’S AFFILIATE(S) OR ANY OTHER THIRD PARTY. CONFORMANCE OF THE PRODUCTS TO
BUYER’S WRITTEN SPECIFICATIONS OR INDUSTRY ACCEPTED TOLERANCES IS AN ABSOLUTE
DEFENSE TO ANY IMG WARRANTY LIABILITY. THE WARRANTIES SPECIFIED IN THIS
PARAGRAPH ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY
IMPLIED WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR
PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A
THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF
PERFORMANCE, USAGE OF TRADE OR OTHERWISE. NO AGREEMENT VARYING OR EXTENDING
THE FOREGOING WARRANTIES, OR THE REMEDIES OR LIMITATIONS CONTAINED HEREIN, WILL
BE BINDING UPON IMG UNLESS IN WRITING AND SIGNED BY A DULY AUTHORIZED OFFICER OF
IMG EXPRESSLY REFERENCING THIS PARAGRAPH.
9. Remedies: In the event that the Products are determined nonconforming by IMG in accordance with
paragraph 8 above following Buyer’s timely compliance with the notice requirements thereof, IMG’s sole liability
to Buyer and Buyer’s sole remedy for such nonconformance (whether or not the nonconforming Products have
been installed and whether or not the Products are the subject of a voluntary or involuntary recall, customer
satisfaction or other service campaign or similar action) is limited to, at IMG’s option: (a) the repair or replacement,
at IMG’s facility, of such nonconforming Goods, or the reperformance of such nonconforming Services; or (b)
refund or credit of the price actually paid by Buyer to IMG for such nonconforming Products. THE REMEDIES
SET FORTH IN THIS PARAGRAPH SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY TO THE
EXCLUSION OF ANY AND ALL OTHER REMEDIES, AND COMPRISE IMG’S ENTIRE LIABILITY FOR
ANY BREACH OF THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY BREACH OF THE
LIMITED WARRANTY SET FORTH IN PARAGRAPH 8 ABOVE.
10. Limitation Of Liability: In the event any remedy provided herein fails its essential purpose and
monetary damages may be imposed, except to the extent arising solely and directly as a result of IMG’s gross
negligence or willful misconduct, IMG’s liability, whether founded in contract or tort, arising as a result of or
relating to (a) the Agreement or any performance or breach thereof, (b) any design, manufacture, delivery, sale,
repair, replacement or use of Products, or (c) the furnishing of any Service, shall not exceed, in any given calendar
year, a maximum of two percent (2%) of the revenue actually received by IMG from Buyer during the immediately
preceding calendar year for the Products(s) giving rise to such remedy. No legal action arising as a result of or
otherwise relating to the Agreement, whether alleging breach of warranty or other breach, default or tortious acts,
shall be commenced against IMG more than one (1) year after delivery of the Products(s) giving rise to such claim,
or one (1) year after claimant could reasonably have discovered the basis for such action, whichever comes first.
NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT SHALL
IMG BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR
PUNITIVE DAMAGES, RECALL OR OTHER SERVICE CAMPAIGN RELATED EXPENSES, LOSS OF
USE, COST OF CAPITAL, COST OF ASSEMBLY, PLANT OR LINE SHUTDOWNS, STOPPAGES OR
SLOWDOWNS, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE OR CLAIMS OF BUYER’S
CUSTOMERS OR OTHER THIRD PARTIES FOR DAMAGES, ARISING AS A RESULT OF OR
OTHERWISE RELATING TO ANY BREACH BY IMG, WHETHER OR NOT THE POSSIBILITY OF SUCH
DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY
FORESEEN, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS
BASED (CONTRACT, TORT OR OTHERWISE), AND NOTWITHSTANDING THE FAILURE OF ANY
AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
11. Intellectual Property Rights: Buyer acknowledges and agrees that: (a) any and all of IMG’s
Intellectual Property Rights (defined below) are the sole and exclusive property of IMG or its licensors; (b) Buyer
shall not acquire any ownership interest in any of IMG’s Intellectual Property Rights under the Agreement or
otherwise (notwithstanding any payment by Buyer relating to development, non-recurring engineering or similar
charges), or any other rights in or to IMG’s Intellectual Property Rights, except for the limited license described in
this paragraph, and all right, title to, and interest in all Intellectual Property Rights and related materials (including
all plans, diagrams, specifications, designs, data, drawings and models) which are developed, designed or generated
by IMG prior to and/or in the performance of the Agreement shall be owned solely by IMG as legal and beneficial
owner; and (c) Buyer shall use IMG’s Intellectual Property Rights solely for purposes of using the Products and
only in accordance with the instructions provided by IMG, if any. Buyer is hereby granted a limited, revocable,
non-exclusive, non-transferrable license to use, sell and repair the Products and as required to otherwise incorporate
the Products into Buyer’s goods and services, including as to any software, whether separately provided or
embedded as firmware; provided, however, such license is limited to the specific business location(s) set forth in
the Agreement and no other locations. If IMG, or IMG’s licensors, from time to time make available any patches,
fixes or updates to software included with the Goods, Buyer must install the patches, fixes or updates at Buyer’s
own cost in a timely manner for proper operation of the Goods and as a condition to continuation of the forgoing
license and any warranties set forth in the Agreement. Provided software may include certain third-party software
that is integrated or embedded therein or provided therewith. Each respective third party shall retain all of its
intellectual property and proprietary rights in its software which may be subject to additional license terms of such
third party. Buyer will not: (i) copy, display, transfer, adapt, modify, distribute or create derivatives of software
included with the Goods; (ii) reverse engineer, disassemble, decompile, or otherwise translate the software’s object
code; or (iii) access or use the software to create competing software, products or services whether for internal or
commercial use. “Intellectual Property Rights” means all industrial and other intellectual property rights
comprising or relating to: (A) patents; (B) trademarks; (C) copyrights, works of authorship, expressions, designs
and design registrations, whether or not copyrightable; (D) trade secrets; and (E) design rights and all industrial
and other intellectual property rights, interests and protections that are associated with, equivalent or similar to, or
required for the exercise of, any of the foregoing. IMG shall conduct, at its own expense, the entire defense of any
claim, suit or action alleging that the use or resale by Buyer or any subsequent purchaser or user of the Products
directly infringes any U.S. patent issued at the time of delivery of such Products, but only on the condition that:
(I) IMG receives prompt written notice of such claim, suit or action and full opportunity and authority to assume
the sole defense thereof, including settlement and appeals, and all information available to and the cooperation of
Buyer for such defense; (II) the Goods were made or Services performed according to a specification or design
furnished solely by IMG; and (III) the claim, suit, or action is brought against Buyer. Provided all of the foregoing
conditions have been met, IMG shall, at its own expense, either settle such claim, suit or action, or pay all
unappealable direct damages finally awarded by a court of last resort (“IMG’s IP Indemnification Obligation”). If
otherwise permitted use or resale of such Products is finally enjoined, IMG shall, at IMG’s option, procure for
Buyer the right to use or resell the Products, replace the Products with equivalent non-infringed goods, modify the
Products so they become non-infringing but substantially equivalent, or refund or credit the price actually paid by
Buyer to IMG for such Products (less reasonable allowances for use, damage and obsolescence).
12. Safety; Indemnification: Buyer must at all times safely operate Goods purchased from IMG, including
by implementing and strictly maintaining all training, use, maintenance, service, repair, safety or related measures,
controls, and other recommendations provided or made available to Buyer by IMG or any applicable third-party
component, part or Goods manufacturer or service provider. Without limiting the foregoing, Buyer shall otherwise
operate all Goods and utilize all Services properly and according to IMG’s or any applicable third-party
manufacturer or service provider’s operating instructions and shall not remove or change any safety device,
warning or operating instructions placed thereon. To the fullest extent permitted by applicable law, Buyer hereby
expressly agrees to indemnify, defend, and hold harmless IMG and IMG’s affiliates, and its and their officers,
directors, managers, employees, agents, successors and assigns from and against any and all claims, liabilities,
lawsuits, losses, costs, expenses and damages (including attorneys’ and professionals’ fees) of any kind or nature
whatsoever, including claims for personal injury (including death) or property damage, whether such claims are
founded in contract, tort or otherwise, including strict liability, which arise as a result of or otherwise relate to the
Agreement (including any breach thereof) and/or the Products, except to the extent arising solely and directly as a
result of IMG’s gross negligence or willful misconduct. IMG’s obligation to indemnify, defend, and hold harmless
Buyer, any third party or any other person from any direct or indirect claims, liabilities, lawsuits, losses, costs,
expenses and damages is limited solely to IMG’s IP Indemnification Obligation.
13. Termination By IMG: IMG may immediately terminate the Agreement or all or any part of any order
or release, without liability to Buyer or any other party, as a result of: (a) Buyer’s breach, threatened breach or
repudiation of any representation, warranty, covenant or other term of the Agreement; (b) any assignment for the
benefit of creditors or any institution of proceedings in bankruptcy or insolvency by or against Buyer; (c) Buyer’s
request for accommodation from IMG, financial or otherwise, in order to meet its obligations under the Agreement;
(d) Buyer entering or offering to enter into one or more transactions effecting a sale of a substantial portion of
Buyer’s assets or business or any merger, sale or exchange of equity interests that would result in a Change of
Control (as defend below) of Buyer; or (e) financial or other condition that could, in IMG’s sole discretion,
endanger Buyer’s ability to make required payments or otherwise perform. In addition, IMG may terminate the
Agreement or all or any part of any order or release, with or without cause, upon delivery of thirty (30) days’
advance written notice to Buyer. Following IMG’s termination, Buyer shall reimburse IMG, upon receipt of IMG’s
written demand, for all Products completed in accordance with Buyer’s order or release and for all reasonable and allocable material management, labor, overhead and general and administrative costs and expenses, and any work-in-progress, raw materials acquired for manufacture of Products, un-captured amortized capital expenditures for the research, development, and manufacture of Products, any unreimbursed development, non-recurring engineering or similar costs, and IMG’s costs for settling any claims or disputes with its sub-suppliers in connection
with component parts, raw materials, or services related to the Products (collectively, “Termination Costs”). Under
no circumstances shall IMG have any obligation to assist Buyer in any transition of supply of the Products (or
substitutes therefor) to Buyer or any other vendor, except to the extent otherwise expressly agreed by IMG, and
then, only upon IMG’s actual receipt of all Termination Costs owed by Buyer to IMG together with any applicable
fees for such transition support.
14. Termination By Buyer: Buyer may only terminate the Agreement (together with all orders and
releases) for cause upon a material breach by IMG which remains uncured ninety (90) days following IMG’s
receipt of written notice of such breach from Buyer (together with all necessary supporting information evidencing
such breach), and then, only upon delivery of not less than thirty (30) additional days’ advance written notice to
IMG. Following Buyer’s termination and upon IMG’s written demand, Buyer shall reimburse IMG all Termination
Costs. Under no circumstances shall IMG have any obligation to assist Buyer in any transition of supply of the
Products (or substitutes therefor) to Buyer or any other vendor, except to the extent otherwise expressly agreed by
IMG, and then, only upon IMG’s actual receipt of all Termination Costs owed by Buyer to IMG together with any
applicable fees for such transition support.
15. Force Majeure: IMG shall not be liable or responsible to Buyer, nor be deemed to have defaulted or
breached the Agreement for any failure or delay in fulfilling or performing its obligations when such failure or
delay is, at least in part, directly or indirectly caused by or results from acts or circumstances beyond the reasonable
control of IMG including acts of God, flood, fire, earthquake, explosion, foreign or domestic governmental actions,
regulations or orders (whether or not later determined invalid), war, invasion or hostilities (whether war is
declared), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic,
pandemic, disease or other public health emergency (including government-mandated quarantine and travel
restrictions), lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints
or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, directed
suppliers, telecommunication, tooling or other equipment breakdown (or any repair, maintenance or rehabilitation
thereof), shortage of fuel, power or other utilities, supplies, infrastructure, or transportation, or other similar or
dissimilar events beyond the reasonable control of IMG. For avoidance of doubt, to the extent that any such failure
or delay causes IMG to reduce or suspend its production, deliveries or performance, the time for IMG’s
performance shall be automatically extended for so long as required for IMG to remove or otherwise overcome
such failure or delay. IMG reserves the right to equitably allocate available Products, materials and resources based
on production capacity and customer needs, and Buyer shall cooperate with any such allocation.
16. Changes: IMG shall have no obligation to accept or otherwise implement any change to the Products
requested by Buyer, including changes to design, specifications, materials, packaging, testing or delivery
requirements. To the extent requested changes are agreed upon by IMG, if any, the parties will negotiate in good
faith appropriate adjustments to the time for performance, an equitable price adjustment for IMG’s increased costs,
and the amount of reimbursement by Buyer for the costs of any finished Products or materials or supplies, tooling,
dies, jigs, and other equipment, and any programs, simulations or other Services which become obsolete or any
other costs or appropriate adjustments resulting from the requested changes. Buyer shall issue an updated order or
release, or the parties shall otherwise memorialize such agreement in writing as an amendment to the Agreement,
before IMG is under any obligation to commence work on any such agreed-upon change. In addition, all costs and
expenses associated with the implementation of any such requested change shall be paid by Buyer in advance
unless otherwise agreed in writing by IMG. IMG reserves the right to request changes to the Goods or Services to
offer improvements as to cost, quality and/or safety, and the right to unilaterally implement changes required by
applicable law or that do not materially affect quality or performance, with or without notice.
17. Service Parts: IMG will supply service parts as determined by IMG in its sole discretion. The price,
applicable minimum order quantities, and other incidental commercial requirements for service Products shall be
as determined by IMG in its sole discretion from time to time. Notwithstanding the foregoing, IMG reserves the
right to stop manufacturing and supplying service parts at any time. Except as described herein or otherwise
required by applicable law, IMG shall have no obligation to manufacture or supply service parts or any literature,
materials or other information relating thereto.
18. Sales And Other Taxes: Prices for Products do not include sales, use, excise, VAT, or any other tariffs
or taxes that may be imposed by any taxing authority arising as a result of or otherwise relating to the sale,
performance, delivery or use of the Products and for which IMG may be held responsible for collection or payment
either on its own behalf or on behalf of Buyer (collectively, “Taxes”). The amount of any present or future Taxes
is in addition to the price for the Products and shall be paid by Buyer upon demand without regard to the party
assessed such Tax or where such Tax is imposed, or, in lieu thereof and as applicable, Buyer shall furnish IMG
with a Tax exemption certificate acceptable to the appropriate taxing authority and IMG.
19. Buyer’s Customers: Buyer acknowledges and agrees that IMG is not bound by any, and expressly
rejects all, terms and conditions imposed upon Buyer, or purportedly imposed upon IMG, by Buyer’s direct or
indirect customer(s) (“Customer(s)”), including any purported flow-down, flow-through or similar provisions,
whether or not IMG has notice of such terms and conditions. Regardless as to whether Buyer was directed to use
IMG, Buyer’s obligations to IMG under the Agreement will not be affected by: (a) the filing of a bankruptcy or
insolvency proceeding or an assignment for the benefit of creditors by or against such Customer(s) under the laws
of any jurisdiction; (b) a consensual, negotiated or court imposed or authorized modification or termination of all
or any portion of the contractual arrangements between Buyer and such Customer(s); (c) any amendments or
modifications to such Customer’s contractual arrangements with Buyer, including any pricing, payment terms,
discounts, rebates, cost or other improvement plans, set offs, debits, recoupments or other deductions,
specifications or delivery or capacity requirements; or (d) the failure of such Customer(s) to timely or fully pay
Buyer.
20. Compliance With Laws; Export: Buyer shall fully comply with all applicable law, statutes, rules,
regulations, conventions, orders, standards and ordinances, including all applicable anti-corruption laws, as such
acts may be amended from time to time. Each party acknowledges and agrees that the Products are subject to export
controls imposed by the U.S. government under various federal laws. Buyer is responsible for compliance with all
applicable U.S. export and international trade control laws, including the U.S. Department of Commerce’s Export
Administration Regulations (EAR), the U.S. Department of State’s International Traffic in Arms Regulations
(ITAR), and all economic and trade sanctions administered by the U.S. Department of Treasury’s Office of Foreign
Assets Control (OFAC). Without limiting the foregoing, Buyer agrees that it will not export, re-export, or otherwise
transfer any Products or technical data provided in connection with the Agreement to any country, person, entity
or end-user subject to U.S. export restrictions. Without limiting any other rights or remedies available to IMG
under the Agreement or applicable law, IMG may refuse to enter into or perform any order or release, and may
cancel any order or release if IMG determines, in its sole discretion, that entry into or performance of such order
or release would violate any applicable law or regulation.
21. Audits And Financial Review: IMG shall have no obligation to participate in any Buyer financial
review or otherwise provide any of IMG’s financial information to Buyer or any other person, including as it relates
to Buyer owned tooling and/or capital equipment. Notwithstanding the foregoing, upon an uncured material breach
by IMG and written request by Buyer, IMG will only be required to produce financial information relative to the
default and ability to perform its obligations in the future after mutually agreed to procedures have been established
for the review of actual and forecasted financial information, which financial information shall be limited in all
respects to annual, fiscal, interim or internal financial statements consisting of an income statement and balance
sheet of IMG and IMG’s general ledger records related to its direct and indirect costs relevant to the subject
Products. IMG shall have no obligation to participate in any Buyer audit, inspection or quality review except with
respect to IMG’s ability to perform its obligations in the future, and only after mutually agreed to procedures have
been established. Such audit, inspection or quality review shall be at Buyer’s cost, upon at least four (4) weeks
prior written notice, and in no event more frequently than once in any 12-month period.
22. 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 Buyer, 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 Buyer 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 Buyer unless authorized in advance by IMG in writing. Buyer shall
restrict access to and limit disclosure of IMG’s confidential information to only those of Buyer’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 Buyer
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 taken or not taken by Buyer. Upon IMG’s request, Buyer shall promptly return all documents
and other materials received from IMG and promptly and securely destroy (with written certification thereof) any
compositions, summaries or other embodiments thereof. IMG shall be entitled to injunctive relief for any violation
of this paragraph. The obligations of non-use and confidentiality set forth in this paragraph do not apply to
information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure as evidenced by Buyer’s
written records; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party as evidenced by
Buyer’s written records. The obligations contained in this paragraph shall not prevent Buyer 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 Buyer provides IMG
prompt written 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 Buyer reasonably cooperates with IMG in obtaining
such protective order, and provided further that Buyer will disclose only that portion of the confidential information
that Buyer is legally required to disclose and will make reasonable efforts to obtain reliable assurances that
confidential treatment will be accorded such confidential information. For the avoidance of doubt, Buyer’s
obligations under this paragraph shall survive any expiration or termination of the Agreement.
23. Personnel And Facilities: IMG shall determine which personnel shall perform Services in its sole
discretion; provided, however, it may consider replacing (but shall not be required to replace) any such personnel
as lawfully requested by Buyer on at least thirty (30) days’ prior written notice. Buyer agrees to: (a) provide IMG
with such access to Buyer’s personnel and operations as may be reasonably required by IMG for the purposes of
supplying Goods or performing Services; and (b) promptly respond to IMG’s reasonable requests for information,
input, direction or approvals as required to perform supply Goods or Services in a timely manner. Responsiveness
of Buyer and its personnel and representatives is critical to successful and timely completion of IMG’s performance
under the Agreement. Buyer shall further be at all times responsible for the following: (i) taking all reasonable and
necessary safety and other precautions to protect property and persons from damage, injury or illness in and around
all areas where IMG will or may operate or have a need to access (“Facilities”); (ii) maintaining all Facilities in a
neat, clean and safe condition, free of harassment, hazards, debris, rubbish or dangers not directly caused by IMG;
(iii) maintaining adequate insurance coverages with reputable carries, including for commercial general liability,
property and for any non-standard machinery or machinery that, by its nature, requires additional insurance; (iv)
timely reporting to IMG in writing all known conditions that do or may affect the Facilities or IMG’s performance
under the Agreement, including the existence of any potentially hazardous substances, materials or products (e.g.,
asbestos, radon gas, formaldehyde, lead-based paint, fuel or chemical storage tanks, contaminated soil on property,
and other airborne pathogens, etc.); (v) determining requirements for, and paying all costs incurred in connection
with, any engineering services, certifications, permits or similar authorizations, approvals or licensures, including
from federal, state or local authorities or landlords; (vi) any energy or other code requirements not explicitly stated
on prints made available to IMG at the time of quotation; and (vii) any other information, actions or items
reasonably requested of Buyer by IMG from time to time.
24. Non-Solicitation: During the term of the Agreement and for a period of two (2) years following its
expiration or termination, Buyer 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 Buyer had contact or who became known to Buyer 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 Buyer solicited or otherwise contacted such Covered Employee or discussed the
employment or other engagement of such Covered Employee.
25. Sample Items; Consigned Materials: Buyer shall furnish at its sole cost and expense, when and where
required, sufficient sample quantities of production parts and related consumable or non-consumable items as are
required and requested by IMG from time to time in connection with IMG’s performance under the Agreement,
including for development, installation, testing, and qualification of Goods and Services. These items may be
destroyed or otherwise not returned to Buyer. Such samples are deemed to be representative of standard production
items. Dimensional, material, geometrical or other characteristic deviations from such samples may cause improper
performance, malfunctions or other issues or errors, and such deviations shall void IMG’s warranties as provided
herein. Any equipment, tooling, components, materials or other items purchased for or otherwise delivered or made
available to IMG by or on behalf of Buyer to be integrated, embedded or otherwise incorporated in or utilized by
IMG in connection with the Agreement (“Consigned Items”) shall be expressly documented in a written notice
from Buyer to IMG, which notice shall be specifically acknowledged in writing by IMG confirming receipt
following IMG’s possession or control of such Consigned Items. IMG shall have no liability whatsoever with
respect to such Consigned Items, except to the extent arising solely and directly as a result of IMG’s gross
negligence or willful misconduct, including any liability for: (a) Buyer or any other party’s failure to timely or
fully pay any third party any purchase price or other amounts related to such Consigned Items; or (b) damages or
defects caused by maintenance (including failure to perform appropriate maintenance) or other services, storage,
handling, use or operation, accident, abuse, or vandalism or any transit-related damage, force majeure events,
normal wear and tear, or any other acts that are beyond IMG’s reasonable control.
26. Assignment: Buyer may not assign or delegate the Agreement or any of Buyer’s rights 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) Buyer 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 Buyer in contravention of this paragraph shall be null and
void. A sale of a substantial portion of Buyer’s assets or a material change in the direct or indirect ownership or
control of Buyer (including control of more than twenty-five percent (25%) of Buyer’s equity interests), any merger
or consolidation directly or indirectly involving Buyer, or any other substantial change in Buyer’s organization
shall be deemed an assignment by Buyer (“Change of Control”). For avoidance of doubt, IMG may at any time
subcontract all or any portion of Services or its performance under the Agreement, with or without notice to
Buyer. If Buyer requires IMG to subcontract all or a portion of its duties or obligations under the Agreement to a
designated subcontractor (including any directed supplier arrangement, whether or not memorialized in a tri-party
agreement or other formal arrangement), IMG will not be responsible for a breach of the Agreement caused by
that subcontractor’s failure to meet its warranty, delivery, or other contractual obligations. The Agreement shall
inure to the benefit of the parties’ permitted successors and assigns.
27. 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 quotation; provided, however, that either party can change its notice address by written notice from time to time.
28. 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 Products 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 IMG may modify these Terms from time to time by posting revisions
to IMG’s website at www.img-na.com (or any successor thereto) prior to the date when any such modification
shall become effective, and such revised Terms shall apply to all new or revised orders or releases issued on or
after the effective date thereof, and Buyer further acknowledges and agrees it is responsible to review such IMG
website periodically. 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. Buyer and IMG 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 Sales Document made part of the Agreement, the
applicable Sales Document shall control. IMG’s waiver of any breach by Buyer 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 Products shall not apply. Buyer 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. Buyer 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,
cancellation or termination of the Agreement.