Master Purchase Agreement

THIS MASTER PURCHASE AGREEMENT (the “MPA”) dated as of the date of the Purchase Order (“PO”) between Mold-Rite Plastics, LLC, d.b.a. MRP Solutions, for its benefit and that of its subsidiaries and other affiliates, collectively referred to as (“Purchaser”) and the party set forth in the PO (“Seller”).

1. SALE: Seller agrees to sell and Purchaser agrees to purchase from Seller the goods, materials, and/or services (“Products”) listed on each individual PO issued and signed by Purchaser, pursuant to the terms of this MPA.
2. PURCHASE AGREEMENTS: The purchase price, product description, warranty, delivery date, delivery instructions, payment terms, and other special instructions will be described within each PO. Written acknowledgement of this MPA, Seller’s commencement of work, the shipment of any goods, or the furnishing of any services pursuant to the PO shall constitute acceptance by Seller of the terms and conditions of the PO and this MPA. The terms and conditions set forth in this MPA are the exclusive terms that apply to the purchase of Products by Purchaser from Seller. This MPA is incorporated by reference into all quotations, PO’s, and offers made by Purchaser. This MPA, together with Purchaser’s invoice, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This MPA prevails over any terms and conditions contained in or referenced in Seller’s purchase order, invoice, confirmation, or any other document issued by Seller in connection with any order (the “Seller Documents”) regardless whether or when Seller has submitted any such Seller Document. Any and all terms and conditions contained in or referenced in any Seller Documents that are additional to or different from those contained in this MPA shall be deemed objected to and rejected by Purchaser without need of further notice of objection and shall be of no effect and not binding on Purchaser unless accepted by Purchaser in writing. Acceptance of Seller’s goods does not constitute acceptance of any of Seller’s terms and conditions and does not serve to modify or amend this MPA.
3. DELIVERY AND PAYMENT: Seller agrees to adhere to all instructions provided by the Purchaser in the PO. All items must be suitably packaged and prepared for shipment to secure lowest transportation rates and compliance with standard carrier regulations. When delivery instructions direct Seller to use Purchaser’s overnight carrier, Seller must not declare value and must reference the PO number on the airbill. If Seller declares value or ships via a different method than specified by Purchaser, Purchaser may deduct any excess charge from the payment for those Products or send an invoice to the Seller which Seller shall pay on receipt. No additional charges of any kind, included charges for boxing, cartage, and other extras will be paid by Purchaser unless specifically agreed to in writing. Delivery shall not be deemed to be complete until Purchaser actually receives and accepts the Products. Purchaser may delay delivery or acceptance of goods in the event of any unforeseen event, whereupon Seller shall hold the Products for Purchaser to the extent commercially reasonable. Unless the PO notes otherwise, all sales are DDP (Incoterms 2010) to the destination directed by Purchaser.  Purchaser shall not be liable for fees or other charges unless otherwise stated in the PO. Unless otherwise agreed, payment terms for all purchases shall be Net 30 days.
4. RISK OF LOSS: Seller shall have title and bear the risk of loss or damage to the Products until they are received by Purchaser at the delivery destination specified in the PO, or if no destination is specified, Purchaser’s principal place of business. Upon receipt, title shall pass to Purchaser and Seller’s responsibility for loss or damage relating to transporting the items shall cease except for loss or damage resulting from Seller’s negligence. Passing of title upon receipt shall not constitute acceptance of the Products.
5. REPRESENTATIONS AND WARRANTIES: Seller represents and warrants that: unless stated otherwise: (a) all Products shall be merchantable, free from any known defects in material, design, and workmanship, fit for the particular purposes intended, and conform to all specifications, samples, drawings and plans, if any, furnished by Purchaser or represented by Seller; (b) Seller has clear title to the Products, free of all claims, charges, liens, and encumbrances; (c) Seller is in compliance and shall comply with all laws, ordinances, and regulations applicable to the conduct of its business and the sale of Products, including, but not limited to import/export regulations and the United States-Mexico-Canada Agreement (USMCA), anti-slavery and human trafficking laws, child labor laws, and anti-bribery and anti corruption laws; (d) any and all applicable taxes have been paid or will be paid in full; (e) all Products are authentic and compliant with specifications; (f) the sale or use of any Products by Purchaser will not infringe any patent, design, right, trademark, or other intellectual or industrial property right of any third party; (g) the prices quoted by Seller are the lowest price and most favorable terms and conditions of like grade or quality or with substantially similar specifications offered by Seller to other customers, and, in the event of any price reduction or more favorable terms and conditions between execution of the PO and delivery of the Products, Purchaser shall be entitled to such reduction or terms and conditions; and (h) Seller is not aware of any pending or threatened claims relating to the Products that would impede the sale of such Products.
6. INSPECTION AND ACCEPTANCE: All Products shall be received subject to Purchaser’s inspection and acceptance. Purchaser shall accept or reject any Products within 14 business days of receipt. Invoice payment shall not constitute acceptance of the Products nor impair Purchaser’s right to inspect or any other remedies. A cash discount period will begin to run from the later of the receipt of the Products or the date of the invoice.
7. REJECTION: If, within 14 business days of receipt, Purchaser finds any of the Products to be defective or otherwise not in conformity with the warranties and other requirements of the PO, Purchaser at its option may (a) reject and return such Products and receive a full refund, including the cost of returning such Products; (b) require Seller, at its own expense, to immediately replace non-conforming Products with conforming Products; or (c) retain such Products at an adjusted price.
8. TERMINATION: This MPA will remain in force unless terminated in writing by either party subject to Paragraph 9. Purchaser may, by written notice to Seller, immediately terminate this MPA or cancel in whole or in part any PO within 5 days of Seller’s receipt of the PO (provided such PO has not been accepted by Seller and there has been no material change in Seller’s position), without liability to Purchaser in the following circumstances: (i) if Seller fails to perform any other provision of this MPA or a PO or breaches any provision thereof, including failure to deliver Products by the date stated on any PO; (ii) Seller becomes insolvent or ceases doing business in the ordinary course, files a petition or has filed against it a petition in bankruptcy for the appointment of a trustee or receive or otherwise seeking liquidation; or (iii) for convenience and without cause.
9. EFFECT OF TERMINATION: No termination of this MPA shall affect either party’s obligations with respect to Products ordered under an outstanding PO, except that, if terminated by Purchaser, Seller shall immediately stop all work and observe any instruction from Purchaser as to any work in progress. This MPA and each PO shall survive any termination with respect to Products ordered or shipped before a termination notice is received. Upon termination for Seller’s failure to perform or breach of this MPA or a PO, the parties may negotiate reasonable termination costs which must be identified by Seller within 20 days of a termination notice.
10. PERFORMANCE: If the PO includes work to be performed on Purchaser's premises, Seller agrees to observe the highest safety standards, maintain adequate public liability and workers’ compensation insurance, and to furnish evidence of such insurance at Purchaser's request. Seller agrees that all work shall be done as an independent contractor and that persons doing the work shall not be considered employees of Purchaser. Seller agrees to comply with all applicable federal, state, municipal and local laws, regulations, ordinances and codes of any applicable governmental authority.
11. INDEMNIFICATION: Seller agrees to indemnify, defend, and hold Purchaser, its affiliates, officers, directors, managers, employees, agents, representatives, customers, successors, and assigns and any person or entity claiming through any one or more of the foregoing harmless from and against any and all claims, demands, actions, suits, and proceedings (whether civil, criminal, or administrative), and all liability, losses, expenses (including reasonable attorneys’ fees), costs, fines, penalties, taxes or damages, caused by, arising out of or in any way related to: (a) any inaccuracy or breach of any of Seller’s representations and warranties made in this MPA or a PO or Seller’s failure to perform or breach of this MPA or PO; (b) any personal or bodily injury or property damage, whether grounded in negligence, strict liability in tort, breach of contract, breach of warranty, or otherwise with respect to the Products; (c) the negligent acts or omissions of Seller; (d) defective or nonconforming Products provided by Seller; (e) any claim by a third party based on infringement of intellectual property contained in the Products; and (f) any violation of applicable law.
12. LIMITATION OF LIABILITY: Purchaser shall not be liable for any reason to Seller for any compensation, reimbursement, or damages, including in particular but not limited to any special, indirect, punitive, incidental, or consequential damages whatsoever, even if Purchaser is advised of the possibility of such damages. Purchaser’s total cumulative liability to Seller under this MPA and/or any PO shall be limited to the amounts actually paid by Purchaser to Seller under the same.
13. CONFIDENTIALITY: Seller shall keep confidential and agrees not to disclose, divulge, or reveal any confidential or proprietary information received from Purchaser hereunder ("Confidential Information") to third parties without the prior written approval of Purchaser. For purposes of this Agreement, Confidential Information means nonpublic information that Purchaser designates as being confidential or which, under the circumstances surrounding its disclosure, should be treated as confidential by Seller. This obligation of confidence shall not apply to information which (i) is or becomes publicly available by other than a breach hereof (including, without limitation, any information filed with any governmental agency and available to the public; (ii) is known to or in the possession of Seller at the time of disclosure; (iii) thereafter becomes known to or comes into possession of Seller from a third party that Seller reasonably believes is not under any obligation of confidentiality to Purchaser and is lawfully in the possession of such information; (iv) is developed by Seller independently of any disclosures previously made by Purchaser to Seller; or (v) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by subpoena, summons or other legal process, or by law, rule or regulation, or by applicable regulatory or professional standards, provided that prior to such disclosure by Seller, to the extent possible, Purchaser is given reasonable advance notice of such order and an opportunity to object to such disclosure. Seller shall carry out its obligations hereunder using the same degree of care that it uses in protecting its own confidential information, but at least a reasonable degree of care.
14. DISPUTE RESOLUTION; GOVERNING LAW; JURISDICTION; VENUE; JURY WAIVER: If a dispute arises from or relates to this MPA, the PO, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to litigation. The parties agree to share equally in the costs of the mediation. Mediation shall be conducted at a location agreed to by the parties, or telephonically. If after 2 days of mediation, the mediation does not result in settlement of the dispute, then any unresolved dispute arising from or relating to this MPA, the PO, or the breach thereof may be settled by litigation. This MPA and any PO issued hereunder shall be interpreted in accordance with the laws of the State of New York. The United Nations Convention on Contracts for the International Sale of Products shall not apply to this MPA or any Products related thereto. Jurisdiction of any proceeding or litigation with respect to this MPA or any PO issued hereunder shall be in New York, with a venue in a court of competent jurisdiction located in Onondaga County, New York.  Seller and Purchaser hereby agree and submit to the jurisdiction of such court without regard to any conflict of law principles.  Purchaser and Seller waive any right to a trial by jury in any action to enforce this MPA or any PO or to collect money due hereunder or thereunder.  In the event of litigation, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and costs. Any claim, except for nonpayment, must be brought within 1 year of product shipment or completion of services.
15. SURVIVAL: Paragraphs 11, 12, 13 and 14 shall remain in full force and effect notwithstanding the termination of this MPA for a period of six (6) years.
16. FORCE MAJEURE. A party shall not be liable for any failure of or delay in the performance of this MPA for the period that such failure or delay is due to causes beyond its reasonable control, including but not limited to acts of God, war, strikes or labor disputes, embargoes, government orders, or any other force majeure event.
17. MODIFICATION: No modification or variation of this MPA or a PO shall be effective unless in writing and signed by the duly authorized representatives of both parties. Neither this MPA nor any of the rights, interests, or obligations hereunder shall be assigned by Seller without the prior written consent of Purchaser.
18. WAIVER: Either party’s waiver of any condition or breach by the other party of any of the provisions of the MPA shall not constitute a waiver of any other condition or breach of the same or any other provision.
19. CONFLICT: In the event any PO terms conflict with this MPA and have not been agreed to in writing by both parties, the PO shall govern.