1. DEFINITIONS.

As used herein: “Seller” means the Prosource Industries subsidiary or affiliate legal entity shown on the Prosource Offer and/or Order Acknowledgment. “Buyer” means the entity to which Seller’s Offer is made or the entity purchasing Goods and/or Services from Seller. “Goods” means the software, software licenses, products, parts, materials, and/or equipment specifically included in Seller’s Offer and/or Buyer’s Order and includes “Standard Product” that means fully designed and developed products previously sold by Seller to customers and that require no changes, alterations, or additions from those Goods customarily offered by Seller and described in Seller’s marketing literature. “Services” means services included in Seller’s Offer and/or Buyer’s Order to be performed by Seller. “Offer” means any quotation, bid, or proposal for Goods and/or Services made by Seller to Buyer. “Order” means a purchase order or similar purchase instrument issued by Buyer to Seller for the purchase of Goods and/or Services. All references to “Seller’s terms and conditions” herein mean and include (i) the General Terms and Conditions of Sale set forth herein; and (ii) any other Terms and Conditions, to the extent referenced in Seller’s Offer and/or Order Acknowledgment. Seller and Buyer are sometimes referred to herein individually as a “Party” and jointly as the “Parties”.

2. OFFERS.

Unless stated otherwise in writing by Seller, Seller’s Offer shall be valid for thirty (30) days from the date of such Offer. Any extension to the validity period shall be at Seller’s sole discretion. Seller reserves the right to withdraw and/or revise the Offer at any time during the validity unless it is accepted by Buyer in its entirety. The prices offered by Seller apply only to the specific details of the Offer.

3. ACCEPTANCE OF BUYER’S ORDER.

Seller’s Offer and any Order issued by Buyer to Seller for Goods and/or Services, and any amendments thereto, are strictly limited to Seller’s terms and conditions. Buyer’s issuance of an Order in response to Seller’s Offer shall conclusively evidence Buyer’s unconditional acceptance of Seller’s terms and conditions irrespective of any different terms and conditions included in Buyer’s Order, and Seller hereby rejects and shall not be bound by any terms or conditions in Buyer’s Order or other written communications that differ from, add to, or modify Seller’s terms and conditions. Seller’s terms and conditions shall govern and apply to Orders accepted by Seller whether they are attached to Seller’s Offer or referenced on Seller’s website. Seller’s failure to object to any terms and conditions or any other provisions contained in any communication from Buyer does not waive any of Seller’s terms and conditions specified herein.

4. SOFTWARE AND END USER LICENSE AGREEMENT (EULA).

Goods may contain or be delivered with or as digital media containing software proprietary to Seller or a third party. Goods may also be comprised of software delivered in digital media or other format that is proprietary to Seller or a third party. All software is provided under license only, and not as a sale or other transfer of ownership. Buyer undertakes to accept and be bound by any applicable End User License Agreement (EULA) or other license agreement imposed by Seller or a third party for such software. In the case of software delivered as digital or other media, installation or download of the Goods constitutes agreement by Buyer to the terms and conditions of Seller’s EULA. Seller has no obligation to continue to offer any software product or license for purchase and has no obligation to develop or provide software updates unless specifically part of Seller’s Offer.

5. PRICES.

All prices, invoices, and payments shall be in the currency specified in Seller’s Offer. A minimum purchase amount applies to all Orders. Unless expressly stated otherwise in Seller’s Offer, all prices are firm and fixed and are exclusive of special packing and packaging, installation, commissioning, and training costs.

6. PAYMENT TERMS AND TITLE.
Subject to Seller’s approval of Buyer’s credit, and as stated in Seller’s Offer, at Seller’s sole discretion, payment terms for Orders will be either: full or partial payment in advance by wire transfer; by an irrevocable letter of credit confirmed with Seller’s bank; or net thirty (30) days from the date of Seller’s invoice. Regardless of method of payment, Buyer is responsible for applicable banking fees or charges. Buyer shall pay interest on all late payments at a rate equal to the higher of (i) one and one-half percent (1.5%) per month or (ii) the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under Seller’s terms and conditions or at law, which Seller does not waive by the exercise of any rights hereunder, Seller shall be entitled to suspend the delivery of any Goods and/or performance of Services if Buyer fails to pay any amounts when due hereunder and such failure continues for three (3) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. If Seller at any time determines, in its sole and absolute discretion, that Buyer is not financially sound or responsible or may be unable to pay in full and in a timely manner all amounts due to Seller, Seller shall have the right to require immediate payment in full in cleared funds prior to continuing work or incurring any further cost. Buyer must raise any dispute relating to an invoice within fifteen (15) calendar days of the date of invoice. If Buyer’s dispute is held to be valid, Seller shall credit Buyer the disputed amount. Title to Goods shall pass to Buyer upon delivery; however, Seller shall maintain an enforceable interest in the Goods until receipt of payment in full to Seller.

7. TAXES.
Unless expressly stated otherwise in Seller’s Offer, all prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such taxes, duties and charges; provided, however, that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, real property, or other assets.

8. INSPECTION AND TESTS.
All Goods manufactured by Seller are subject to Seller’s standard inspection and quality assurance processes and, if applicable, acceptance testing at Seller’s facility. Any additional requirements mutually agreed by the Parties in writing including, without limitation, Buyer’s source inspection or additional testing required by Buyer, shall be at Buyer’s sole expense. If Buyer requires inspection by Buyer or Buyer’s representative at Seller’s place of manufacture, such inspection shall be subject to Buyer’s prior written request and Seller’s prior written approval and shall not unreasonably interfere with Seller’s operations. If applicable, if Buyer fails to perform such inspection on the agreed date, Buyer’s request for inspection shall be deemed to have been waived by Buyer.

9. PACKING AND PACKAGING.
All Goods shall be packed and packaged in accordance with Seller’s standard commercial packing and packaging methods. Any nonstandard or special packing or packaging requested by Buyer is subject to Seller’s written agreement and shall be at Buyer’s sole expense.

10. DELIVERY, SHIPPING TERMS, AND RISK OF LOSS.
Unless agreed otherwise by Seller in writing, shipping terms shall be as expressly stated in Seller’s Offer. If Seller’s Offer does not specify shipping terms, shipments shall be delivered FCA (Free Carrier Alongside) to Seller’s shipping dock in accordance with the version of Incoterms in effect as of the date of Seller’s Offer. Risk of loss to Goods shall pass in accordance with the applicable Incoterm. If Seller prepays shipping, insurance, or other related charges, Buyer agrees to reimburse Seller promptly for such charges. If Buyer fails to arrange for collection of the Goods or any part thereof on the scheduled Order shipping date, or fails to provide instructions or documents required for shipment, Seller may, upon providing written notice to Buyer, store or arrange for the storage of the Goods, and on the service of such notice (i) risk of loss of the Goods shall pass to Buyer; (ii) delivery of the Goods shall be deemed to have taken place and any outstanding payment for the Goods will become due; and (iii) Buyer shall pay Seller all costs and expenses arising from such failure including, but not limited to, storage and insurance charges.

11. EXPORT AND ANTI-BRIBERY COMPLIANCE.

All Goods, Services, and technical information provided by Seller to Buyer may be subject to (i) the export control laws and regulations of the United States of America including, without limitation, the International Traffic in Arms Regulation (ITAR) and the Export Administration Regulations (EAR), and (ii) all export control laws and regulations of the country of registration of the Seller, and may be subject to the export and/or import regulations in other countries. Buyer agrees and hereby covenants that it will not, directly or indirectly, transfer, offer to sell, sell, export, re-export, distribute, allow the use of, or otherwise dispose of Goods or related technical information to or in any of the following: (A) any countries as may be designated from time to time by (i) the U.S. Government; (ii) the Government of the country of registration of the Seller; and/or (iii) other applicable country governmental agencies as required unless otherwise authorized by the U.S. Government, the Government of the country of registration of the Seller, and/or other applicable country governmental agencies as required, and (B) any countries restricted by Seller’s restricted country policy, which includes Belarus, Burundi, Central African Republic, Cuba, the Democratic Republic of the Congo, the Republic of Congo, Guinea-Bissau, Iran, North Korea, Russia, Rwanda, the Republic of South Sudan, the Republic of Sudan, Somalia, Syria, Tanzania, Uganda, the following regions of Ukraine: Crimea, Donetsk, and Luhansk, Zambia, Zimbabwe, and any other countries that may be designated from time to time by the Seller. Buyer further agrees that it will not (i) sell, transfer, export, or re-export Goods for use in activities that involve the development, production, use, or stockpiling of nuclear, chemical, or biological weapons, or nuclear, chemical, or biological missiles, nor (ii) use such Goods in any facilities that are engaged in activities related to such weapons or their delivery systems. Buyer acknowledges that U.S. law prohibits the sale, transfer, export, or re-export of Goods to, or participation in any export transaction involving Goods with, individuals or companies listed in (i) the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List; (ii) the U.S. Department of Treasury’s Specially Designated Nationals and Blocked Persons Lists; or (iii) the U.S. Department of State’s Debarred Persons List. Buyer agrees to indemnify and hold Seller harmless from any claims or liability arising from Buyer’s failure to comply with all such export control laws and regulations. The Parties each agree to provide to the other, in a timely manner, such information and assistance as may reasonably be required in connection with securing any required authorizations or licenses. The delivery schedules delineated in Seller’s Offer and/or Buyer’s Order are calculated from the date of receipt of any required export license(s). Seller shall commence work only after receipt of a valid export license(s) from the appropriate U.S. Government agencies, the Government agencies of the country of registration of the Seller, or other applicable governmental agencies; provided, however, Buyer may, at its sole risk, authorize Seller to commence work under Buyer’s Order prior to receipt of an export license. In such case, Buyer agrees that it is fully liable to Seller for all costs incurred by Seller in the performance of Buyer’s Order and shall reimburse Seller for such costs in the event any required export license or authorization is denied or canceled, or if any restrictions imposed by the issuing agency render continued performance of Buyer’s Order impossible or impracticable. Any Order accepted by Seller that cannot be fulfilled due to law or regulations or Seller’s inability to obtain any required export license(s) may be canceled by Seller without any further liability or obligation to Buyer. Buyer agrees that it will not, directly or indirectly, pay or offer to pay money or give anything of value to any foreign official in order to influence any action or decision for the purpose of obtaining or retaining business or securing any competitive advantage. Buyer understands the requirements of the U.S. Foreign Corrupt Practices Act 1977 (“FCPA”), the UK Bribery Act 2010, and all other applicable laws related to anti-bribery and corruption (collectively, the “Anti-Bribery Law”) and agrees to strictly comply therewith. Buyer further agrees that it will maintain and enforce a policy that prohibits the bribery of foreign officials.

12. DELIVERY SCHEDULES AND FORCE MAJEURE.
All dates require prompt receipt of all necessary Buyer-furnished information, instructions, materials, and equipment, if applicable, and Seller shall not be liable for non-adherence with such dates. In addition, any delay or failure of Seller to perform its agreed obligations under Buyer’s Order and/or Seller’s Acknowledgment shall be excused if such delay or failure is the result of an unforeseeable event or occurrence beyond the reasonable control of Seller, and without its fault or negligence (a “Force Majeure Event”). Such events include, but are not limited to, acts of God, actions by any governmental authority, withdrawal or inability to obtain any necessary import or export licenses or other consents, terrorism, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, cyber incidents, supplier delays, labor problems (including lockouts, strikes, and slowdowns), and inability to obtain power, utilities, materials, labor, equipment, transportation, or court injunctions.

13. CHANGES.
Buyer may request changes within the general scope of Buyer’s Order by providing written notice to Seller; provided, however, such changes shall not be effective unless and until Seller, at its sole discretion, consents to such changes in writing. If any such changes cause an increase in the cost or time required for performance of any part of Buyer’s Order, an equitable adjustment shall be made to the price and/or delivery schedule, and the Parties shall execute a written modification to Buyer’s Order to reflect such changes and adjustments.

14. TERMINATION

14.1 FOR CAUSE, INCLUDING DEFAULT.
If Seller has reasonable grounds to suspect that Buyer has violated any applicable law or regulation, then in Seller’s sole discretion it may, without any liability, terminate, cancel, or suspend performance of the Order or any other contract between Buyer and Seller immediately, or postpone delivery of all or any part of the Goods or Services or all or any part of any other Order placed by Buyer with Seller. In addition, if a Party (the “Breaching Party”) is in breach of a material provision of Buyer’s Order, the other Party (the “Non-Breaching Party”) shall submit a written cure notice to the Breaching Party advising of such breach. Except in the case of amounts due to Seller from Buyer, which shall be paid immediately upon Buyer’s receipt of the notice, the Breaching Party shall have thirty (30) days from receipt of such notice to cure the breach. If the Breaching Party does not cure the breach within the thirty (30) day cure period, the Non-Breaching Party may terminate Buyer’s Order for default. Either Party may immediately terminate Buyer’s Order if the other Party is adjudicated bankrupt, files a petition for bankruptcy, makes an assignment for the benefit of creditors, or if an action under any law for the relief of debtors is taken.

14.2 FOR SELLER’S CONVENIENCE.
Seller, at its sole discretion, may terminate any Order by giving ninety (90) days’ written notice to Buyer, or with immediate effect in the event Seller suffers any Force Majeure Event. Buyer shall remain liable for payment of the Order price for all Goods delivered to Buyer prior to such termination and for the actual cost incurred by Seller, plus reasonable profit and recoveries, for partially completed Goods and associated work in process which, upon payment, shall be delivered to Buyer. Seller shall have no further liability or obligation in the event of termination for convenience.

14.3 FOR BUYER’S CONVENIENCE.
Seller, at its sole discretion and subject to written authorization, may allow Buyer to cancel all or a portion of Buyer’s Order for Standard Products or Services. If so authorized, Buyer’s cancellation of any Order for Standard Products is subject to Seller’s then-current Order cancellation policy and restocking charges. All returned Standard Products must be in new and unused condition. For authorized cancellations of Orders for Services, Buyer shall pay Seller in full for all fully-burdened direct and indirect costs incurred by Seller for Services performed, plus a reasonable profit thereon. Seller will notify Buyer of the amount owed, which shall be immediately due and payable to Seller. All Orders for non-Standard Products are non-cancellable and non-returnable, and Buyer is liable for payment of the full Order price for such products. Blanket orders, master supply agreements, and similar contractual agreements that are accepted and confirmed by Seller are non-cancellable, and Buyer shall pay Seller the full Order value for the balance of quantities not previously called off or delivered to Buyer. All such quantities shall be shipped and invoiced no later than the last delivery date or expiration date specified in Buyer’s Order and agreed to by Seller.

14.4 ADDITIONAL RIGHTS RELATED TO TERMINATION.
Seller may exercise any of the rights herein without any liability and without prejudice to any other right or remedy to which Seller may be entitled by operation of law or otherwise, including, without limitation, the right to recover Seller’s costs with respect to work in progress and incidental costs. In addition, if any Force Majeure Event occurs, Seller shall be entitled to retain any deposit or other amount paid by Buyer as of the date on which notice of such termination is provided, it being the express intent of Seller and Buyer that Buyer shall bear the risk of loss of its deposit or other amounts paid to Seller prior to delivery as a result of any Force Majeure Event.

15. WARRANTY

15.1 LIMITED WARRANTY FOR GOODS (INCLUDING SOFTWARE OTHER THAN WHEN SUPPLIED AS A STAND-ALONE GOOD) AND SERVICES.
Seller warrants that all Goods delivered under Buyer’s Order shall be free from defects in material and workmanship and conform to Seller’s specifications for the period specified in Seller’s Offer or as set forth in an applicable warranty section on Seller’s website. In the event that no period is specified, the warranty shall apply for a period of twelve (12) months from the date of original shipment. This warranty does not apply to any Goods that, upon examination by Seller or Seller’s authorized service provider, are found to have been (i) mishandled, misused, abused, or damaged by Buyer or any third party; (ii) altered from their original state; (iii) repaired by a party other than Seller without Seller’s prior written approval; or (iv) improperly stored, installed, operated, or maintained in a manner inconsistent with Seller’s instructions. This warranty does not apply to defects attributable to (i) normal wear and tear or (ii) failure to comply with Seller’s safety warnings.

Seller, at its sole option, shall either repair or replace defective Goods, or issue Buyer a credit for the original price of the defective Goods (subject to depreciation if appropriate). Such repair, replacement, or credit shall be Buyer’s sole remedy for defective Goods and Services. Under no circumstances is Seller liable for recall, retrieval, removal, dismantling, re-installation, redeployment, or re-commissioning of any defective Goods, or any costs associated therewith. Consumables obtained from third parties shall bear the warranty of their manufacturer. The warranty period for repaired or replaced Goods or re-performed Services shall be the greater of (i) ninety (90) days or (ii) the unexpired portion of the original warranty period.

Seller warrants that Services will be competently performed by persons reasonably skilled in their performance. Any claim for breach of this warranty must be made within ninety (90) days after completion of the specific Services for which breach is claimed. Seller shall re-perform defective Services if timely claimed, and such re-performance by Seller shall be Buyer’s sole remedy for such breach.

15.2 LIMITED WARRANTY FOR SOFTWARE WHEN SUPPLIED AS A STAND-ALONE GOOD.
If, during the warranty period, the software does not conform to the applicable Seller software documentation, Seller, at its sole option, shall either repair or replace the defective software, or issue Buyer a credit for the original price of the defective software (subject to deduction for usage if appropriate). Such repair, replacement, or credit shall be Buyer’s sole remedy for defective software.

Seller warrants hardware compatibility with Seller’s software only when the hardware is purchased from Seller. Seller does not warrant performance of the software where Seller’s software is required to integrate or co-exist with software not supplied by Seller. Seller shall not warrant any software that is found to have been (i) mishandled, misused, abused, or damaged by Buyer or any third party; (ii) altered from its original state; (iii) repaired by a party other than Seller without Seller’s prior written approval; or (iv) improperly stored, installed, operated, or maintained in a manner inconsistent with Seller’s instructions. Under no circumstances is Seller liable for recall, retrieval, removal, dismantling, re-installation, redeployment, or re-commissioning of any defective software or any costs associated therewith. The warranty period for repaired or replaced software shall be the greater of (i) thirty (30) days or (ii) the unexpired portion of the original warranty period.

15.3 DISCLAIMER OF OTHER WARRANTIES.
THESE EXPRESS WARRANTIES IN SECTIONS 15.1 AND 15.2, INCLUDING THE REMEDIES SET FORTH HEREIN, ARE EXCLUSIVE AND ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO AN EXCLUSION OF ANY AND ALL WARRANTIES RELATING TO LATENT DEFECT. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS INTENDED OR GIVEN. IN THE CASE OF THIRD-PARTY SOFTWARE, SELLER MAKES NO WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED.

16. RETURN AUTHORIZATIONS (NOT APPLICABLE TO SOFTWARE).
Buyer’s return of nonconforming or defective Goods to Seller is subject to Seller’s then-current return authorization process and procedures. Buyer shall promptly notify Seller of any nonconformance or defects in Goods and provide Seller a reasonable opportunity to inspect such Goods. Goods shall not be returned without Seller’s prior authorization, as evidenced by a Return Material Authorization (RMA) number issued by Seller. By requesting a RMA, Buyer unconditionally agrees that any Goods returned to Seller entitles Seller to act and interact with the Goods on the basis that Seller has title in the Goods from the point of creation of the customs declaration and/or to interact with the Goods as is required for appropriate tax management, including for the purposes of any tax reliefs available. This does not affect the point at which Seller takes risk in the Goods in accordance with this section.

Once a RMA number is obtained from Seller, Buyer shall return Goods transportation and insurance prepaid in accordance with instructions issued by Seller. Failure to follow Seller’s return authorization procedures may result in lost Goods, delays, additional service, restocking charges, warranty denial, or refusal of a return shipment. The RMA number must appear on the shipping label and all paperwork associated with the return. Buyer shall identify the model or part number, description, and serial number (if applicable) for each of the Goods returned, along with an explanation of the nonconformance or defect.

Issuance of a RMA number by Seller does not necessarily mean Seller agrees that returned Goods are nonconforming or defective or covered under warranty, or that Goods will be repaired or replaced at no cost to Buyer. Goods determined by Seller to be nonconforming or defective and covered by Seller’s warranty shall be repaired or replaced at Seller’s option and expense and returned to Buyer at Seller’s expense. If any Goods returned by Buyer are found not to be nonconforming or defective, Buyer shall be so notified, and such Goods shall be returned to Buyer at Buyer’s expense.

For defective Goods not covered by this warranty, repair or replacement shall not be performed unless and until Buyer issues an Order to Seller authorizing such repair or replacement at Seller’s then-current repair or replacement price. In addition, Seller may charge Buyer for any testing or inspection costs. In no event shall Seller retain or store returned Goods for more than six (6) months unless notified otherwise by Seller.

17. TOOLING.
Unless agreed otherwise by Seller in writing, all tooling, fixtures, equipment, tools, software, and designs produced, acquired, or used by Seller for the purposes of fulfilling Buyer’s Order shall remain the property of Seller.

18. PRODUCTION DISCONTINUATION.
Seller shall continue to offer Goods for sale provided such Goods (specific part number, model, or product family) meet Seller’s business criteria, which are established and maintained solely at Seller’s discretion. Any Goods that do not, or are not expected to, meet Seller’s business criteria may be eliminated by Seller from its offerings (“Discontinued Goods”). In such an event, Seller, at its sole option, may accept last-time-buy Orders for Discontinued Goods. Seller’s acceptance of Orders for Discontinued Goods shall be subject to Goods availability and on Seller’s delivery schedule. All Orders for Discontinued Goods shall be accepted on a non-cancellable, non-returnable basis. If, due to circumstances beyond Seller’s control, Seller is unable to deliver the full quantity of ordered Discontinued Goods, the balance of the undelivered quantity shall be cancelled, and Seller shall have no further obligations to Buyer.

19. BUYER’S OBLIGATION OF ASSISTANCE (APPLICABLE TO SERVICES).
To the extent Seller is required to perform Services for Buyer, Buyer shall provide Seller all information reasonably necessary for Seller to perform Services, including any plans, plant layouts, wiring instructions, operational information, previous studies, reports, or other information relative to the design, installation, and selection of equipment. Buyer shall grant or arrange for Seller to have access, as Seller reasonably requires, to all sites where Seller will perform Services. Buyer shall also provide safe storage of Seller’s equipment, materials, and tools during the performance of Services at Buyer’s or Buyer’s customer’s worksite. Buyer agrees to cooperate as necessary to facilitate Seller’s performance of Services. Buyer covenants that it has fully and accurately disclosed to Seller all general and local conditions that may affect Seller’s performance of Services. Buyer acknowledges that Seller is entitled to rely on information furnished by Buyer in developing its specifications, equipment selection, price, and in performing Services.

20. PROPRIETARY RIGHTS.
Seller shall retain all right, title, and interest in and to any data, information, software programs, tools, specifications, templates, scripts, ideas, concepts, inventions, works of authorship, products, know-how, processes, techniques, and the like used or developed by Seller, its employees, or its subcontractors in connection with Buyer’s Order. Buyer agrees that Seller retains all proprietary rights in and to all products, specifications, designs, discoveries, inventions, patents, copyrights, trademarks, trade secrets, and other proprietary rights relating to Goods or Services. Buyer shall not copy or reverse engineer, or cause or enable any third party to copy or reverse engineer, any Goods. Unless otherwise identified in writing to Seller, no information or knowledge heretofore or hereafter disclosed to Seller in the performance of, or in connection with, the terms hereof shall be deemed to be confidential or proprietary, and any such information or knowledge shall be free from restrictions—other than a claim for patent infringement—as part of the consideration hereof.

21. PATENT, COPYRIGHT, AND TRADEMARK INDEMNIFICATION.
Seller shall hold harmless and indemnify Buyer against all third-party claims, judgments, costs, and fees, including attorney fees, relating to infringement of any patent, copyright, trademark, or design to the extent that (i) the infringing Goods are manufactured, sold, or used, in whole or in part, pursuant to Seller’s specifications, designs, drawings, or other technical data and (ii) provided that Buyer notifies Seller in writing of any such claim as soon as reasonably practicable and allows Seller to control, and reasonably cooperates with Seller in, the defense of any such claim and related settlement negotiations, and has in no way acted to the prejudice of Seller’s ability to control and defend such claims.

To the extent that any Goods are held by a court of competent jurisdiction or are believed by Seller to infringe or otherwise violate a third party’s proprietary rights, Seller may, at its option and expense, either (i) modify the affected Goods to be non-infringing; (ii) obtain for Buyer a license to continue using such Goods on substantially the same terms set forth herein; or (iii) if neither of the foregoing alternatives are reasonably available to Seller, require Buyer to return the infringing Goods and all rights thereto, and refund to Buyer the price paid to Seller by Buyer for the infringing Goods. Seller shall have no obligation under this provision to the extent any claim is based on (i) modifications of Goods or deliverables by a party other than Seller or Seller’s authorized representative; (ii) the combination, operation, or use of Goods with equipment, devices, software, or data not supplied by Seller; (iii) the use or installation of Goods in an environment for which Goods were not intended; (iv) Buyer’s failure to use updated or modified versions of Goods provided by Seller; or (v) the negligent acts or omissions or willful misconduct of Buyer, its employees, representatives, or affiliates.

This section, and the indemnification provided herein, does not apply to any Goods manufactured, sold, or used, in whole or in part, pursuant to Buyer’s specifications, designs, drawings, or other technical data.

THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF SELLER AND BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.

22. CONFIDENTIALITY.
Buyer shall keep confidential and not directly or indirectly disclose to any third party any Confidential Information of Seller without Seller’s prior written consent. “Confidential Information” includes, but is not limited to, business, financial, statistical, and commercial information, pricing, technical data and information, formulae, analyses, trade secrets, ideas, methods, processes, know-how, computer programs, designs, data sheets, schematics, configurations, and drawings. Confidential Information does not include information that (i) is or becomes generally available to the public other than as a result of disclosure by Buyer; (ii) is or becomes available to Buyer on a non-confidential basis from a source other than Seller when such source is not, to the best of Buyer’s knowledge, subject to any confidentiality obligation with Seller; or (iii) was independently developed by Buyer without reference to Seller’s Confidential Information, and Buyer can verify development of such information by written documentation.

23. SAFETY WARNINGS.
Buyer acknowledges that the Goods can cause death, personal injury, or property damage when used, and if they are used, operated, maintained, stored, or disposed of in any manner not in compliance with the applicable data sheet, specification, user manual, Seller documentation, or applicable directive, law, regulation, or control. Buyer is solely responsible for determining the fitness or suitability of a particular Good for any particular purpose or application, and for ensuring that the Goods are used, operated, maintained, stored, and disposed of in full compliance with all applicable Seller instructions and guidance, and with all applicable directives, laws, regulations, or controls. Seller has no liability whatsoever for Buyer’s use, operation, maintenance, storage, or disposal of the Goods.

24. INDEMNIFICATION.
Each Party (the “Indemnifying Party”) agrees to indemnify, defend, and hold harmless the other Party, its officers, directors, and employees (the “Indemnified Party”) from and against any and all liabilities, losses, expenses, liens, claims, demands, and causes of action (“Claims”) for death, personal injury, or property damage arising out of any negligent act or omission of the Indemnifying Party in the performance of Buyer’s Order, except to the extent such Claims are contributed to by (i) the negligence or willful misconduct of the Indemnified Party, or (ii) the negligence or willful misconduct of any third parties.

Buyer agrees to indemnify, defend, and hold harmless Seller, its officers, directors, and employees from and against any and all Claims, including Claims asserted by third parties, related to any Goods manufactured or Services performed in whole or in part to Buyer’s designs, or attributed to equipment, information, or materials furnished by Buyer to Seller. The Indemnified Party agrees to (i) notify the Indemnifying Party in writing of any Claims as soon as reasonably practicable; (ii) allow the Indemnifying Party to control the defense of any such Claim and related settlement negotiations; and (iii) reasonably cooperate with the Indemnifying Party in such defense.

25. LIMITATION OF LIABILITY.
Notwithstanding any other provision herein, under no circumstances shall Seller be liable to Buyer or any third party for any consequential, special, incidental, indirect, multiple, administrative, or punitive damages, or any damage of an indirect or consequential nature arising out of or related to Seller’s performance under Buyer’s Order. This includes, without limitation, loss of use, loss of revenues, loss of anticipated profits, and cost of capital, whether based upon breach of Buyer’s Order, contract, warranty, negligence, statutory duty, or any other type of claim, and whether grounded in tort, contract, civil law, or other theories of liability, including strict liability, even if advised in advance of the possibility of such damages.

Seller’s total liability to Buyer arising from or related to Buyer’s Order, including, but not limited to, its liability for indemnity, defense, and hold harmless obligations, is limited to the lesser of (i) the amount paid by Buyer to Seller under Buyer’s Order, or (ii) $10,000,000 USD. To the extent that this limitation of liability conflicts with any other section or provision herein, such provision shall be regarded as amended to whatever extent required to make such provision consistent with this section.

26. LAWFUL USE OF GOODS.
Buyer warrants and represents that all Goods purchased by Buyer from Seller shall be used only for or in connection with lawful purposes, and that such use shall strictly comply with all applicable laws and regulations, including the laws and regulations of the jurisdictions in which the Goods are purchased, resold, integrated, or used.

27. ETHICS AND VALUES.

Seller is committed to uncompromising ethical standards, strict adherence to laws and regulations, and customer satisfaction. Buyer is encouraged to communicate any concerns or questions regarding the ethics and values of Seller via the Prosource Industries Ethics and human resources department.

28. ORDER OF PRECEDENCE.

Any inconsistency between Seller’s terms and conditions, Buyer’s Order, or any other documents related thereto, shall be resolved by giving precedence in the following order:

Seller’s Special Terms and Conditions (if applicable);Seller’s General Terms and Conditions of Sale;Seller’s specifications (if applicable);Statement of work or scope of Services (if applicable);Seller’s written acknowledgement of Buyer’s Order;Seller’s Offer; andForm of Buyer’s Order.

The controlling version of these terms and conditions is in the English language. In the event of any discrepancies between the English version and any translated versions of these terms and conditions into other languages, the English version shall prevail.

29. GOVERNING LAW.

The performance of the Parties, and any judicial or arbitration proceedings, shall be construed and governed in accordance with the laws of the country (or if in the U.S., the state, or if in Canada, the province) in the jurisdiction of incorporation or formation of the Seller. Neither (i) the United Nations Convention on Contracts for the International Sale of Goods; (ii) the 1974 Convention on the Limitation Period in Contracts for the International Sale of Goods; nor (iii) the Protocol Amending the 1974 Convention (held at Vienna, Austria, on April 11, 1980) apply in any manner to the interpretation or enforcement of Seller’s Offer or Buyer’s Order.

30. DISPUTES AND ARBITRATION.
The Parties shall attempt to resolve any dispute, controversy, or claim arising under or relating to Buyer’s Order, including their interpretation, performance, or termination. If the Parties are unable to resolve such dispute, either Party may refer the dispute to arbitration. The arbitration shall be conducted in the language of the Seller’s Offer and in accordance with the Rules of Arbitration of the International Chamber of Commerce, which shall administer the arbitration and act as appointing authority. The arbitration, including the rendering of the decision and/or award, shall take place in the capital city of the country (or if in the U.S., the state, or if in Canada, the province) in the jurisdiction of incorporation or formation of the Seller, and shall be the exclusive forum for resolving the dispute, controversy, or claim. The arbitrator shall make the final determination as to any discovery disputes between the Parties. Examination of witnesses by the Parties and by the arbitrator shall be permitted. A written transcript of the hearing shall be made and furnished to the Parties. The cost of this transcript shall be borne equally by the Parties. The award or decision of the arbitrator shall state the reasons upon which the award or decision is based and shall be final and binding upon the Parties. The prevailing Party shall be entitled to compensation for the expense of the arbitration, including, but not limited to, the award of attorneys’ fees, at the discretion of the arbitrator. Both Parties waive their right to any appeal under any system of law. The award shall be enforceable before any court of competent jurisdiction upon the application to such court by either Party. The arbitrator shall have no authority to award any of the types of damages excluded herein, and shall be so instructed by the Parties.

31. RELATIONSHIP OF THE PARTIES.
Each Party is an independent contractor. Neither Party shall have authority to bind the other except to the extent authorized herein. Neither Seller’s Offer nor Buyer’s Order are intended by the Parties to constitute or create a joint venture, pooling arrangement, partnership, or formal business organization of any kind. The Parties shall act as independent contractors at all times, and neither Party shall act as an agent for the other. The employees of one Party shall not be deemed employees of the other Party.

32. NO THIRD-PARTY BENEFICIARIES.
Buyer’s Order is for the sole benefit of the Parties and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of Seller’s terms and conditions.

33. NOTICES.

All notices, requests, consents, claims, demands, waivers, and other communications related to Buyer’s Order (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of Buyer’s Order or to such other address that may be designated by the receiving Party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided herein, a Notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the Notice has complied with the requirements of this section.

34. ASSIGNMENT.

Neither Party may assign, delegate, sublicense, or transfer—whether by operation of law or otherwise—their obligations or rights hereunder without the other Party’s written consent. Any such assignment, delegation, sublicense, or transfer without such written consent is void and of no effect. If consent is given, the obligations and liabilities of Buyer’s Order shall be binding upon and inure to the benefit of the successors and assigns of the Parties. Notwithstanding this provision, Seller may subcontract work to be performed under Buyer’s Order to third parties or assign or novate Buyer’s Order to a parent, subsidiary, or affiliate company of Seller. In addition, without securing such prior consent, Seller shall have the right to assign Buyer’s Order to any successor by way of merger, consolidation, or the acquisition of substantially all of the business and assets of Seller relating to the subject matter of Buyer’s Order; provided, however, that such successor shall expressly assume all of the assignor’s obligations and liabilities under Buyer’s Order.

35. WAIVER; REMEDIES; COSTS.

None of the sections, terms, conditions, or provisions herein shall be waived by any act or knowledge on the part of Seller, except by a written instrument signed by a duly authorized representative of Seller. The waiver by Seller of any term, condition, provision, or right hereunder, or the failure to enforce at any time any of Seller’s terms and conditions or any rights with respect thereto, is not a continuing waiver or a waiver of any other rights or of any material breach or failure of performance by Buyer. The remedies herein reserved or created for Seller shall be cumulative and in addition to any other or further remedies provided at law or in equity. Seller may remedy any breach of the terms or conditions hereof without waiving the breach remedied, or without waiving any other prior or subsequent breach. Buyer shall pay all of Seller’s costs and expenses, including attorneys’ fees, incurred by Seller in exercising any of its rights or remedies hereunder or enforcing any of the terms or conditions hereof.

36. SEVERABILITY.

If any term, condition, or provision herein is invalid, ineffective, or unenforceable under present or future laws, then the remainder of the terms, conditions, and provisions shall remain in full force and effect, and shall in no way be affected, impaired, or invalidated.

37. PARTIES.

The Parties to any Offer, Order, or associated transaction are Seller and Buyer, as identified above. Unless expressly stated otherwise herein, no other persons, parties, or entities have any rights or receive any benefits hereunder. No other Prosource subsidiaries, affiliates, or business units, other than Seller, have any obligations or duties hereunder and are unrelated third parties for all purposes.

38. HEADINGS.

The headings used herein are for reference purposes only and shall not affect the meaning or interpretation of any term, condition, or provision herein.

39. SURVIVAL.

Any section, term, condition, or provision herein that contemplates performance or observance subsequent to any termination or expiration of Buyer’s Order, or which by its nature should survive, shall survive any termination or expiration of Buyer’s Order and continue in full force and effect.