Terms & Conditions

E & O MECHANCIAL, INC.’S STANDARD TERMS AND CONDITIONS

Unless otherwise stated in writing and signed by E & O Mechanical, Inc. (the "Company") and the other contracting parties, the following Standard Terms and Conditions (the "Terms") apply to and are hereby incorporated in all contracts, agreements, Purchase Orders, standards of work, change orders, and related business or contractual relationships of any kind (each a "Contract") between Company (including its affiliates and divisions) and its customers, suppliers, contractors and manufacturers (each a "Contracting Party") in which these Terms are incorporated by reference.

1. Term and Termination.

A. Term. Except as otherwise expressly set forth in the Contract, the term of the Contract (the "Term") will begin on the date it is issued (the “Effective Date”) and end 365 days thereafter (the "Termination Date"), unless extended or earlier terminated in accordance with this Section 1.

B. Termination for Convenience. Company may terminate the Contract at any time after the Effective Date without cause upon 30 days' prior written notice to Contracting Party.

C. Termination for Cause. Either party (the "Non-Defaulting Party") may terminate the Contract if the other party (the "Defaulting Party") breaches any of its material duties or material obligations under the Contract, by delivering to the Defaulting Party a written default notice (the "Default Notice"). The Default Notice shall specify (i) the default(s) in reasonable detail, (ii) the action necessary to cure the default(s), and (iii) the cure period within which the Defaulting Party must cure the default(s), which cure period shall not be less than thirty (30) days for a payment default, and ten (10) days for a performance default (the "Cure Period"). If the Defaulting Party cures the default(s) within the applicable Cure Period to the reasonable satisfaction of the Non-Defaulting Party, the Non-Defaulting Party will rescind the Default Notice. If the Defaulting Party does not cure the default(s) during the applicable Cure Period, the Contract will terminate as of the close of business on the last day of the applicable Cure Period.

D. Termination for Insolvency.

i. Company may terminate the Contract if Contracting Party (i) provides the Company grounds for insecurity, (ii) files for bankruptcy; (iii) becomes or is declared insolvent or is the subject of any proceedings related to its liquidation, insolvency or the appointment of a receiver or similar officer for it; (iv) makes an assignment for the benefit of all or substantially all of its creditors; (v) is unable to pay its debts generally as they come due; or (vi) enters into an agreement for the composition, extension or readjustment of substantially all of its obligations, by giving written notice to Contracting Party of its intention to terminate the Contract as of a date specified in the written notice, which date will not be less than ten (10) days after the date of the written notice, during which time Contracting Party may cure such default by causing any such proceeding to be terminated or dismissed, or by providing Company with verification of solvency or otherwise of its ability to perform its obligations hereunder. If Contracting Party fails to cause such proceeding to be terminated or dismissed or otherwise to provide Company with the information set forth above, the Contract will terminate on the date set forth in the written notice.

ii. Contracting Party may terminate the Contract if Company (i) files for bankruptcy; (ii) becomes or is declared insolvent or is the subject of any proceedings related to its liquidation, insolvency, or the appointment of a receiver or similar officer for it; (iii) makes an assignment for the benefit of all or substantially all of its creditors; (iv) is unable to pay its debts generally as they come due; or (v) enters into an agreement for the composition, extension or readjustment of substantially all of its obligations, by giving written notice to Company of its intention to terminate the Contract as of a date specified in the written notice, which date will not be less than ten (10) days after the date of the written notice, during which time Company may cure such default by causing any such proceeding to be terminated or dismissed, or by providing Contracting Party with verification of solvency or otherwise of its ability to perform its obligations hereunder. If Company fails to cause such proceeding to be terminated or dismissed or otherwise to provide Contracting Party with the information set forth above, the Contract will terminate on the date set forth in the written notice.

E. Transition Assistance.

i. Upon expiration or termination of the Contract for any reason, Contracting Party shall, at Company’s request, provide transition assistance services as reasonably requested by Company for a period of up to ninety (90) days after the Termination Date (the "Transition Assistance Period").

ii. During the Transition Assistance Period, Contracting Party shall cooperate with Company and its designees and provide the assistance reasonably requested by Company or its designees to allow Company’s business operations to continue without material interruption or adverse effect and to facilitate the orderly transfer of responsibility for the goods and services then being provided by Contracting Party to Company or its designees, including the following:

1. Continuing to provide any or all of the goods and to perform any or all of the services then being furnished by Contracting Party at the rates set forth in the Contract;

2. Developing and implementing, with the assistance of Company or its designees, a plan for the transition of the goods to Company or its designees upon such terms and at such rates as shall be mutually agreed upon between the Parties; and

3. Providing training for Company personnel or its designees in the performance of any services then being performed by Contracting Party upon such terms and at such rates as shall be mutually agreed upon between the Parties.

F. Survival of Certain Provisions. The provisions of the Contract and these Terms that by their nature should survive any termination of the Contract, including, but not limited to, Sections 1.E., 1.F., 2, 4, 5, 13, 14, 16, 17, 18, 20, 25, 26, and 27,,shall survive such termination.

2. Disputes.

A. The sole and exclusive venue for any and all litigation arising out of or related to a Contract shall be the state and federal courts located in Essex County, Massachusetts. Contracting Party waives any and all arguments that it may have that such lawsuit must be brought in an inconvenient forum. Contracting Party consents to the personal jurisdiction of the state and federal courts located in Essex County, Massachusetts as well as any other venue in which Company must bring suit in order to obtain an injunction or take collection actions.

B. In the event of any litigation between the parties arising out of or related to this Contract, the prevailing party, in addition to such other relief that it may be entitled, shall be entitled to payment of all of its attorneys' fees by the other party.

3. General.

A. Contracting Party shall not sub-contract any work under a Contract without the prior written consent of Company.

B. In the event any product or service furnished by Contracting Party hereunder becomes the subject matter of intellectual property litigation, Contracting Party shall, upon prompt notice in writing from Company, defend or settle such litigation at Contracting Party's expense, and Contracting Party shall indemnify Company from any and all damages and costs as finally determined by a court of competent jurisdiction in any suit by reason of the sale or normal use of any product sold to Company hereunder, and from reasonable expenses including attorney fees incurred by Company, in the defense of such suit if Contracting Party does not undertake the defense thereof.

C. Contracting Party expressly warrants that the prices charged herein are not in excess of the prices currently charged to others for the same product(s) or services for like or similar quantities.

D. If Contracting Party is purchasing goods or services from Company, then payment shall be made within ten (10) days of Company's invoice. Without waiving any of Company rights or remedies resulting from any breach of this Agreement by Contracting Party, Contracting Party agrees to pay to Company an amount equal to five percent (5%) of any invoice not timely paid and to further pay interest on such delinquent payment at the lesser of twelve percent (12%) per annum or the maximum rate allowed by applicable law.

E. Contracting Party is not granted any express or implied rights or authority to assume or create any obligation or responsibility on behalf of Company or to bind Company in any manner. Under no circumstance is Contracting Party considered to be, nor shall the Contracting Party hold itself out as, an employee, agent or partner of Company.

4. Indemnification.

A. Indemnification by Contracting Party. Contracting Party will, at its expense, indemnify, defend and hold harmless Company, and its personnel, successors and assigns (the "Indemnitees"), from and against all damages, losses, claims, liabilities and expenses (including all of Company's attorneys’ and other professional fees, settlements and judgments (collectively, “Losses”) claimed by any third party in any claim, demand, suit or proceeding arising out of or in connection with any of the following:

i. The breach of this Contract or misrepresentation by Contracting Party of its obligations or warranties to Company under the Contract;

ii. The death or bodily or personal injury of, or other legally enforceable damage incurred by, any agent, employee, customer, business invitee, or business visitor or other person caused by the breach of contract, breach of warranty, gross negligence, intentional or willful misconduct, errors or omissions of Contracting Party or its agents or subcontractors;

iii. The damage, loss or destruction of any real or personal property caused by the breach of contract, breach of warranty, gross negligence or willful misconduct of Contracting Party or its employees, contractors or subsidiaries; and

iv. Contracting party hereby indemnifies, defends, holds harmless and releases and discharges Company for any claim(s) of Contracting Party's personnel, suppliers, subcontractors and agents, including but not limited to claims under Wage and Hour Act, the Fair Labor Standards Act, the Retaliatory Employment Discrimination Act, the Employment Retirement Income Security Act, the Consolidated Omnibus Budget Reconciliation Act, the Age Discrimination in Employment Act, Title VII of the Civil Rights Act of 1964, Section 1981 of the Civil Rights Act as amended, the Americans With Disabilities Act, the Family and Medical Leave Act, and/or any claims for discrimination, wrongful discharge (actual or constructive), breach of express or implied contract, unpaid wages and/or vacation and/or sick leave pay, intentional and/or negligent infliction of emotional distress, defamation, and/or any other cause of action based on federal, state, local, common law, and/or otherwise.

B. Indemnification Procedures. The following procedures will apply to all claims for indemnification under this Section 4:

i. Promptly after receipt by Company of written notice of the commencement or threatened commencement of any civil, criminal, administrative or investigative action or proceeding involving a claim for which an Indemnitee may be entitled to indemnification, written notice of such claim will be conveyed to Contracting Party. However, no failure so to notify the Contracting Party will relieve the Contracting Party of its obligations under the Contract.

ii. Each Indemnitee will have the right to select its own legal counsel and experts and to control its own defense in any negotiations or litigation pertaining to a claim covered by this Section 4 (notwithstanding that Contracting Party is bearing the cost of the defense for the Indemnitees). However, to the maximum extent possible permitted by the circumstances and ethical considerations, counsel for Contracting Party and counsel for the Indemnitees will work together to avoid duplication of effort or expense, in attorney fees or otherwise. In addition, Contracting Party and the Indemnitees will make good faith efforts to coordinate their activities so as to take consistent positions in the course of negotiations or litigation.

iii. Contracting Party will obtain the prior approval, which approval will not be unreasonably delayed or withheld, from Company in respect of any proposed settlement of any claims before entering into any settlement of such claims or ceasing to defend such claims.

iv. If Contracting party does not participate in the defense of a claim covered by this Section 4, the Indemnitees will have the right to defend the claim in such manner as they may deem appropriate, at Contracting Party's cost and expense. Contracting Party shall promptly reimburse the Indemnitees for all such costs and expenses, demand for which may be made periodically.

v. Notwithstanding anything to the contrary in a Purchase Order, no limitations on damages or remedies set forth in the Purchase Order will apply to an Contracting Party’s obligations to indemnify, defend and hold the Indemnities harmless against losses claimed under this Section 4. Indemnity obligations under this Section 4 shall survive the termination, cancellation or non-renewal of the Contract.

5. Liability Limitation; Force Majeure.

A. Direct Damages Limitation. Company's aggregate liability to Contracting Party for any direct damages, whether based upon contract, tort or any other legal theory resulting from or in any way connected with the performance by Company of its covenants and agreements under a Contract, shall not exceed in the aggregate an amount equal to all charges paid by Company to Contracting Party (or by Contracting Party to Company as the case may be) under the Contract.

B. Liability for Negligence. To the fullest extent permitted by law, the Company shall not be liable to the Company for its negligence in the performance of its duties under the Agreement and the Contracting Party releases Company from liability for such negligence; provided, however that the aforementioned limitation and release shall not apply to gross negligence or intentional acts by Company.

C. Force Majeure. Except for payment obligations, any delay or failure of either party to perform its obligations will be excused if and to the extent that the party is unable to perform due to an event or occurrence beyond its reasonable control and without its fault or negligence, such as: acts of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority (whether valid or invalid); embargoes; fires; floods; earthquakes; explosions; natural disasters; riots; wars; sabotage; inability to obtain power; or court injunction or order. Contracting Party’s inability to perform as a result, or delays caused by, Contracting Party’s insolvency or lack of financial resources is deemed to be within Contracting Party’s control. The change in cost or availability of materials or components based on market conditions, Contracting Party's actions, or contract disputes or any labor strike or other labor disruption applicable to a party or any of its subcontractors or Contracting Party's, will not excuse such Party’s performance (under theories of force majeure, commercial impracticability or otherwise), and each party assumes these risks. As soon as possible (but no more than one full business day) after the occurrence, the affected party will provide written notice describing such delay and assuring the other party of the anticipated duration of the delay and the time that the delay will be cured. During a delay or failure to perform by Contracting Party, Company may at its option: (a) purchase goods from other sources and reduce its schedules to Contracting Party by such quantities, without liability to Contracting Party; (b) require Contracting Party to deliver to Company at Company’s expense all finished goods, work in process and parts and materials produced or acquired for work under the Contract; or (c) have Contracting Party provide goods from other sources in quantities and at a time requested by Company and at the price set forth in the Contract. In addition, Contracting Party at its expense will take all necessary actions to ensure the supply of goods to Company for a period of at least thirty (30) days during any anticipated labor disruption or resulting from the expiration of Contracting Party’s labor contracts. If delay on the part of Contracting Party lasts longer than thirty (30) days, Company may terminate the Contract without liability and Contracting Party shall reimburse Company for costs associated with the termination.

6. Notices. All consents, written notices, requests, demands, and other communications to be given or delivered under the Contract will be in writing and will be deemed given: (i) when delivered personally; (ii) on the second business day when sent by a nationally recognized overnight courier; and (iii) on the third business day after being mailed by certified mail, return receipt requested. All notices to Company shall be sent to 800 Broadway, Haverhill, MA 01832, to the attention of Cathy Menzel. All notices to Contracting Party shall be sent to its address as set forth on the Contract. Either party may, upon written notice to the other party, change its notice address under the Contract.

7. Assignment. The Contract will be binding upon and inure to the benefit of each party and its successors and permitted assigns, but neither the Contract nor any of the rights, interests or obligations under the Contract may be assigned by either party without the prior consent of the other party.

8. Restriction on Hiring. Both parties agrees not to hire or solicit for hire any employee or subcontractor of the other during the Term of the Contract and for a period of one year after the termination or expiration of the Contract; provided, however, that the foregoing restriction shall not apply to the extent that such employee may answer a public advertisement for an open position.

9. Approvals and Similar Actions. Where agreement, approval, acceptance, consent or similar action by Contracting Party is required by any provision of the Contract, such action will not be unreasonably delayed or withheld.

10. Modification; Waiver. A Contract may be modified only by a written instrument duly executed by the parties. No delay or omission by either party to exercise any right or power under a Contract will impair such right or power or be construed to be a waiver of the right or power. A waiver by either party of any of the obligations to be performed by the other party or any breach thereof will not be construed to be a waiver of any succeeding breach thereof or of any other obligation contained in the Contract.

11. No Third-Party Beneficiaries. Each Contract is for the sole benefit of the parties and is not intended to, and shall not, confer any rights or benefits on any third person.

12. These Terms may be amended from time to time. Amendments will be posted on http://www.eomech.com/termsandconditions and will be effective 30 days after posting. No other notice will be given or is required to be given.

13. Severability. If any term of the Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, the term will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law. The remaining provisions of the Contract will remain in full force and effect.

14. Governing Law. The Contract will be governed by the laws of the State of Massachusetts and the United States of America. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded.

15. Entire Agreement. Except as otherwise expressly provided in a writing signed by both parties, the Contract, together with the attachments, exhibits, supplements or other terms of Company specifically referenced therein, and these Terms constitute the final, entire, and exclusive agreement between the parties with respect to the subject matter hereof. In the event of a conflict between these Terms and another provision of the Contract, the other provision of the Contract shall control, but such control shall be limited to the greatest extent possible.

16. Claims by Contracting Party. Any legal action by Contracting Party under any Contract must be commenced no later than one (1) year after the breach or other event giving rise to Contracting Party’s claim occurs, or Contracting Party becomes aware of the existence (or facts and circumstances giving rise to the existence) of such claim, whichever occurs first.

17. Battle of the Forms Not Applicable. The parties have agreed and it is their intent that the battle of the forms described in Section 2-207 of the Uniform Commercial Code or its equivalent law or statute shall not apply to these Terms or to any invoice or acceptance form of Contracting Party relating to these Terms. It is the parties’ intent that these Terms shall exclusively control the relationship of the parties, and in the event of any inconsistency between any invoice or acceptance form sent by Contracting Party to Company and these Terms, these Terms shall control.

18. Remedies Cumulative. Each of the rights and remedies reserved to Company in these Terms shall be cumulative and the assertion of any party of any right or remedy shall not preclude the assertion by such party of any other rights or the seeking of any other remedies.

19. Notice of Labor Disputes. Whenever an actual or potential labor dispute is delaying or threatens to delay the timely performance of a Contract, Contracting Party agrees to give prompt notice thereof to Company. Such notice shall include all relevant information with respect to such dispute.

20. Confidentiality.

A. All information typically regarded as confidential and proprietary that has been or may hereafter be disclosed or discovery in any form, whether in writing, orally, electronically, visually or otherwise, including but not limited to any and all specifications, drawings, technical information, data, patents, copyrights, inventions, designs, discoveries, improvements, formulae, processes, trade secrets, customer lists, contacts, customer quantity and technical requirements, product pricing information, geographic and sales data, financial information and business strategy information furnished to Contracting Party hereunder or otherwise acquired by Contracting Party and pertaining to the Company (the "Confidential Information") shall remain the property of Company, shall be held in confidence and shall be returned at Company’s request. Such Confidential Information shall be used in complying with the Contract and may only be used for other purposes upon such terms as may be agreed upon by Company in writing. Contracting Party agrees that it shall not disclose or use the Confidential Information in any other form or manner, including but not limited to produce, manufacture, package or sell any products, to compete with Company, or to aid any other company in competing in Company, so long as such Confidential Information is not generally known to the public. The Contracting Party shall be responsible for any violation of this Section 20 by any third parties that the Contracting Party provides Confidential Information to. Contracting Party shall obtain a confidentiality agreement, in a form acceptable to Company, from any third party receiving Confidential Information.

B. As promptly as practicable (and in any event within ten (10) days) after the earlier of the completion of the Contracting Party’s obligations under, or the termination of, the Contract, the Contracting Party will return or, with the consent of Company, destroy, all of the Confidential Information, except for business records required by law to be retained by the Contracting Party, and upon request of the Company shall deliver an affidavit signed by an officer of the Contracting Party attesting to the destruction of the Confidential Information.

C. If the Contracting Party is requested, as part of an administrative or judicial proceeding, to disclose any of the Company’s Confidential Information, the Contracting Party will, to the extent permitted by applicable law, notify the Company of such request as promptly as practicable (and in any event within five (5) Business Days after receiving the request) and cooperate with the Company, at the Contracting Party’s expense, in seeking a protective order or similar confidential treatment for such Confidential Information.

D. The covenants of Contracting Party under this Section 20 shall survive the expiration or termination of this Agreement, are unconditional, and do not depend on the performance or nonperformance of any other provision of this Agreement. Since damages for violation of this Section 20 may be difficult to ascertain, and since violation of this Section 20 may result in irreparable injury to Company for which money damages alone may not adequately compensate Company, Company shall be entitled to injunctive relief to prevent any breach of this Section 20, or any continuing breach of this Section 20, as well as any other relief available to it at law or in equity.

21. Acceptance. A Purchase Order becomes a binding contract, subject to the terms and conditions hereof, when accepted by the acknowledgment or when any shipment is made by the Contracting Party to Company or its designee pursuant to this Purchase Order, or upon passage of fifteen (15) days, if no objection thereto is received by Company from the Contracting Party.

22. Inspection and Rejection.

A. Products covered by a Purchase Order shall be subject to inspection and tests by Company at any time or place as specifically provided herein; provided, however, that nothing herein shall obligate Company to perform any inspection.

B. Company may reject any item (hereafter a “Product”) that, when inspected or thereafter used by Company, a subsequent purchaser or consumer, (a) fails in any way to conform to the specifications of the Purchase Order, (b) is unable to maintain its quality standard for the duration of the Product’s shelf life due to Contracting Party’s acts or omissions, or (c) fails to meet any other representations and warranties of this Agreement with respect thereto (each, a “Non-Conforming Product”). Contracting Party agrees to take back any Non-Conforming Product rejected by Company and (x) to correct any defects therein within a reasonable time after tender or (y) replace them at Contracting Party’s own expense, as Company shall direct. Contracting Party shall bear any incremental costs associated with the rejection of Non-Conforming Product. If Contracting Party fails or is unable to correct, replace or destroy any Non-Conforming Product, Company may, in its sole discretion, direct third parties to do so and Contracting Party shall assume all reasonable costs and risks thereof. Contracting Party shall reimburse or credit Company for the invoiced cost of any Non-Conforming Product previously paid for by Company that has neither been corrected nor replaced by Contracting Party. Further, Contracting Party shall be responsible for all warehousing, handling freight and insurance costs and expenses relating to the return of Non-Conforming Product. If the Contracting Party fails to replace or correct promptly, Company may otherwise provide by replacement or correction at the Contracting Party's expense, or cancel for default as hereafter provided.

C. Contracting Party shall provide at its expense, all reasonable facilities for inspection and tests. Final acceptance or rejection shall be made within a commercially reasonable time after delivery, but failure to inspect and accept shall not relieve Contracting Party from responsibility for defective Products, nor impose liability on Company therefore. Contracting Party shall bear the risks of rejected supplies after notice of rejection.

D. Inspection, testing and acceptance by Company and/or the Government shall not relieve Contracting Party from responsibility for defects or other failures to meet Purchase Order requirements.

23. Payment if Company is Purchasing Goods or Services from Contracting Party.

A. Payment for the products or services called for hereunder shall be made by Company, as provided herein, after receipt of the products or services, upon the receipt of Contracting Party's invoice, with a bill of lading attached thereto. Payment will be made only on material which has passed inspections of Company.

B. Contracting Party shall place Company Purchase Order numbers on all invoices, packages, and bills of lading, and invoices must show destination to which material was shipped.

C. Company shall not be liable for any federal, state, local or foreign taxes unless separately stated in the Purchaser Order and billed as a separate line item. Company shall not be responsible for any taxes based upon Contracting Party's income or business operations, including without limitation, employment taxes, income taxes or license taxes.

24. Changes to Purchase Orders.

Company may at any time without notice make changes within the general scope of a purchase order with a Contracting Party or manufacturer (a "Purchase Order") relating to any one or more of the following:

1. drawings, design, or specifications;

2. method of shipping or packing;

3. place of delivery;

4. changes of schedule; or

5. other changes applicable to this Purchase Order.

Within ten (10) days after receipt of such a change to a Purchase Order, Contracting Party shall transmit a change order describing in detail the changes in Contracting Party's charge to Company, the computation supporting the proposed changed charge and Contracting Party's ability to make deliveries in the time requested. If Company approves the proposed Change Order, Company will issue a Revised Purchase Order reflecting the price and/or change in the delivery schedule or both.

25. Warranties.

A. The Contracting Party hereby warrants that all articles or equipment furnished hereunder shall be free from defects, that they shall be in full conformity with the specifications, drawings, or samples, and if they are to be installed by the Contracting Party, that they shall function properly when installed. These warranties shall remain in effect for the lesser of one (1) year after the date on which the supplies are delivered to Company or any other longer warranty period provided by the Contracting Party. This warranty shall survive acceptance and payment. Company reserves the specific right to have rejected articles replaced by the Contracting Party, at Company’s option and at the purchase price stipulated in the Contract. Articles rejected shall be returnable to the Contracting Party at full credit at the price charged, plus transportation charges. Company reserves the further right to accept a part of any shipment which fulfills our specifications and to reject any part which does not fulfill such specifications and to consider this Contract breached to the extent of the amount of the rejected articles. If a Contract covers equipment or materials or services thereon, or containers thereof that are required by law to be manufactured, constructed, packaged, labeled, or registered in a prescribed manner such as, but not limited to food, drugs, fabrics, poisons, combustibles, gases or any vehicles, tanks and the like intended for transporting or storing the same, the seller hereby warrants that such equipment, materials, services, and containers shall be in compliance with all applicable federal, state and local laws and regulations. This provision applies whether or not a specification is furnished by Company.

B. Contracting Party represents and warrants to Company that (i) it has good title and marketable title to the goods, (ii) the goods are, and upon delivery to Company will be, free from any liens, claims, encumbrances, and interests of third parties, including, without limitation, Contracting Party’s vendors and sub-contractors and that all of Contracting Party’s vendors and sub-contractors will have been paid to such extent as may be required by law or by Contracting Party’s subcontracts or suborders; and (iii) it has requisite power and authority to transfer title to the goods to Company.

C. Contracting Party represents and warrants to Company that, in performing its obligations under the Order, (i) it will not employ or subcontract with any person who is a "Specially Designated National" ("SDN") as defined from time to time in regulations issued by the Office of Foreign Asset Control of the United States Department of the Treasury; and (ii) Contracting Party is not an SDN.

26. Privity. If the Contracting Party is not the manufacturer of the goods being sold to Company, then Contracting Party assigns any and all rights that it may have in privity with the manufacturer to Company, and the relationship between Company and Contracting Party can be disregarded for purposes of Company enforcing any rights that it or Contracting Party may have against the manufacturer; provided, however, that Company reserves all rights against Contracting Party with regard to Contracting Party’s obligations and representations contained herein.

27. Recalls. Notwithstanding inspection, testing and acceptance of the goods sold to Company by Contracting Party, or the expiration of any warranty period, in the event that it is deemed necessary or appropriate by Company, either in response to government action, in the event of a recall of any material or ingredient included in any Product, or otherwise, to recall any products produced by Contracting Party pursuant to this Agreement due to Contracting Party’s negligence or failure to comply with the terms hereof, Contracting Party agrees to be responsible for all direct and consequential damages and costs of such recall and recovery, including without limitation loss of Products, lost profits, transportation of Products, notices and communications necessary or appropriate to effecting such recall and all costs and expenses incurred in defending actions brought in connection with such recall. The rights and remedies of Company provided in this section are in addition to, and do not limit, any rights afforded to Company by any other clause of this Agreement.