Shoals Technologies Group, Inc.

Updated October 8, 2021

  1. Term. These Terms and Conditions (“Terms”) are controlling for all suppliers and vendors (“Supplier”) that provide any products, goods, or services (the “Products”) to Shoals Technologies Group, LLC or any of its affiliates or subsidiaries (the “Purchaser”). These Terms may be supplemented or amended at any time by the Purchaser, at the Purchaser’s sole discretion.
  2. Products. The Products are listed specifically in Orders (as defined herein) issued by the Purchaser. These Orders may be amended from time to time by the Purchaser.
  3. Orders.
    1. Order. For purposes these Terms, “Order” shall mean a physical document or electronic file issued by Purchaser to Supplier setting forth the general description and quantity of Products that Purchaser is purchasing from Supplier. The Order may have additional documents attached to the Order. In that instance, those additional documents shall become a part of the Order. There shall be no minimum order requirements. Each Order issued pursuant to these Terms shall be subject to and incorporated into these Terms. No additional or different provisions proposed unilaterally by Supplier shall apply and no other terms or conditions set forth by Supplier shall supersede these Terms. Supplier shall be deemed to have acknowledged and accepted the Order upon commencing to fulfill any Order.
    2. Changes. Purchaser may, from time to time, and by notice to Supplier, make changes to the drawings, specifications, materials, packaging, testing, quantity, time or method of delivery or shipment, or similar requirements prescribed in these Terms or in an Order. Changes in Orders must be in writing signed by Purchaser’s purchasing representative, or any other similar personnel designated by the Purchaser. All engineering changes must be implemented by Supplier in accordance with Purchaser’s product or service change request. Purchaser shall, in its sole discretion, determine whether to consent to an Order change proposed by Supplier.
    3. OEM Requirements. Where the Products supplied under any Order will be sold or incorporated into the goods sold by Purchaser to an original equipment manufacturer, whether directly or indirectly through an upper tier supplier (such manufacturer or upper tier supplier, the “OEM Customer”), Supplier shall take such actions as Purchaser deems necessary and within Supplier’s control to enable Purchaser to meet Purchaser’s obligations under the terms and conditions of any purchase order or other document (the “OEM Terms”), including, but not limited to, delivery, packaging and labeling requirements; warranties and warranty periods; intellectual property rights; indemnification; and confidentiality. If there are any conflicts between the provisions of any OEM Terms, these Terms or any Order, Purchaser shall, in its sole discretion, determine which provisions shall prevail.
    4. Quantity.
      1. Quantities listed in each Order as estimated are Purchaser’s best estimate of the quantities of Products it might purchase from Supplier for the term specified in the Order. Any estimates or forecasts of production volumes or program durations, whether from Purchaser or OEM Customers are subject to change from time to time, with or without notice to Supplier, and shall not be binding upon Purchaser. Unless otherwise expressly stated in the Order, Purchaser makes no representation, warranty, guaranty or commitment of any kind or nature, whether express or implied, to Supplier in respect of Purchaser’s quantitative requirements for the Products or the term of supply of the Products.
      2. Time and quantities are of the essence under the Order. Supplier agrees to 100% on-time delivery of the quantities and at the times specified by Purchaser, as stated in the Order and related Releases. Purchaser may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which entitles Supplier to modify the price for Products. Purchaser is not obligated to accept early deliveries, late deliveries, partial deliveries, or excess deliveries.
  4. Shipments.
    1. Delivery. Unless otherwise designated on the Order Incoterms 2010 shall apply to all shipments and the Products shall be shipped Delivered Duty Paid (“DDP”) to the facility designated on the Order (the “Designated Facility”). If Supplier has not made Products ready for delivery in time to meet Purchaser’s delivery schedules, Supplier shall be responsible for additional costs of any expedited or other special transportation.
    2. Packaging; Marking; Shipping; Disclosure; Special Warnings or Instructions.
      1. Purchaser may specify the method of transportation and the type and number of packing slips and other documents to be provided with each shipment. Supplier shall: (1) properly pack, mark, and ship Products according to the requirements of Purchaser, the involved carriers and the country of destination; (2) route the shipments according to Purchaser’s instructions; (3) label or tag each package according to Purchaser’s instructions; (4) provide papers with each shipment showing the Order number, amendment or Release number, Purchaser’s part number, Supplier’s part number (where applicable), number of pieces in the shipment, number of containers in the shipment, Supplier’s name and number, and the bill of lading number; and (5) promptly forward the original bill of lading or other shipment receipt for each shipment according to Purchaser’s instructions and carrier requirements. Electronic packing slips are also required to be sent to Purchaser immediately when the product ships. Those documents shall be emailed to Supplier shall reimburse Purchaser for any liabilities, expenses, and/or costs incurred as a result of any noncompliance with the requirements of this Section 4.
      2. Supplier shall provide Purchaser sufficient warning in writing of any hazardous or restricted material that is an ingredient or part of the Products and provide any special handling instructions that are needed to advise carriers, Purchaser, and their employees regarding the handling, transporting, processing, using, or disposing of the Products, containers, and packing.
    3. Transferable Credits. Supplier shall transfer any credits or benefits (“Custom Credits”) that may result from shipping Products under the terms of these Terms or any Order to the Purchaser (or the applicable OEM Customer) and provide any documentation, certification, and/or any other applicable information to facilitate the Custom Credits.
  5. Competitiveness. Supplier agrees to be competitive in terms of delivery, quality, technology, and service and shall give Purchaser the lower of (a) the best prices it offers to any other customer purchasing a comparable volume and mix of Products or (b) the lowest price offered by a direct competitor for the same or substantially similar products. If Purchaser believes that Supplier is not competitive, then Purchaser may promptly notify Supplier in writing of the existence of the non-competitive situation. Supplier shall make every effort to remedy the non-competitive condition. If Supplier fails to do so, Purchaser may terminate all or a portion of an applicable Order.
  6. Prices and Payment Terms.
    1. The price for the Products shall be the price listed in the applicable Order (the “Price”). Supplier represents and warrants that the Price is complete and inclusive of all charges, taxes, and fees and that no other charge, tax, or fee shall be added without Purchaser’s express written consent.
    2. Supplier shall promptly submit correct and complete invoices and packing slips or other agreed billing communications with appropriate supporting documentation and other information reasonably required by Purchaser after delivery of Products (the “Payment Items”) to, and Purchaser may withhold payment until the Payment Items are received and verified. Payment terms shall be Net 60 days following Purchaser’s receipt of the Payment Items. However, if Purchaser pays an invoice in Net 30 days, following Purchaser’s receipt of the Payment Items, Purchaser shall receive a 5% discount on such invoice. Supplier shall accept payment by credit card, check or other cash equivalent, including electronic funds transfer. Purchaser shall pay the Supplier in U.S. Dollars unless another form of currency is specified in an Order.
    3. All amounts due to Supplier shall be considered net of indebtedness of Supplier to Purchaser. Purchaser shall have the right to set-off from any amounts otherwise due from Supplier as to which a bona fide dispute exists for any Order or any other transaction between Purchaser and Supplier.
  7. Product Warranties. Supplier expressly warrants to Purchaser, Purchaser’s affiliates, successors, assigns, and OEM Customers, that all Products delivered or provided to Purchaser shall: (a) be free from defects in design, workmanship, and materials, (b) be selected, designed, manufactured, and assembled by Supplier based upon Purchaser’s and its OEM Customer’s stated use and be fit for the purposes intended by Purchaser and its OEM Customers, (c) conform to all applicable laws, orders, regulations, and standards in countries where the Products are to be sold, (d) be free of all third party rights, liens and encumbrances, and (e) not infringe or contribute to the infringement of any U.S. or foreign patent or patent right or other third party proprietary right (including any patent, trademark, copyright, industrial design rights or other proprietary right or trade secret) (“IP Rights”). The warranty period for the Products shall be the longest of (x) the warranty provided by Purchaser to the OEM Customer, (y) the warranty period provided by the OEM Customer to the end- user/purchaser in which the Product is incorporated, or (z) any warranty period provided by applicable law.
  8. Indemnification. Supplier shall save, defend, indemnify and hold the Purchaser and its officers, affiliates, subsidiaries, employees, servants, agents, successors and assigns, harmless from and against any and all losses, damages, liens, liabilities, costs and expenses (including reasonable attorneys' fees and expenses, as incurred) arising in connection with any and all causes of action, threatened or asserted, charges, complaints, suits, proceedings, hearings, investigations, claims, demands, judgments, orders, decrees, stipulations or injunctions (each a “Claim”) resulting or otherwise arising from or in connection with: (a) Supplier's breach of its obligations, covenants, representations or warranties contained in these Terms or any Order and any misrepresentation made by Supplier in these Terms or any Order; (b) any negligent act, willful omission or willful misconduct of Supplier, its employees or any individuals involved in the fulfillment of Supplier's obligations under these Terms or any Order; (c) violations or alleged violations of any federal, provincial, state or local law, statute, regulation, rule, ordinance, declaration, act, code, order, or government directive by Supplier or its employees, representatives or agents; (d) Supplier's breach of its confidentiality obligations set forth in these Terms, or the breach of the confidentiality obligations set forth in these Terms by Supplier’s employees, (e) injury to, or death of, persons or damage to real and tangible personal property caused by Supplier, its employees, or any individual involved in any manner in the performance of the Services performed under these Terms or any Order, and/or (f) any claims or demands for any violation of any IP Right. The Purchaser shall provide Supplier with prompt written notice (including a copy thereof) of any claim or lawsuit served upon it that is related to these Terms. The Purchaser shall fully cooperate with Supplier and its representatives in the investigation of any claim or lawsuit related to the Products provided under these Terms or any Order. Supplier shall not enter into any settlement agreement, other than for monetary damages, without the Purchaser's prior written approval. The Purchaser shall not unreasonably withhold its approval of the settlement of any claim, liability, or action covered by this indemnification provision provided no admission of liability is made on the part of the Purchaser.
  9. Quality. Supplier shall comply with all quality standards and procedures required by Purchaser and its OEM Customers. Absence any additional requirements from Purchaser or its OEM Customers, the Supplier shall abide by the below minimum quality standards for the Products:
    1. Supplier products must be certified to UL;
    2. Products must conform with the dimensional and performance specifications published in Supplier product portfolios, datasheets, etc.;
    3. Supplier shall participate in key measurable meetings with Purchaser as needed;
    4. Plastic material suppliers shall provide a Certificates of Analysis with each shipment of Product, which confirms its conformance to all batch acceptance requirements;
    5. Supplier shall maintain Product traceability through their own supply chain up to and including finished goods;
    6. Except as otherwise specifically provided in an Order, Purchaser’s remedy for Products that do not conform to the requirements in these Terms or the applicable Order will be to (i) reject the non- conforming Products, (ii) require Supplier, at Purchaser’s option and at no cost to the Purchaser, to either repair or replace the non-conforming Products, and/or (iii) require Supplier to implement, at Supplier’s expense, containment, inspection, sorting, and other quality assurance procedures if Purchaser reasonably determines (through statistical sampling or other quality assessments) that a substantial quantity of incoming Products do not conform to the requirements in these Terms or the applicable Order. Supplier shall respond to non-conformance reports within seven (7) days from Purchaser’s notification thereto, in the understanding that if Purchaser does not receive Supplier’s direction of how to proceed with corrections of defective Products after 24 hours from the corresponding notification by Purchaser, production shutdowns, additional set ups, expedited freight costs (up to and including air freight) to ship Products to Purchaser and/or the OEM Customer, as well as OEM Customer charge backs that become documented to detected quality situations, shall be Supplier’s responsibility and shall be billed accordingly;
    7. If Purchaser rejects any Products, Supplier shall notify Purchaser within five (5) business days after Purchaser´s notice thereof, in the understanding that if no notice is given to Purchaser within said term, Purchaser may scrap the rejected Products without any liability to Supplier. Supplier shall be responsible for the coordination of freight and customs’ operations (if applicable) if Supplier requires rejected Products to be returned to Supplier´s facilities;
    8. At no cost to Purchaser, Supplier shall assist Purchaser in evaluating and resolving any detected quality problems.
    9. At no cost to Purchaser, Supplier shall cooperate with Purchaser to identify and or remedy any defect, default, claim of defect or other problem or quality issue relating to the Products (and related systems and components).
  10. Termination.
    1. Purchaser’s Termination of an Order. Purchaser may terminate an Order, at any time and for any reason, or for no reason by giving not less than seven (7) days written notice. Upon Purchaser’s termination of an Order, Supplier shall be responsible for shipping and/or delivering Products ordered by Purchaser before the termination date to Purchaser. Purchaser’s sole obligation for terminating an Order shall be paying (i) the undisputed invoice amounts for all Products received for which Supplier has not yet been paid, and (ii) Supplier’s reasonable and actual cost for any useable work-in-process, parts and/or raw materials. Payment of the amounts in this subsection shall be paid within one hundred and twenty (120) days upon submission pursuant to this Section 10.
    2. Supplier’s Termination of an Order. Supplier shall not terminate any Orders without the express written consent of the Purchaser.
    3. Termination Claim. Supplier shall furnish to Purchaser, within thirty (30) days after the date of one
      (1) of the events of termination provided for in this Section 10 (or such shorter period as may be required by an OEM Customer), Supplier’s termination claim, which shall consist exclusively of the items of Purchaser’s obligation to Supplier that are expressly permitted by this Section 10. Purchaser may audit Supplier’s records before or after payment to verify amounts requested in Supplier’s termination claim. Purchaser shall have no obligation for payment to Supplier under this Section 10 if Purchaser terminates an Order because of a default or breach by Supplier.
  11. Default.
    1. Events of Default. Time is of the essence with respect to all of Supplier’s performance obligations hereunder. Supplier shall be in “Default” under these Terms and under any Order if it:
      1. Fails to perform any obligation under these Terms or any Order and, if such non- performance can be cured, fails to cure such non-performance within five (5) business days after notice from Purchaser specifying such non-performance; provided, that if Purchaser’s contract with its OEM Customer does not require notice of default for delay or other breach, then none shall be required in the event of Supplier’s Default under this Section 11;
      2. Fails to provide adequate assurance of performance under these Terms or any Order within three (3) business days after written demand by Purchaser;
      3. Fails to provide any requested Compliance Information (as defined herein); and
      4. Upon a Default by the Supplier, Purchaser shall be able to immediately terminate any Order. Upon a termination pursuant to this Section 11, Purchaser shall have no obligation to pay for any Orders not yet received by the Purchaser.
  12. Purchaser’s Remedies. The rights and remedies reserved to Purchaser in these Terms and each Order shall be cumulative with and in addition to all other or legal or equitable remedies. Supplier shall reimburse Purchaser for any incidental, consequential or other damages (including lost profits) caused by Supplier’s breach of these Terms or for supplying nonconforming Products, including without limitation, costs, expenses, and losses incurred directly or indirectly by Purchaser:
    1. In inspecting, sorting, storing, reworking, repairing or replacing the nonconforming Products;
    2. Resulting from production interruptions;
    3. Customer field service actions or other corrective service actions;
    4. Resulting from personal injury, death or property damage caused by the nonconforming Products. Purchaser’s damages include reasonable attorneys’ fees and other professional fees, settlements and judgments incurred by Purchaser and other costs associated with Purchaser’s administrative time, labor, and materials.
    5. In any action brought by Purchaser to enforce Supplier’s obligations in connection with the production or delivery of Products or transition support, or for possession of property, Supplier acknowledges and agrees that monetary damages are not a sufficient remedy for any actual, anticipatory or threatened breach of these Terms and/or any Order and that, in addition to all other rights and remedies that Purchaser may have, Purchaser shall be entitled to specific performance and injunctive equitable relief as a remedy for any such breach, plus Purchaser’s reasonable attorneys’ fees.
  13. Supplier’s Remedies. In the event of a breach of these Terms or any Order by Purchaser, Supplier’s sole remedy shall be as provided for in Section 10.
  14. Intellectual Property and Confidentiality.
    1. Purchaser’s Intellectual Property. Purchaser does not transfer, license, or otherwise approve of, Supplier’s use of any of Purchaser’s patents, trade secrets, trademarks, service marks, copyrights, mask works, or other IP Rights of Purchaser regarding other information, documents, or property that Purchaser makes available to Supplier under these Terms, other than for what is necessary for Supplier to supply Products to Purchaser.
    2. Infringement. If determined by Purchaser, in Purchaser’s sole discretion, that the Products infringe upon or are likely to infringe upon an IP Right of a third party, at Purchaser’s election and Supplier’s sole expense, Supplier shall: (i) secure a license of the IP Right that permits Supplier to continue supplying the Products to Purchaser; (ii) modify the Products so that they become non-infringing, so long as the modification does not materially alter the operation or performance of the Products; or (iii) replace the Products with non-infringing but equivalent Products.
    3. Confidential Information.
      1. During the duration of these Terms, the parties acknowledge that Confidential Information may be disclosed by the Purchaser to Supplier. All Confidential Information furnished by the Purchaser to Supplier or developed or otherwise acquired by Supplier in the scope of these Terms is the exclusive property of the Purchaser. Any Confidential Information disclosed to Supplier pursuant to these Terms is of a special, unique, extraordinary, unusual and intellectual character that gives it a peculiar value.
      2. Under these Terms, “Confidential Information” shall include, but is not limited to, any know-how, trade secrets, business methods, business techniques business ideas, marketing opportunities, tools, methods, methodologies, drawings, techniques, designs, specifications, source code, customer lists, customer names, customer addresses, pricing information, marketing plans, processes, data, models, technology, systems, inventions, computer programs, software, software programs, hardware, object code, developments, forms, databases, methods of doing business, financial projections, marketing information, market analysis, marketing projects, business processes, business models, personnel information, financial information, product design and business strategies of the Purchaser or OEM Customer, together with other information of the Purchaser or OEM Customer which a reasonable person would conclude is intended to remain confidential, due to its nature or the circumstances under which it is disclosed, and any other non-public information that the Purchaser or OEM Customer designate as proprietary and/or confidential at the time of disclosure. Such Confidential Information consists of any such information whether in oral, printed, written, graphic, electronic, photographic, or other medium.
      3. Under these Terms, Confidential Information shall not include information that: (1) is now or subsequently becomes generally available to the public through no fault or breach on the part of Supplier; (2) Supplier can demonstrate to have had lawfully in its possession without an obligation of confidentiality prior to disclosure hereunder; (3) is independently developed by Supplier without the use of any Confidential Information as evidenced by written documentation; (4) Supplier lawfully obtains from a third-party who has the right to transfer or disclose it and who provides it without any obligation to maintain the confidentiality of such information, or (5) is required to be disclosed by court order or operation of law. Supplier agrees that all Confidential Information shall be considered the confidential and exclusive property of the Purchaser. The parties agree that all data and information and materials, generated, developed or otherwise acquired by Supplier for the Purchaser pursuant to these Terms shall be considered the Confidential Information and exclusive property of the Purchaser.
      4. Supplier acknowledges that in order to perform under these Terms, it may be necessary for the Purchaser to disclose to Supplier Confidential Information and that Supplier will have access to Confidential Information. Supplier agrees that it shall (1) use the Confidential Information solely in connection with its performance under these Terms; (2) protect and maintain the confidentiality of all Confidential Information; (3) disclose the Confidential Information only to those persons, partnerships, corporations or other entities who need to know such information for the purpose of performing under these Terms; (4) not disclose or otherwise provide any of the Confidential Information to any person or entity, for any use whatsoever, except as expressly permitted by these Terms; (5) not use, disclose, transfer, copy, or allow access to any of the Confidential Information in any way that would be detrimental to the Purchaser or any of its affiliates; (6) not remove the Confidential Information from the premises of the Purchaser under any circumstances whatsoever without the prior written consent of the Purchaser, and (7) not use the Confidential Information for Supplier's or any third-party's business or personal advantage.
      5. In the event Supplier is ordered by a court, a regulatory authority or similar agency to disclose any of the Confidential Information to others, Supplier shall notify the Purchaser of such order or demand. The Purchaser shall have the right, at the Purchaser's expense, to take legal action to quash the legal process requiring said disclosure. Supplier shall cooperate with the Purchaser in said legal action. Supplier will comply with such order or demand only after the Purchaser indicates in writing that it shall not resist said disclosure, or the matter has been resolved by an order directing or affirming the disclosure. The confidentiality provisions of this Section 14 herein shall remain in full force and effect upon termination of these Terms. Upon termination of these Terms for any reason or upon expiration of these Terms, Supplier shall immediately return any such Confidential Information that may be in the possession of Supplier.
  15. Force Majeure. Time is of the essence with respect to the performance of any of Supplier’s obligations under these Terms and each Order. Any delay or failure by either party to perform its obligations under these Terms or any Order shall be excused without liability and not be a Default only if, and to the extent that, such delay or failure is caused by an event or occurrence beyond the reasonable control of such party and without its fault or negligence, such as, by way of example, acts of God or the public enemy, fire, flood, earthquake, pandemic or governmental actions regardless of legal validity; provided, however, that written notice of such delay (including the anticipated duration of such delay) is given by the affected party to the other party immediately, but in no event later than five (5) days after the onset of such event or occurrence.
    The parties acknowledge that an increase in the price of raw materials does not constitute excusable non- performance. Prices are not subject to increase, unless specifically stated in an Order or these Terms, and Supplier assumes the risk of any event or cause affecting prices, including without limitation, foreign exchange rates, increases in raw material costs, inflation, increases in labor and other production and supply costs, and any other event which impacts the price or availability of materials or Products. The affected party shall use commercially reasonable efforts to resume performance of its obligations under these Terms as soon as practicable following cessation of such condition.
    If Supplier is unable to perform for any reason, Purchaser may purchase Products from other sources and reduce its purchases from Supplier accordingly without liability to Supplier. Within three (3) business days after written request by the Purchaser, the Supplier shall provide adequate assurances that its nonperformance shall not exceed thirty (30) days. If the Supplier does not provide those assurances, or if the non-performance exceeds thirty (30) days, Purchaser may terminate these Terms by notice given to the Supplier before performance resumes.
  16. Miscellaneous.
    1. Notices. Any notice or other communication to a party required or permitted hereunder shall be made in writing and shall be delivered in person, fax or electronic mail, or overnight courier, postage prepaid addressed to the address of each party provided for in the Order. Any such notice shall be considered to have been received by the other party: (i) if by personal delivery, when such notice was personally delivered, (ii) if by fax or electronic mail and no error message was received, one business day after the date of transmission, or (iii) if sent by a nationally recognized overnight courier, the next business day.
    2. Insurance. Supplier shall obtain and maintain, with insurance companies reasonably acceptable to Purchaser, the insurance coverages listed below or in additional amounts and coverages as may be reasonably requested by Purchaser (or to the extent directed by Purchaser’s OEM Customer(s)), in each case naming Purchaser and its affiliates (as applicable) as loss payee(s) and “additional insured(s)”. Such coverages shall include, without limitation, providing full fire and extended coverage insurance for the replacement value of (i) all Supplier’s property, and (ii) any Purchaser’s Property, both for their full replacement value. Supplier shall furnish to Purchaser a certificate showing compliance with this requirement or certified copies of all insurance policies within ten
      (10) days of Purchaser’s written request.
      The certificate shall provide that Purchaser and, if applicable, OEM Customers, shall receive thirty
      (30) days prior written notice from the insurer of any termination or reduction in the amount or scope of coverage. The existence of insurance does not release Supplier of its obligations or liabilities under these Terms or any Order. Except as otherwise provided in an Order, the minimum coverage is as follows:
      Worker’s compensation Statutory Minimum
      Employer’s liability $1,000,000 / each accident, disease policy limit, disease each employee
      Comprehensive general liability insurance, including contractual liability coverage general aggregate, products & completed operations aggregate $1,000,000 / each occurrence
      $2,000,000 General Aggregate, Products- Completed Operations Aggregate
      Comprehensive automobile liability insurance $1,000,000 / each occurrence combined single limit
      Business Interruption Insurance As specified by Purchaser


    3. Inspection. Purchaser or its OEM Customer may, upon reasonable advance notice to Supplier, inspect production processes and Supplier’s facilities, and, subject to Supplier’s prior written approval, conduct testing at Supplier’s premises for the sole purpose of verifying Supplier’s performance under these Terms or any Order. Purchaser is not required to inspect Products delivered or services performed, and no inspection or failure to inspect by Purchaser shall reduce or alter Supplier’s obligations under any Order.
    4. Relationship of the Parties. Purchaser and Supplier are independent contractors, and nothing in these Terms establishes a partnership or makes either party the agent or legal representative of the other party for any purpose. Neither party has authority to assume or to create any obligation on behalf of the other party.
    5. No Advertising. Supplier shall not advertise, issue any press releases, make any public statements, or otherwise disclose its relationship with Purchaser with respect to any Order or the transactions contemplated hereby including with respect to Purchaser’s OEM Customer(s) without Purchaser’s prior written consent, except as may be required to perform an Order or as required by law.
      Entire Agreement, Captions. These Terms, together with all its, Exhibits and any amendments thereto, and the Supplier Code of Conduct, as provided by the Purchaser, is the entire contract between Purchaser and Supplier with respect to the matters covered herein, and supersedes any prior communications or agreements between the parties about the matters covered herein. Any documents incorporated in these Terms are a part hereof. Unless and to the extent specifically incorporated into these Terms, Purchaser rejects, in advance, all terms and conditions contained on Supplier’s quotation, sales forms, invoices, order acknowledgements or the like and/or any Supplier documents posted on internet websites. Captions in these Terms are for convenience only.
    6. Modification, Waiver, Severability. These Terms may be modified only by a written instrument duly executed by the parties. The failure of either party at any time to exercise any of its rights or any remedy under these Terms shall not be deemed to be a waiver of those rights or remedies on a subsequent occasion or a waiver of any other rights or remedies hereunder. If any portion of these Terms is or becomes invalid or unenforceable under any applicable law or regulation, such portion shall be deemed stricken, but this shall not affect the validity or enforceability of any other provision of these Terms and the rest of these Terms shall remain in full force and effect.
    7. Dispute Resolution. Prior to pursuing any legal remedy against Purchaser, Supplier shall notify Purchaser’s in writing of the dispute and promptly pursue negotiations in good faith. Such negotiations shall be commenced between Purchaser’s Procurement Manager, or another employee as designated by the Purchaser, and an employee of Supplier of at least similar authority.
    8. Controlling Law; Jurisdiction. These Terms and the rights of the parties hereunder shall be governed by, interpreted, and enforced in accordance with the laws of the state of Tennessee, without reference to Tennessee’s conflicts of laws principles. The parties agree and consent to the exclusive jurisdiction of either (i) the Unites States District Court for the Middle District of Tennessee, Nashville Division or (ii) the Circuit Court for Davidson County, Tennessee.
    9. Arbitration. Any dispute, controversy or claim arising out of or in connection with, or relating to, these Terms or any breach or alleged breach hereof shall be submitted to, and settled by, binding confidential arbitration before the American Arbitration Association (“AAA”) and according to the AAA’s then-current Rules of Commercial Arbitration. If the amount in controversy is $100,000 or less (as defined in the demand for arbitration filed by the claimant), the arbitration shall be heard by a single arbitrator appointed pursuant to the AAA’s procedures. If the amount in controversy is greater than $100,000 (as defined in the demand for arbitration filed by the claimant), the arbitration shall be heard by a panel of three (3) arbitrators appointed pursuant to the AAA’s procedures. Unless otherwise agreed by the parties to the claim, the arbitrator(s) shall issue a reasoned award as defined in AAA’s Rules of Commercial Arbitration. The filing fee for the arbitration shall be paid by the party filing the applicable demand for arbitration. All other costs and fees of the AAA and the arbitrator(s) shall be shared equally by the parties to the claim. The arbitration shall be conducted in Nashville, Tennessee and shall be completed as soon as practical after the filing of the demand for arbitration. Each party shall bear its own costs of counsel and litigation costs incurred during the arbitration process; provided, however, that the arbitrator(s) may award the recovery of litigation costs and reasonable attorneys’ fees to the prevailing party as part of any final award. The award of the arbitrator(s) may be reduced to judgment in any court of competent jurisdiction.
      Notwithstanding the foregoing, any party may initiate litigation in any court of competent jurisdiction to seek emergency or preliminary injunctive relief against the other party with respect to matters in which the filing party claims to be suffering immediate and irreparable injury. In such matters, once the court resolves the filing party’s motion for emergency or preliminary injunction, the court action shall be stayed and the case litigated to fruition through arbitration as stated above.
    10. Specific Performance. Notwithstanding anything to the contrary set forth herein, Supplier acknowledges and agrees that the Purchaser would be damaged irreparably in the event any of the provisions of these Terms are not performed in accordance with their specific terms. In those situations where money damages are not an adequate remedy, the Supplier agrees that the Purchaser shall be entitled to seek equitable relief (including without limitation specific performance) in any action situated in any court of the United States or any state thereof or in any foreign jurisdiction having jurisdiction over the parties and the matter.
    11. Assignment; Binding Effect. Neither these Terms nor any Order, nor the rights and obligations set forth herein or under any Order, may be assigned, delegated (including, without limitation, by subcontract) or otherwise transferred by Supplier in whole or in part, voluntarily or involuntarily or by operation of law (including, without limitation, by sale of all or substantially all of its assets, or through any merger, consolidation, exchange of stock or other equity interests that would result in a change of ownership or control of Supplier or otherwise) without the prior written consent of Purchaser. In the event of any approved assignment (including without limitation subcontract), sale or delegation authorized by Purchaser, Supplier retains all responsibility for Products, including all related warranties and claims, unless otherwise expressly agreed in writing by Purchaser. These Terms shall be binding on Purchaser and Supplier and their respective successors and any duly authorized assigns. Supplier warrants to Purchaser that it is under no contractual or other legal obligations, constraints or disabilities that would prevent it from performing these Terms or limit its performance hereunder.
    12. Interpretation. The parties agree that the usual rules of contract construction construing ambiguities against the drafter shall not apply, as the parties are of equal sophistication and bargaining power. Thus, all terms shall be given their fair meaning. When used in these Terms, “including” means “including without limitation” and terms defined in the singular include the plural and vice versa.
    13. Electronic Communication. Supplier shall comply with any method of electronic communication specified by Purchaser in Purchaser’s request for quotation and set forth in these Terms or in any Order, including requirements for electronic funds transfer, Order transmission, electronic signature, and communication. Supplier shall also make commercially reasonable efforts to comply with any modification to Purchaser’s specified method of electronic communication after the date of these Terms.
    14. Survival of Terms. Upon the termination of these Terms, the following provisions shall continue to be binding on the parties for the duration of the applicable statute of limitations, or such shorter period that may be specifically stated in these Terms (i) all terms or provisions providing for the right of Purchaser to take possession of the Purchaser’s Property or to acquire the Seller’s Property; (ii) all terms or provisions that expressly state that they shall survive termination of these Terms or that, by their terms, are intended to be performed following a termination, and (iii) the provisions of Sections 7, 8, 14, and 16.
    15. Counterparts/Facsimile Signatures. These Terms may be signed in one or more counterparts, each of which shall be deemed an original, and all of which when taken together shall constitute one and the same instrument. Facsimile signatures or signatures by electronic mail in PDF version on these Terms shall be binding upon the parties as though they were original signatures.
    16. Subject to Amendment. These Terms shall be subject to amendment, in the Purchaser’s sole discretion. The to-date version of these Terms shall be listed on Purchaser’s website at the following web address:
    17. Compliance. Purchaser is required to provide documentation in order to comply with certain foreign and domestic compliance requirements (“Compliance Requirements”). Supplier shall cooperate with Purchaser in order to provide documentation and information as required for the Compliance Requirements (the “Compliance Information”). In the event Purchaser makes a request for documentation, Supplier shall respond to said request within five (5) business days providing a timeline for which Supplier shall provide the Compliance Information, in no event shall the Supplier take longer than sixty (60) days to provide such Compliance Information to Purchaser.