DreamPak LLC (“Buyer”) offers to purchase goods or services from the seller described on the PO (“Seller”)  only upon the terms and conditions contained herein.  Any of Buyer’s offers shall be deemed accepted and shall become a binding contract on the terms and conditions contained herein upon the earlier of (a) when signed and returned by Seller, or (b) when Seller issues its oral or written acknowledgment, or (c) when Seller commences performance, or (d) when Seller otherwise accepts this offer. If this document is deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms contained herein. Buyer hereby objects to and rejects any additional, different or varying terms proposed by Seller, unless Buyer expressly assents to such terms in writing.  Such proposal of additional, different or varying terms by Seller shall not operate as a rejection of Buyer’s offer unless, and solely to the extent, such variances are in the terms of the description, quantity, price, or place or date of delivery of the Products, and Buyer’s offer shall be deemed accepted without such additional, different or varying terms. By accepting this offer, Seller waives all terms and conditions contained in Seller’s quotation, any verbal agreements, acknowledgments, invoices or other documents which are different from or additional to those contained herein, and all such different or additional terms and conditions shall be null and void and of no effect. Neither Buyer’s subsequent failure to object to any such terms, nor the acceptance of goods or services by Buyer nor inaction by Buyer shall constitute an agreement by Buyer to such additional terms. THIS CONTRACT (INCLUDING ALL ITEMS EXPRESSLY INCORPORATED BY REFERENCE) CONSTITUTES THE FINAL EXPRESSION OF THE TERMS BETWEEN BUYER AND SELLER REGARDING THE PRODUCTS AND IS A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS.  ANY TERMS, CONDITIONS, NEGOTIATIONS OR UNDERSTANDINGS WHICH ARE NOT CONTAINED IN THIS CONTRACT SHALL HAVE NO FORCE OR EFFECT UNLESS MADE IN WRITING AND SIGNED BY BUYER AND SELLER.

1. Delivery and Performance. Time is of the essence. Deliveries are to be made in quantities and at times specified by Buyer. Buyer shall have no liability to pay for goods delivered to Buyer in excess of quantities specified by Buyer. Buyer may change or suspend delivery schedules upon notice to Seller. Buyer, in its discretion, may consider non delivery of any installment of goods a breach of the whole order. Seller must notify Buyer immediately of any delay in performance for any reason. If there is any anticipated delay in the scheduled delivery date, Buyer may, in order to maintain the scheduled delivery date, require Seller (at Seller’s expense) to expedite delivery by performing its obligation on an accelerated premium time basis or by shipping via a speedier, alternate transport means.

2. Price. The price for goods shipped and work performed shall not be due until final acceptance by Buyer. Buyer’s payment shall not be deemed an acceptance. Seller represents that the prices, terms of payment, warranties and services extended to Buyer are no less favorable to Buyer than those extended to any other customer of Seller, as in effect on the date of Buyer’s orders, for substantially similar items and quantities and that prices comply with any applicable government regulations in effect at the time of quotation, sale and delivery. Except as otherwise provided in Buyer’s orders, the price in Buyer’s order is complete. No increase in price is effective, and no additional charges of any type shall be added without Buyer’s express written consent including but not limited to shipping, packaging, labeling, insurance, storage and crating. In addition, the price includes all applicable federal, state and local taxes. Buyer shall not be responsible for any other taxes, excises or fees (including but not limited to income, franchise or personal property taxes) in connection with Seller’s furnishing of the goods and work. In the event Seller reduces its price for substantially similar items and quantities for any other customer of Seller, Seller agrees to reduce the prices of the goods to Buyer correspondingly.

3. Commercial Terms: Seller understands and acknowledges that Buyer’s employees are only authorized to sign contracts for specified dollar amounts and terms. Seller is responsible for ensuring that Buyer’s employees or representatives have a full understanding of the commercial terms of the contract and have the correct authorization to commit Buyer to such goods or services contract. Any contracts that are not signed by an officer of the Buyer with the authority to sign such contract are null and void

4. Shipping and Billing

A.Packaging and Notices. All goods shall be packed by Seller in suitable containers or boxes for protection to permit safe transportation and handling. No charge shall be made by Seller for packaging unless expressly provided for on this PO. For each shipment of goods, Seller shall provide Buyer sufficient advance warning and notice of any hazardous or restricted material that is contained in a Good or a part of the shipment, together with such special handling instructions. Upon shipment of a Good, Seller shall notify Buyer of the shipment date, carrier, and bill of lading/tracking number. All packages must include a packing slip stating the PO number and quantities shipped, with copies of such packing slip to be delivered to Buyer via electronic mail immediately after such PO has been shipped. (collectively, the “Shipment Information”).

B.O.B, Title and Risk of Loss. The F.O.B. point shall be the origin (or such other location as Seller and Buyer may have previously agreed upon in writing), and Seller shall bear all risk of loss or damage to the goods to that point. Title in the goods shall shift to Buyer upon acceptance of the goods, which Seller shall deliver to Buyer free of any liens or encumbrances.

C.Invoices showing higher costs than printed on this PO will be subject to delay and further review. Price changes must be approved in advance by the Buyer in writing. Seller shall issue an invoice to Buyer for all goods ordered by Buyer setting forth in reasonable detail the amounts payable by Buyer under the PO and contain: (a) the PO number, (b) the line-item number, if applicable; (c) Seller’s name; and (d) a copy of the applicable Shipment Information. A variation of plus or minus ten percent (+/-10%) from the PO quantity may be invoiced and will be accepted by Buyer based upon the actual amount delivered. Buyer must give Seller written notice within thirty (30) days after shipment date of goods not received as part of the shipment but for which Seller invoices Buyer. Buyer may withhold and offset payment due to any invoices or related documents that Buyer disputes in good faith or that are incorrectly submitted to Buyer. Buyer shall pay to Seller the prices set forth on this PO net 30 (or such other payment term as Seller and Buyer may have previously agreed upon in writing) of Buyer’s receipt of the invoice. Any sums payable by Buyer to Seller shall be subject to all claims and defenses of Buyer, whether arising from this or any other transaction, and Buyer may set off and deduct against any such sums all present and future indebtedness of Seller to Buyer. Buyer shall not be obligated to pay any amount set forth in an invoice delivered more than 180 days after the date on which the goods referenced in the invoice were delivered. Buyer shall not be liable for any federal, state or local taxes unless separately stated on the PO.

D.No interest, finance or service charge shall be payable.

E.When invoices are subject to discount for prompt payment, the discount period shall begin on the date the invoices are received by Buyer or the date the goods are received, whichever is later

F.Acceptance of any goods or services shall not bind Buyer to accept future deliveries, nor deprive it of the right to return goods already shipped or services already performed.

G.If the goods or services are determined by Buyer to be nonconforming or defective or to not conform to Purchaser’s specifications or any other requirements hereof or if delivery of the goods or services is not in accord with the delivery schedule or completion date, Buyer reserves the right, without liability, in addition to its other rights and remedies, to reject any goods or services (in which event the goods may be returned to Seller at Seller’s expense) and if Buyer elects to terminate all or a portion of this order and to purchase substitute goods or services elsewhere then Seller agrees to pay the excess costs so incurred.

5. Warranties. In addition to all warranties provided by law or by agreement, Seller expressly warrants that all the goods and services covered hereby shall (a) strictly conform to all specifications, drawings, instructions, samples or other description furnished by Seller or specified by Buyer, (b) be merchantable (as such term is defined in the Uniform Commercial Code) and free from defects in design, materials, and workmanship; (c) the particular purpose for which such goods are ordinarily used will not infringe upon, misappropriate, or otherwise violate the intellectual property rights or other rights of any person or entity; (d) be fit and sufficient for the particular purpose for which such goods are ordinarily used; (e) comply with all applicable Laws; (vi) not be counterfeit, adulterated, misbranded, or falsely labelled or advertised within the meaning of any applicable Law; and (f) be produced, manufactured, assembled, and packaged in compliance with all Laws; and (g) each good will be new and conveyed by Seller to Buyer with good title, free and clear of all encumbrances and liens. The foregoing warranties shall survive any inspection, delivery, acceptance, or payment by Buyer, but shall not apply to consumable items attached to or used in conjunction with goods. Buyer’s approval of any specifications, drawings, samples or other descriptions furnished by Seller shall not relieve Seller of its obligations hereunder. These warranties shall survive any inspection, delivery, acceptance or payment by Buyer, and shall be for the benefit of Buyer, its successors, assigns, customers and users of the goods or services. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the goods with the foregoing warranties. Buyer’s failure to make an inspection or failure to discover any breach of warranty shall not constitute a waiver of any of Buyer’s rights or remedies whatsoever. The warranties contained in these terms and conditions may not be limited.

6. Cancellation. Seller may not cancel this PO once accepted. Buyer may cancel this PO prior to Seller’s delivery of its Acceptance Notice. Buyer may terminate work under this PO in whole or in part at any time upon notice to Seller in writing. Seller will thereupon immediately stop work on this PO or the terminated portion thereof and notify its subcontractors to do likewise. Except where such termination is caused by a default or delay of Seller, Seller shall be entitled to reimbursement for its actual costs incurred up to and including the date of termination.

7. Inspections. Buyer shall have a reasonable period of time following delivery of the goods to the Delivery Location (“Inspection Period”), to inspect all goods and to inform Seller of Buyer’s rejection of any goods that (a) do not conform to the description listed in the Specific Details or Buyer’s specifications or metrics; (b) on visual inspection, Buyer determines are otherwise defective or not in compliance with the Warranty; or (c) exceed the quantity of goods stated in the Specific Details (any such goods, “Nonconforming goods”). If Buyer rejects any Nonconforming goods, Buyer may elect to (i) require Seller, at Seller’s sole cost, to repair or replace the rejected goods, (ii) purchase similar goods from another source and require Seller to (A) remove the Nonconforming goods and (B) reimburse Buyer for the price paid for the replacement goods if the prices of the replacement goods exceed the Price of the Nonconforming goods), (iii) repair the Nonconforming goods itself or have a third party repair the Nonconforming goods (and require Seller to reimburse Buyer’s reasonable and documented costs and expense in connection therewith), or (iv) retain the rejected goods; in each case without limiting the exercise by Buyer of any other rights available to Buyer under the Terms or pursuant to applicable Law. All returns of Nonconforming goods to Seller are at Seller’s sole risk and expense. Buyer’s acceptance of any goods will not be deemed a waiver or limitation of Seller’s obligations pursuant to the Terms (or any breach thereof), including those obligations with respect to Seller’s Warranty and Seller’s duty to indemnify Buyer. Seller agrees that its plant, or such parts thereof as may be engaged in the performance of this PO shall be subject to inspection by Buyer and its authorized representatives during normal business hours.

8. Changes. Buyer reserves the right at any time to make changes in drawings, specifications, designs, packaging, methods of shipment, quantities, place of delivery or delivery schedule as to any goods or services covered hereby. Any difference in price or time for performance resulting from such changes shall be equitably adjusted and confirmed in writing by Buyer. Any claim by Seller for adjustment under this Section shall be deemed waived unless asserted in writing within twenty (20) days from receipt by Seller of such change. Seller will not make any changes in drawings, specifications, materials, descriptions and shipping instructions without Buyer’s prior written consent.

9. Buyer’s Materials. All of Buyer’s tooling, goods and other property in Seller’s possession shall be held by Seller as bailee for hire for use only in filling orders from Buyer, shall be kept separate from other materials, and shall be clearly identified by Seller as Buyer’s property, and shall be fully insured by Seller. All such materials not consumed in the performance of this order shall be held by Seller pursuant hereto until Buyer otherwise directs. Seller waives and releases Buyer from, and Seller shall defend, indemnify and hold harmless Buyer from and against, all claims for damage to property and for injury or damage to Seller, its employees or others, arising out of or in connection with the presence or use of such materials whether such injury or damage is caused by defects in such material, Buyer’s negligence or otherwise.

10. Tooling. Unless otherwise stated on the face hereof, Seller at its own expense shall furnish, keep in good condition, insure and replace when necessary all tooling and other materials necessary for the performance of this order. If Seller uses special tooling or other material relating principally to Buyer’s orders, Buyer at any time may purchase any such tooling or material for the unamortized cost thereof.

11. Buyer’s Proprietary Rights. Seller shall not use or disclose any of Buyer’s trade secrets or confidential information, whether or not designated as such, except as required for the purposes of filling this order. “confidential information” means all knowledge and information disclosed by Buyer to Seller orally or in writing, or acquired by Seller through observation, regarding Buyer’s products, technology, inventions, formulas, recipes, know-how, forecasts, sales methods, customer lists, customer usages and requirements, financial information, business plans, strategies and future business relationships, disclosed with the exception of such information that: (a) was already part of the public domain at the time of the disclosure by Buyer; (b) becomes part of the public domain through no fault of Seller (but only after and only to the extent that it is published or otherwise becomes part of the public domain); (c) was in Seller’s possession prior to the disclosure by Buyer and was not acquired, directly or indirectly, from Buyer or from a third party who was under a continuing obligation of confidence to Buyer; or (d) is received (after the disclosure by Buyer) by Seller from a third party who did not require Seller to hold it in confidence and did not acquire it directly or indirectly from Buyer under a continuing obligation of confidence. All inventions or ideas whether patentable or not made by or for Seller incident to the filling of this order shall vest in and inure to Buyer’s sole benefit. SELLER AGREES THAT ALL INFORMATION CONTAINED IN THE DRAWINGS, BLUEPRINTS, SPECIFICATIONS AND OTHER DOCUMENTS SUBMITTED BY BUYER TO SELLER HEREUNDER IS EXCLUSIVELY PROPRIETARY TO BUYER AND SHALL BE RETURNED TO BUYER UPON COMPLETION, EXPIRATION OR TERMINATION OF THIS PURCHASE ORDER OR IF REQUESTED BY BUYER. SELLER SHALL KEEP ALL SUCH INFORMATION STRICTLY CONFIDENTIAL. SELLER SHALL NOT, WITHOUT BUYER’S PRIOR WRITTEN CONSENT, USE SUCH INFORMATION IN WHOLE OR IN PART FOR ITS OWN BENEFIT OR TO BUYER’S DETRIMENT OR DISCLOSE SUCH INFORMATION IN WHOLE OR IN PART TO ANY OTHER PERSON. Seller agrees that any disclosure or use of Buyer’s confidential information in violation of this Section 11 would cause immediate and irreparable injury or loss that may not be adequately compensated by monetary damages. Therefore in the event of any breach or threatened breach of this Section 11, each party shall be entitled to injunctive relief and specific performance, enjoining or restraining such breach or threatened breach, in addition to all other remedies available at law or in equity.

12. Review of Seller’s Drawings, Data and Work. Review by Buyer of any drawings, data or work provided by Seller shall be only for purposes of ascertaining general conformity with Buyer’s specifications. The review by Buyer of any drawings, data and work does not include review of the efficacy, adequacy or safety of Seller’s methods or the means adopted by Seller to perform its work, nor does it include a review of any detail, design or specification prepared by Seller for use in the fabrication of the goods purchased. Buyer’s review of or comments upon any drawings, data or work of Seller or Buyer providing any drawings, data or work to Seller shall not relieve Seller from the entire responsibility for the correctness and adequacy of the engineering, design, workmanship, material, goods and all other services or for any other obligation of Seller. Any information furnished by Seller to Buyer in connection with the purchase of goods hereunder shall not be deemed to be confidential information and shall be acquired free from any restriction as part of the consideration for this Purchase Order.

13. Intellectual Property. SELLER REPRESENTS AND WARRANTS THAT ALL GOODS FURNISHED HEREUNDER WILL NOT INFRINGE UPON ANY UNITED STATES OR FOREIGN PATENT, TRADEMARK OR COPYRIGHT OR OTHER PROPRIETARY RIGHT. Seller at its expense shall defend (by counsel acceptable to Buyer), indemnify and hold harmless Buyer from any loss, cost, expense or damage incurred by Buyer and from and against all claims asserted against Buyer, its customers and users of the goods for infringement of any patent, trademark or copyright or other proprietary right by reason of the manufacture, use or sale of the goods or any part thereof. If the use or sale of the goods is held to infringe any such rights, Seller shall at its expense either procure for Buyer, its customers and users the right to continue using or selling said goods or replace them with a non-infringing product.

14. Compliance with Laws. In performance of its obligations hereunder, Seller shall comply with all applicable legal requirements; and all goods and services shall comply with and be produced in accordance with applicable law. Seller’s acceptance of this order and furnishing of goods and services hereunder shall constitute certification by Seller of such compliance. Seller shall furnish additional certificates and other evidence of compliance as Buyer shall request.

15. Indemnification and Waiver. Seller shall defend, indemnify and hold harmless Buyer from any loss, damage, cost and expense (including attorney’s fees and other reasonable costs of defending any action) sustained by Buyer and from and against all claims asserted against Buyer arising in whole or in part out of any act or omission of Seller, its agents, employees or subcontractors with respect to the good or services which are the subject of this contract including, without limitation, any breach of this contract and any actions (including under strict liability) arising out of the manufacture, use, storage, maintenance, repair or operation of any of Seller’s goods unless such action directly results from the gross negligence of Buyer. Seller shall defend, indemnify and hold harmless Buyer from and against all claims asserted against Buyer for injuries to employees of Seller, its agents, representatives or subcontractors arising in whole or in part out of Buyer’s negligence. Seller hereby waives and releases Buyer from all rights of contribution or indemnity to which it may otherwise be entitled. As used in this paragraph 15, the term “Buyer” shall mean the Buyer, its officers, directors, agents, employees, subcontractors, parent, subsidiaries, divisions and affiliates.

16. Insurance. Seller shall, at its own expense, maintain with financially sound and reputable insurers Worker’s Compensation, General Liability, Product Liability, Motor Vehicle Liability and Property Damage insurance coverage adequate to cover its obligations hereunder, and Buyer will be named as an additional insured party on such insurance. In the event of cancellation, at least thirty days prior written notice thereof shall be given to Buyer. The purchase of such insurance coverage or the furnishing of such certificates shall not satisfy Seller’s obligations or liability hereunder or in any way modify Seller’s indemnification of Buyer.

17. Remedies. Seller shall be liable for all damages, direct and indirect, resulting from its breach of any of the terms and conditions herein contained. Buyer’s rights and remedies hereunder shall survive delivery, acceptance or payment hereunder and shall be in addition to those provided in law or in equity.

18. Subsequent Sales. Buyer will resell the goods it purchases from Seller and therefore can not control its customer’s use or ordering of the goods. In no event shall Buyer be liable to Seller for anticipated profits or for incidental, special or consequential damages and in no case shall Buyer’s liability exceed payment of the purchase price allocable to the particular good or service or part thereof which directly gives rise to the claim.

19. Miscellaneous. This contract constitutes the entire agreement between the parties relating to the goods or services which are the subject hereof. No modifications shall be binding upon Buyer unless in a writing signed by Buyer’s authorized representative. This order may not be assigned nor any of the obligations thereunder subcontracted by Seller without Buyer’s written consent. The parties are and will remain independent contractors with respect to each other, and nothing contained in this contract shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order. This contract is for the sole benefit of the parties hereto 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. Buyer shall be entitled at all times to set off any amount owing at any time from Seller to Buyer against any amount payable at any time by Buyer. If any term or provision of this contract shall to any extent be invalid or unenforceable, the remainder of the contract shall not be affected thereby, and each term and provision of this contract shall continue to be valid and enforced to the fullest extent permitted by law and the invalid or unenforceable provision will be enforced to the maximum extent permitted under applicable law. No waiver by Buyer or default by Seller shall be deemed a waiver of any subsequent default. The captions used herein shall have no substantive significance.

20. Choice of Law and Jurisdiction. These terms and conditions shall be construed in accordance with the laws of the State of Wisconsin, without regard to principles governing conflicts of laws and without regard to the United Nations Convention on Contracts for the International Sale of goods (“CISG”). The Parties expressly waive the CISG. Buyer and Seller consent to the jurisdiction and venue of the federal and state courts situated in or having their situs over New Berlin, Wisconsin.

21. Attorneys’ Fees. If Buyer pursues any legal action to enforce any of its rights, Buyer shall be entitled to recover from Seller all reasonable attorneys’ fees, any arbitration costs, and all other costs and expenses incurred by Buyer in connection with such action.