1. Acceptance and Governing Provisions. All orders for product(s) (“Products”) and/or services (“Services”) (the “Purchase Order”) by Arch Electric, Inc., a Wisconsin corporation (“ARCH”) are expressly conditioned upon and limited to Seller’s unqualified acceptance of the terms, conditions and instructions of this Purchase Order and any associated Agreement (if any) between ARCH and the Seller (the “Agreement”) (collectively the “Terms”).  The rights of the parties shall be governed exclusively by the Terms.  ARCH’s Purchase Order shall be deemed accepted unless a rejection of this Purchase Order is received by ARCH within two (2) business days of receipt of this Purchase Order.  Any attempt by Seller to vary in any degree the Terms in any acceptance, acknowledgment, confirmation or other communication of any kind containing additional, inconsistent, or different terms and conditions is hereby expressly objected to and rejected.   ARCH’s acceptance of Product(s) and/or Services, or signature acknowledging receipt of Products or Services, shall not be deemed to be an acceptance of any additional, inconsistent, or different terms proposed by Seller.  No prior course of dealing, trade usage, or verbal agreement modifies, adds to, or amends this Purchase Order unless it is in writing and signed by ARCH. ARCH may revoke this Purchase Order upon written notification to Seller any time before acceptance of the Product(s) or Services.  Such revocation shall be effective upon receipt by Seller. Capitalized terms used herein shall have the meaning as set forth herein or in the applicable Agreement. Seller shall furnish all labor, supervision, materials, equipment and other facilities required to perform the Services as further detailed in any Agreement or purchase order entered into between ARCH and Seller.

2. Change Orders. ARCH reserves the right at any time to make changes to the Agreement (a “Change Order”), including without limitation changes to: (i) specifications, drawings, and data incorporated herein or in the Agreement if the items to be furnished are to be specially manufactured for ARCH; (ii) methods of shipment or packing; (iii) place of delivery; (iv) time of delivery; (v) amount of Product to be provided to ARCH by Seller; or (vi) scope of Services to be provided to ARCH by Seller.  All such Change Orders must be in writing and signed by both parties.  If any such Change Order causes an increase or decrease in the cost of or the time required for performance under this Purchase Order, an equitable adjustment shall be made in the price or delivery schedule, or both and reflected on the Change Order.  Seller agrees to accept any Change Orders subject to this paragraph, subject to negotiation of the equitable adjustment.  Seller shall perform under the Purchase Order as changed by the Change Order while negotiation or other determination of the equitable adjustment is taking place. Notwithstanding the foregoing, any claim by Seller for adjustment under this paragraph shall be deemed waived unless provided to ARCH in writing within five (5) business days from delivery of the Change Order to Seller.  Seller shall promptly notify ARCH in writing of any potential deviations from such scope of work, specifications, drawings, or approved samples and of any potential process deviations that may change the performance or appearance of the Product(s), Services to be provided by Seller, or deliverables required of Seller. No such substitution, change, modification or deviation by Seller will be permitted without the prior written consent of ARCH, which may be withheld for any reason.  If Seller proposes any substitution or deviation, Seller guarantees that the substitution is equal in quality, capacity, durability, ease of maintenance, and ease of installation to the Product(s) or Services originally specified.  Failure of Seller to comply with any of the requirements set forth above shall entitle ARCH, in addition to any other rights or remedies, to cancel this Purchase Order and be relieved of any and all liability for losses or damages arising therefrom. 

3. Delivery, Delay, and Anticipation. Time is of the essence under this Purchase Order and any related Agreement.  Seller shall deliver the Product and/or Services: (i) in the quantities and in the manner specified in this Purchase Order or in the applicable Agreement, (ii) within the time specified in this Purchase Order or the applicable Agreement, (iii) in accordance with the specifications, drawings, scope of work, or approved samples, and (iv) at the prices specified on the face of this Purchase Order or in the applicable Agreement.

A. For the provision of Products, if shipment is delayed beyond the last date on which shipment by the method contemplated in the Purchase Order would result in delivery guaranteed on or before the required delivery date herein, Seller shall make shipment by the most expeditious method of transportation available. Any additional cost of such method of shipment shall be borne by Seller. Seller understands that any delivery delay will cause ARCH’s work to be disrupted and delayed, and Seller shall be responsible and liable to ARCH for any losses, damages, or expenses sustained as a result of such failure to deliver including without limitation any delay liquidated damages incurred by ARCH unless such delay is caused by ARCH. 

B. In the event of Seller’s inability to timely deliver Product(s) or Services, ARCH may, at its option, obtain the Product(s) or Services from an alternative source and Seller shall be liable for any increased costs unless such delay is caused by ARCH.

4. Shipping, Packaging, and Risk of Loss. Unless otherwise stated on the Purchase Order or in the Agreement, the shipping terms for all Product(s) purchased hereunder are FOB Destination Freight Prepaid to ARCH’s address.  All Product(s) shall be suitably packed, marked with ARCH’s order number, and shipped in accordance with shipping instructions specified and otherwise in accordance with the requirements of common carriers.  Packing slips must be included with all shipments showing order number, type of Product, quantity, and whether the order has been shipped partial or complete.  The order number must be shown on each item, packing slip, and invoice.  No charge shall be made to ARCH for boxing, packing, crating, carting, drayage, or storage unless separately itemized on the face hereof.  Regardless of shipping terms, all risk that the ordered Product(s) may be lost, damaged, destroyed or delayed in transit shall be upon Seller until conforming Product(s) have been actually received, inspected, and formally accepted by ARCH.  Seller shall be liable to ARCH for any loss or damage resulting from Seller’s failure to act so as to provide adequate protection during shipment. 

5. Inspection, Acceptance, Rejection. All Product(s) and Services purchased hereunder (and work-in-process relating thereto) shall be subject to inspection and testing by ARCH at its sole discretion, at any reasonable time and from time to time before, during, or after manufacture and delivery.  If any inspection or test is to be made on the premises of Seller, Seller shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties without any additional charge.  Notwithstanding prior inspections, all Product(s) and Services are subject to final inspection and approval at ARCH’s plant or other place designated by ARCH, and notwithstanding any payment that may be made, no Product(s) or Services are deemed accepted until such final inspection and approval.  ARCH’s inspection before, during, or after manufacture and delivery of Product(s) and/or completion of Services shall not constitute a waiver of the right of subsequent rejection by reason of any undiscovered or latent defect.  If any Product(s) or Services are rejected, ARCH shall have the right, at its sole option, to (i) obtain substitute Product(s) or Services and charge the Seller any difference in cost in obtaining them; (ii) request Seller correct the defect or nonconformity at no additional cost; (iii) correct the defect or nonconformity itself and charge Seller for the cost incurred in doing so; (iv) return the Product(s) to Seller at Seller’s risk and expense at the full invoice price plus transportation charges and expenses for unpacking, examining, repacking and reshipping; or (v) request that Seller remove at its expense any Product(s) that ARCH designates as non-conforming within thirty (30) days from receipt of notice and credit ARCH for full invoice price.  If Seller does not remove such non-conforming Products within thirty (30) days, ARCH may dispose of such non-conforming Products at Seller’s expense and debit any outstanding obligation of ARCH to Seller accordingly. Product(s) supplied in excess of the exact quantity in the Purchase Order may be returned to Seller at Seller’s expense in addition to ARCH’s other rights.  In the event ARCH receives Product(s) or Services containing defect(s) or nonconformity(ies) that are not apparent on examination, ARCH reserves the right to require replacement, payment of damages, and any other remedy available in these Terms or in the applicable Agreement.  Nothing contained in this Purchase Order or Agreement shall relieve in any way Seller from the obligation of testing/inspection and quality control.  Seller shall not replace Product(s) returned as defective unless so directed by ARCH in writing. Notwithstanding the expiration or termination of these terms or any Agreement, Seller shall guaranty the availability of spare parts utilized in any Product(s) purchased by ARCH for a period commencing on the effective date of termination or expiration of this Agreement and continuing for a period ending on the earlier of (i) the estimated useful life or any Product(s) purchased by ARCH hereunder (as it relates to such Product(s); or (ii) ten (10) years after the date of purchase by ARCH.

6. Warranties.

A. Seller warrants that the Product(s) to be furnished hereunder shall (i) be free and clear of all liens and encumbrances, good and merchantable title thereto being in Seller; (ii) be free from any defects in design, material, or workmanship (latent or otherwise) and of good and merchantable quality; (iii) conform to specifications, drawings, data, and samples, (whether furnished by ARCH or Seller) and any other representations made by Seller; (iv) be fit for their intended use; and (v) comply and have been produced, processed, packaged, labeled, delivered, and sold in conformity with all applicable federal, state, and local laws, codes, rules, regulations, orders, and ordinances, including, without limitation, environmental protection, energy and labor laws and regulations, and applicable industry codes and standards, including the Occupational Safety and Health Act of 1970 and the Construction Safety Act of 1969, as amended from time to time.

B. Seller also warrants that all Services will be performed in a professional and workmanlike manner, using the highest of current industry standards. Seller shall furnish all necessary equipment, labor, materials, mechanical and technical capability, tools and other facilities, items, and Services necessary to complete the Services required under this Purchase Order or the Agreement.

C. Unless there is a more stringent requirement contained in any Agreement or Purchase Order between ARCH and Seller, Seller warrants to owner of any premises for which Seller is providing Product(s) or Services hereunder (“Owner”) and ARCH that all materials and equipment furnished shall be new unless otherwise specified and that all Services provided by Seller shall be performed in a good and workmanlike manner, shall be of good quality, free from faults and defects at a minimum period of one (1) year from the completion of the applicable project and/or in conformance with the Purchase Order. All Services not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective in Arch’s sole discretion. The warranty provided herein shall be in addition to and not in limitation of any other warranty or remedy required by law or by the Purchase Order or any other Agreement between Arch and Seller.

D. These representations and warranties shall survive inspection, acceptance and subsequent use of the Product(s) or Services, as well as payment therefore by ARCH, and shall also run to ARCH’s successors, assigns, customers and users of ARCH’s products that contain, incorporate or embody Product(s) or Services purchased under this Purchase Order or the Agreement. ARCH objects to any provision limiting its rights or remedies under applicable law.  SELLER AGREES TO INDEMNIFY ARCH AGAINST ANY AND ALL LIABILITY, LOSS, DAMAGE, EXPENSE, INCLUDING REASONABLE ATTORNEYS’ FEES, SUSTAINED BY ARCH FOR FAILURE OF THE PRODUCT(S) AND/OR SERVICES TO REASONABLY CONFORM TO THE ABOVE WARRANTIES.  THIS INDEMNITY IS IN ADDITION TO ANY OTHER REMEDIES AVAILABLE TO ARCH AT LAW OR IN EQUITY.

7. Indemnification. Seller shall defend, indemnify and hold harmless ARCH, its subsidiaries and affiliates, and the respective directors, officers, employees, and agents, and their successors, assigns, and customers (whether direct or indirect) of any of the foregoing, (collectively the “Indemnified Parties”) against any and all liabilities, losses, damages, and expenses (including reasonable attorneys’ fees and other costs of defending any action) that any of the Indemnified Parties may sustain or incur as a result of any and all claims, demands, suits, actions, fines, penalties, or charges of any nature whatsoever, including but not limited to, claims based on negligence, breach of warranty, personal injury or death, strict liability in tort, or under any other theory of law, as a result of (i) violation of any law, ordinance, rule, or regulation by Seller or its officers, directors, shareholders, employees, agents, customers, representatives, successors, assigns, or invitees; (ii) death, personal injury, property damage, or any other injury, damage or claim arising out of the actions of Seller or its employees, agents, representatives, customers, successors, assigns, or invitees in satisfying the Agreement; (iii) Seller’s breach or nonperformance of this Purchase Order or the Agreement; or (iv) any actions arising out of or resulting in any way from any delay in delivery, defect or deficiency in the Product(s) or by the negligence or fault of Seller in performing its duties under this Purchase Order or the Agreement.    Seller’s obligation to indemnify ARCH shall survive the termination, cancellation, expiration, or completion of this Purchase Order and the Agreement.

8. Intellectual Property Infringement Indemnity. Except as provided in subsection (b) below, Seller warrants that the sale or use of Product(s) or Services furnished hereunder will not infringe or contribute to infringement of any patent, copyright, trademark, trade secret, or other proprietary right, or subject the Indemnified Parties to royalties in the United States or elsewhere.  In addition:

A. Seller hereby agrees to defend, indemnify and hold harmless the Indemnified Parties against any and all claims, demands, losses, suits, causes of action, damages, injuries, costs, expenses and liabilities whatsoever, including reasonable attorney’s fees, arising out of any actual or alleged direct or contributory infringement of or inducement to infringe, any United States or foreign patent, trademark, copyright or other intellectual or industrial property right or for the actual or alleged misuse or misappropriation of a trade secret by reason of the manufacture, use, sale, license, or import of the Product(s) or Services supplied by Seller under this Purchase Order or the Agreement.

B. The preceding subsection shall not apply if the infringement directly and solely results from a detailed design or specification supplied by ARCH to Seller, if Seller has not participated in or contributed to the development of such design or specification in any way.

C. Seller waives any claim against the Indemnified Parties, under the Uniform Commercial Code or otherwise, including any hold harmless or similar claim, in any way related to a claim asserted against Seller or ARCH for infringement or the like.

9. Work on ARCH and Other Premises:

A. If Seller’s performance of this Purchase Order and the Agreement involves or results in the presence of Seller or its agents on ARCH’s premises or on the premises of ARCH’s customer(s), Seller shall take all necessary precautions to assure that its Services and other activities are carried out in a safe and proper manner and Seller shall defend, hold harmless and indemnify ARCH against any and all liability arising out of such Work and Seller’s presence on the premises. Seller shall also maintain such public liability, property damage, and employer’s liability and workers’ compensation insurance as will protect ARCH from risk and from any claims under any applicable workers’ compensation acts.  Seller shall sign ARCH’s standard independent contractor agreement if requested by ARCH, before performing any Services on ARCH’s premises.  Any and all information or materials (whether they relate to manufacturing, marketing, products, or anything else) to which Seller or its agents are exposed while on ARCH’s premises shall be considered Confidential Information.

B. At all times during the course of Services being performed by Seller, if applicable, Seller shall perform its Services so as to maintain its work site in a clean, safe and orderly condition. Should the Seller fail to maintain a clean site, ARCH, at its sole discretion with written notice, may deduct from the subcontract price an amount of up to $1,000.00 per notice. Upon completion of the applicable Services to be performed by Seller, Seller shall remove from the site all hazardous materials, temporary structures, debris and waste incident to its operation and clean all surfaces, fixtures, equipment, etc., relative to the performance of the Services to be performed by Seller.

10. Liens. In case suit is brought on any claim, lien or stop notice for labor performed or materials used on or furnished to the project by Seller, Seller shall pay and satisfy any such lien or judgment as may be established by the decision of the court in said suit. Seller agrees within five (5) days after written demand to cause the effect of any such suit, lien or stop notice to be removed from the premises for which materials or services are performed, and if Subcontractor shall fail to do so, ARCH is authorized to use whatever means in its discretion including but not limited to satisfying by direct payment any lien, claim or stop notice and deducting amount(s) from the Seller to cause said lien, stop notice or suit to be removed or dismissed and the cost thereof, together with actual attorneys’ fees, shall be immediately due and payable to ARCH by Seller. Seller shall at all times indemnify and save Arch and Owner harmless against all liability for claims and liens for labor performed or material and equipment used or furnished to be used on the job including all incidental and consequential damages resulting to ARCH or Owner from such claims or liens. It is understood and agreed that the full and faithful performance of this Agreement on the part of Seller (including the payment of any obligations due from the Seller to Arch, and any amounts due to labor or materialmen furnishing labor or material for said Services) is a condition precedent to Seller’s right to receive payment for the Work performed, and any monies paid by Arch to Seller under the terms of this Agreement shall be impressed with a trust in favor of labor and materialmen furnishing labor and material to Seller on the Services herein subcontracted.

11. Bonding. If required by the ARCH with the execution of this Agreement, Seller shall execute a labor and material bond and a performance bond, each in an amount equal to one hundred percent (100%) of the applicable Purchase Order or subcontract price. Said bonds shall be executed by a corporate surety admitted in Wisconsin, acceptable to ARCH and shall be in a form satisfactory to ARCH. If Seller’s bond becomes invalid, Seller shall provide a viable bond to replace the original bond at Seller’s expense.

12. Insurance. Seller shall maintain insurance coverage in amounts not less than the following:  (i) Workers’ Compensation – statutory limits for the state or states in which this order is to be performed or evidence of authority to self-insure; (ii) Employer’s Liability – $2,000,000; (iii) Commercial General Liability (including Products, Completed Operations, and Blanket Contractual Liability) – $1,000,000 per person, $1,000,000 per occurrence Personal Injury, and $1,000,000 per occurrence Property Damage or $1,000,000 per occurrence Personal Injury and Property Damage combined single limit, and (iv) Automobile Liability including owned, non-owned, and hired vehicles – $1,000,000 per person, $1,000,000 per occurrence Personal Injury and $1,000,000 per occurrence Property Damage or $1,000,000 per occurrence Personal Injury and Property Damage combined single limit.  At ARCH’s request, Seller shall furnish to ARCH certificates of insurance setting forth the amounts of coverage, policy number(s), and date(s) of expiration for insurance maintained by Seller.  Such certificates will provide that ARCH shall receive thirty (30) days’ prior written notification from the insurer of any termination or reduction in the amount or scope of coverage.  Seller’s purchase of appropriate insurance coverage or the furnishing of certificates of insurance shall not release Seller of its obligations or liabilities under this order.

13. Recalls. Seller shall bear the entire cost and expense resulting from the sale, shipment or transport of any Product(s) which are not in accordance with ARCH specifications or which do not conform with applicable law, including without limitation all costs and expenses incurred in recalling such Product(s) and in furnishing an adequate amount of substitute Product(s) on a timely basis, by air shipment if necessary. Within ten (10) days after the execution and delivery of these Terms, Seller shall furnish to ARCH in writing a copy of its recall procedures with respect to Product(s), and thereafter shall provide updates to such procedures not less frequently than annually.

14. Payments, Terms, Prices, Security Interest. Unless otherwise specified on the face of the Purchase Order or in the Agreement, payments shall be due net sixty (60) days from the date all Product(s) and/or Services are received and accepted by ARCH.  Seller agrees that ARCH may, at any time, without prior notice to Seller, set off the amount of any liability due to Seller in connection with this Purchase Order and the Agreement against any liability of Seller due to ARCH or any subsidiary of ARCH.  ARCH shall not be billed at prices higher than those stated in the Agreement or this Purchase Order, and no additional charges of any kind shall be imposed, unless authorized by a Change Order.  Seller represents that the prices charged for the Product(s) and Services under this Purchase Order are the lowest prices charged by Seller to all purchasers and that these prices comply with applicable governmental regulations in effect at time of quotation, sale, or delivery.  If ARCH makes any payment before ARCH’s receipt of the Product(s) or Services ordered hereunder, Seller hereby grants ARCH a security interest in such Product(s) (including raw materials and work-in-process to become part of such Product(s)), and all proceeds of any of them to secure performance of Seller’s obligations hereunder.  Seller agrees to execute and deliver such financing statements as ARCH may reasonably consider necessary or appropriate to perfect its security interest.  If Seller fails to execute and deliver such financing statements to ARCH within five (5) days of ARCH’s request, Seller hereby irrevocably grants to ARCH a power of attorney appointing any employee of ARCH designated by ARCH as Seller’s attorney, with full power to sign Seller’s name to such financing statement.  All acts of such attorney are ratified and approved by Seller.  A photographic or other reproduction of this document may be filed as a financing statement in all states where permitted.

15. Taxes. ARCH shall not be liable for any federal, state, or local taxes, duties, customs, or assessments in connection with the sale, purchase, transportation, use, or possession of the Product(s) ordered hereunder, except those expressly set forth in the Agreement, if any.  All such taxes, if any, shall be stated separately on invoices. 

16. Non-Assignability. Seller shall not assign or sublet the Services to be performed hereunder without the prior written consent of ARCH, which may be withheld by ARCH for any reason, but this provision shall not restrict Seller in the procurement of component parts or materials.  ARCH reserves the right to assign or transfer this Purchase Order.

17. Termination.

A. ARCH reserves the right to terminate this Purchase Order, or any part hereof, without cause and for its sole convenience. In the event of such termination, Seller shall immediately stop all Services hereunder, and shall immediately cause any of its suppliers or subcontractors to cease such Services.  Seller shall not be paid for any Services done by Seller or its suppliers or subcontractors after Seller’s receipt of the notice of termination, nor for any costs incurred by Seller’s suppliers or subcontractors after this point.  ARCH’s liability for cancellation of any Purchase Order under this paragraph shall be limited to Seller’s out-of-pocket cost for Services and materials applicable solely to this Purchase Order that have already been expended when notice of cancellation is received by Seller, reduced by the fair market resale value of such work-in-process.

B. If Seller is in violation of any of the terms of this Purchase Order or the Agreement, Seller shall be considered to be in default. Acts constituting Seller default shall include (without limitation) late deliveries, deliveries of Product which are defective or which do not conform to this Purchase Order and the Agreement, and failure to provide ARCH, upon request, of reasonable assurances of future performance.  If Seller is in default, ARCH may, at its sole option and upon notice to Seller, (i) immediately terminate this Purchase Order or (ii) suspend acceptance of deliveries during the period of time Seller remains in default.  If ARCH terminates this Purchase Order for Seller default, ARCH shall have no liability of any kind to Seller except for payment for conforming shipments previously accepted by ARCH.  In the event of termination for Seller default, Seller shall be liable to ARCH for any and all damages sustained by reason of the default giving rise to the termination. 

C. In the event Seller shall cease to exist, become insolvent, execute an assignment for the benefit of its creditors, or become the subject of bankruptcy, receivership, or insolvency proceedings, ARCH may, at its option, cancel this order without any liability to Seller except payment for conforming shipments previously accepted by ARCH. If ARCH terminates this Purchase Order under this paragraph, ARCH shall have no liability of any kind to Seller except for payment for conforming shipments previously accepted by ARCH. 

D. Any termination for any reason by ARCH shall be without prejudice to ARCH’s rights hereunder. The exercise of ARCH’s right to terminate this Purchase Order shall not be deemed an election of remedies and shall be in addition to all other rights and remedies available to ARCH under this Purchase Order or by law or equity.

18. Disclosures; Special Warnings and Instructions. If requested by ARCH, Seller shall promptly furnish to ARCH in such form and detail as ARCH may direct: (i) a list of all materials and compounds in the Product(s) purchased hereunder and their sources; (ii) the amount of one or more materials/compounds; and (iii) information concerning any changes in or additions to such materials/compounds.  Prior to and with the shipment of Product(s) purchased hereunder, Seller agrees to furnish to ARCH sufficient warning and notice in writing, including appropriate labels on Product(s), containers, and packaging, of any hazardous material that is a material, compound, or a part of any of the Product(s), together with such special handling instructions as may be necessary to advise carriers, ARCH, and their respective employees of how to exercise that measure of care and precaution that will best prevent bodily injury or property damage in the handling, transportation, processing, use, or disposal of the Product(s), containers, and packaging shipped to ARCH.

19. ARCH’s Property, Tools, Design Work, Drawings, Specifications and Technical Information. Unless otherwise stated on the face hereof or in the Agreement, ARCH shall have no obligation to furnish or pay for any design work, drawings, tools, or other equipment required for the performance of this Purchase Order; provided, however, that ARCH may, at its option, purchase any such items especially required by Seller for this Purchase Order at the current value thereof on Seller’s books for income tax purposes, and any item so purchased shall be deemed to be furnished to ARCH hereunder.  Any design, drawing, specification, photograph, tool, or other equipment, material, part, or any engineering and manufacturing information heretofore or hereafter furnished to Seller by ARCH under this Section, whether or not separately itemized hereon, shall (i) be and remain ARCH’s property, (ii) be conspicuously identified as such in Seller’s records and by physical marking thereon, (iii) be promptly delivered to ARCH upon request, (iv) be treated as Confidential Information, (v) not be used in processing or manufacturing Product(s) for anyone other than ARCH, and (vi) while in the possession of Seller shall be adequately insured at Seller’s expense for the benefit of ARCH against loss or damage by fire or other hazard.  No change shall be made in any design, drawing, specification, tool, or other equipment furnished by ARCH under this Section without ARCH’s express written consent.  Any information that Seller may disclose to ARCH with respect to the design, manufacturing, sale, or use of the items covered by this Purchase Order shall be deemed to have been disclosed as part of the consideration for this Purchase Order, and Seller shall not assert any claim (other than a claim for patent infringement) against ARCH by reason of ARCH’s use thereof.

20. Force Majeure. Neither party shall be liable to the other party for any damage as a result of any delay in delivery or failure to accept delivery due to any reasonably unforeseeable act of God, embargo or other governmental act, regulation or request, fire, accident, war, riot, any other delays beyond the other party’s control that shall affect the other party’s ability to receive or use the Product(s) or Services.  In the event Seller fails to deliver Product(s) or Services due to such causes, ARCH may either:

(a)  Terminate any Agreement between the parties or any part hereof as to Product(s) not shipped; or

(b)  Suspend any Agreement in whole or in part for the duration of the delaying cause, and at ARCH’s option, purchase the Product(s) from any third party during such suspension. Seller shall resume performance under this Agreement immediately after the delaying cause ceases, and at ARCH’s option, ARCH may extend the then current term period for a period equivalent to the length of time the excused delay endured.

21. Remedies Cumulative, Waiver. The rights and remedies of ARCH set forth herein shall be in addition to any rights or remedies that ARCH may otherwise have.  No waiver of a breach of any provision of this contract shall constitute a waiver of any other breach, or of such provisions.

22. Compliance with Certain Laws. Seller shall comply with, and shall ensure that all of its sub-suppliers shall comply with, all applicable laws and ordinances and all orders, rules, and regulations issued thereunder (including anything required thereby to be included or incorporated by reference or operation of law in this Purchase Order. From time to time, at ARCH’s request, Seller shall provide certificates to ARCH relating to Seller’s compliance with any applicable legal requirements or to update the representations, warranties, certifications or covenants contained in this Purchase Order, in each case in form and substance satisfactory to ARCH.

A. Seller certifies to ARCH that the Products and/or Services purchased hereunder were produced or performed in compliance with all applicable requirements of the Fair Labor Standards Act of 1938, as amended and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof, and in accordance with all applicable state and federal laws and regulations governing general conditions for labor employed in the production of such Product(s). With respect to any order pertaining to a government contract or subcontract, unless otherwise exempt, the following clauses are incorporated by reference: Equal Opportunity Clause, 41 CFR § 60 1.4; Disabled Veterans and Veterans of the Vietnam Era, 41 CFR § 60 250.5; Individuals with Disabilities, 41 CFR § 60 741.5. In addition, unless exempt, Seller shall comply with all affirmative action requirements and any other requirements set forth in 41 CFR Chapter 60 and all applicable Executive Orders pertaining to equal opportunity. If this Purchase Order is subject to government contracting mandates, we will so state on the face hereof, and if so stated, as a condition to the effectiveness of this Purchase Order, Seller agrees to certify to ARCH, by separate writing, that it complies with all government contracting requirements applicable to ARCH, Seller and the Product(s) or Services. Acceptance of this contract by Seller shall be deemed a certification that Seller is in compliance with any and all requirements imposed by law, regulation or Executive Order upon prime contractors or subcontractors under contract with any governmental agency, including the Equal Opportunity Clause set forth in 41 CFR Chapter 60-1.4, the Affirmative Action Clause regarding Special Disabled Veterans and Veterans of the Vietnam Era set forth in 41 CFR Chapter 60-250.5(a), the Affirmative Action Clause regarding Workers with Disabilities set forth in 41 CFR Chapter 60-741,5(a) and any other provisions of contractual clauses required by the OFCCP as set forth in 41 CFR Chapter 60, as well as any Executive Orders as now or hereafter issued, amended or codified which requirements are incorporated herein by reference. By accepting or performing this Purchase Order, Seller certifies in accordance with 41 CFR part 60 – 1.8 with respect to orders exceeding $10,000 and not otherwise exempt from the Equal Opportunity Clause (E.O. 11246 as amended by E.O. 11375) that it does not and will not maintain segregated facilities or permit its employees to perform Services at any location under its contract where segregated facilities are maintained, and that it will obtain similar certification before the award of any non-exempt contract. Executive Order 13201 Compliance: Seller agrees to comply with the provisions of 29 CFR 470. Seller further agrees to provide Disadvantaged Business Enterprises (including but not limited to minority and women-owned businesses) utilization and demographic data upon request. Where Products or Services being procured from Seller are in support of a United States Government end-user, Seller agrees to comply with the terms and conditions of the most current version of FAR 52.212-5(e) or 52.244-6 to the extent those terms are applicable to “commercial off-the shelf” or “commercial Item” and as appropriate for the dollar value of this Purchase Order.

B. Seller represents, warrants, certifies and covenants that it has established an effective program to ensure that the activities of its sub-tier suppliers in regard to the Products sold or otherwise transferred to ARCH hereunder will be in compliance with this Section.

C. If ARCH determines that any of Seller’s representations, warranties, certifications or covenants contained in this Purchase Order is incomplete or untrue, ARCH shall have the right to immediately require Seller to bring the Products or Services into conformity with its representations, warranties, certifications and covenants or, at ARCH’s sole option, to terminate this Purchase Order without further compensation to Seller. In addition, Seller shall compensate ARCH for any damages suffered by ARCH as a result of any untrue or incomplete representation, warranty, certification or covenant of Seller, or breach thereof hereunder by Seller, and Seller shall defend, indemnify, release and hold harmless ARCH, its directors, officers, employees, agents, representatives, successors and assigns, whether acting in the course of their employment or otherwise, against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, damages, costs, expenses, or liabilities resulting from or in any way connected with Seller’s breach of any of the representations, warranties, certifications or covenants contained in this Purchase Order. Seller agrees to include this clause in any subcontracts issued hereunder. The provisions of this Section shall survive any termination or expiration of this Purchase Order.

23. Governing Law and Dispute Resolution.

A. This Purchase Order shall be governed by and construed in accordance with the laws of the State of Wisconsin, U.S.A. without giving effect to any choice of law rules that would cause the application of laws of any other jurisdiction (the “Governing Law”). If the Purchase Order includes the sale of Products and the Seller’s pertinent place of business is determined to be located outside of the United States of America, the United Nations Convention on Contracts for the International Sale of Goods shall not apply, and the laws of the State of Wisconsin, U.S.A. shall apply.

B. All disputes arising in connection with this Purchase Order, including any question regarding its existence or validity, shall be resolved in accordance with this Section. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management, to be held within twenty (20) business days after the giving of notice. If the dispute is not resolved within thirty (30) business days after the giving of notice, or such later date as may be mutually agreed, either party may commence court proceedings, and such legal action shall be commenced in federal court with jurisdiction applicable to, or state court located in Sheboygan County, Wisconsin, U.S.A.

C. Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Purchase Order, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth herein, or to seek interim or conservatory measures.

24. Environmental, Health, Safety Requirements.

A. Seller represents, warrants, certifies and covenants that it shall perform all activities required under this Purchase Order in compliance with all applicable United States, EU, state/provincial, and local labor, environmental, health and safety laws and regulations.

B. For all Products and other materials sold or otherwise transferred to ARCH under this Purchase Order, Seller shall provide all relevant information including without limitation, safety data sheets in the language and the legally required format of the location to which the Products will be shipped and mandated labeling information, required pursuant to applicable requirements such as: (i) Occupational Safety and Health Act (OSHA) regulations codified at 29 CFR 1910.1200, or (ii) Regulation (EC) No 1907/2006 (“REACH”) or EU Directive 67/548/EC, as amended, if applicable, and (iii) any other applicable law, rule or regulation, or any similar requirements in any other jurisdictions to which ARCH informs Seller the Products are likely to be shipped, whether or not the standard applies to the activities of Seller.

C. Seller represents, warrants, certifies and covenants that each chemical substance constituting or contained in the Products sold or otherwise transferred to ARCH (including packing) hereunder is on the list of chemical substances compiled and published by (i) the Administrator of the Environmental Protection Agency pursuant to the Toxic Substances Control Act (15 USC Section 2601 et seq.) as amended; (ii) the European Inventory of Existing Commercial Chemical Substances (EINECS) or the European List of Notified Chemical Substances (ELINCS); or (iii) any equivalent lists in any other jurisdictions to which ARCH informs Seller or Seller knows the Products will likely be shipped to or through; or that Seller is exempt from the foregoing lists, in which case Seller shall provide adequate documentation of the validity of the claimed exemption. Seller further represents, warrants, certifies and covenants that each chemical substance constituting or contained in Products sold or otherwise transferred to ARCH hereunder is manufactured, imported, used and supplied in full compliance with the provisions of Regulation (EC) No. 1970/2006 (“REACH”), and is preregistered or registered, if required, under REACH, is not restricted under Annex XVII of REACH and if subject to Authorization under REACH Annex XIV, is authorized for ARCH’s use. In each case, Seller will timely provide ARCH with supporting documentation, including without limitation, (iv) pre-registration numbers for each such substance, (v) the exact weight by weight percentage of any REACH candidate list substance constituting or contained in the Products, (vi) all relevant information that ARCH needs to meet its obligations under REACH to communicate site use to its customers and (vii) the documentation of the authorization for ARCH’s use of an Annex XIV substance.

D. Seller shall disclose to ARCH the existence of any and all hazardous materials contained in Products and other materials sold or otherwise transferred to ARCH hereunder. Seller represents, warrants, certifies and covenants that none of the Products supplied under this Purchase Order contains any: (i) lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls (PBBs), polybrominated diphenyl ethers (PBDEs) (flame retardants), or any other hazardous substances the use of which is restricted under EU Directive 2002/95/EC (27 January 2003) (RoHS Directive), as amended; (ii) arsenic, asbestos, benzene, polychlorinated biphenyls (PCBs), or carbon tetrachloride; (iii) any chemical restricted under the Montreal Protocol on ozone-depleting substances; (iv) any substance listed on the REACH candidate list, subject to authorization and listed on Annex XIV of REACH, or restricted under Directive 76/769/EEC and when it shall be repealed, Annex XVII of REACH; or (v) any other chemical or hazardous material the use of which is restricted in any other jurisdictions to which ARCH informs Seller or the Seller knows the Products are likely to be shipped to or through; unless ARCH expressly agrees otherwise in writing as an addendum to this Purchase Order and Seller identifies an applicable exemption from any relevant legal restriction on the inclusion of such chemicals or hazardous materials in the Products sold or transferred to ARCH. Upon request from ARCH and subject to reasonable confidentiality provisions which enable ARCH to meet its compliance obligations, Seller will provide ARCH with the chemical composition, including proportions, of any substance, preparation, mixture, alloy contained in or incorporated into the Products supplied under this Purchase Order and any other relevant information or data regarding the properties including without limitation test data and hazard information. Seller also represents, warrants, certifies and covenants that any substance contained in Products which is a “hazardous substance” as defined under CERCLA, is produced in compliance with applicable state and federal requirements and Occupational Safety and Health Act (OSHA) regulations.

E. An appropriate safety data sheet and labeling, as and if required by law, will precede or accompany each shipment by Supplier. Further, Supplier shall send to Buyer updated safety data sheets and labeling information as required by law.

25. Limitation of Liability. EXCEPT AS OTHERWISE REQUIRED FOR FULL INDEMNITY BY SELLER, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LABOR COSTS OR LOST PROFITS) OR FOR ANY GENERAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES OF ANY KIND OR NATURE WHATSOEVER ARISING HEREUNDER OR UNDER ANY OTHER PURCHASE ORDER OR AGREEMENT BETWEEN SELLER AND ARCH.  THE PROVISIONS OF THIS SECTION SHALL SURVIVE ANY TERMINATION, EXPIRATION, CANCELLATION, OR COMPLETION OF THIS PURCHASE ORDER OR THE SUPPLY AGREEMENT, HOWEVER ARISING.  ARCH SHALL NOT SUFFER ANY LIABILITY WHATSOEVER TO SELLER FOR ARCH’S FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER WHERE SUCH FAILURE IS DIRECTLY OR INDIRECTLY CAUSED BY OR CONTRIBUTED TO ANY EVENTS OR OCCURRENCES CONSTITUTING FORCE MAJEURE, AS SET FORTH HEREIN. SELLER SHALL BE RESPONSIBLE FOR, DEFEND, INDEMNIFY, RELEASE, AND HOLD ARCH HARMLESS FROM ANY AND ALL CLAMS AND DAMAGES ALLEGED AGAINST ARCH BY ANY THIRD PARTY ARISING OUT OF ANY OF SELLER’S OBLIGATIONS CONTAINED HEREIN.

26. Interpretation. This Purchase Order shall not be construed against one party or the other based on which party drafted any portion or thereof.

27. Electronic Transactions. The parties intend that this Purchase Order can be electronically submitted and accepted, that the email addresses provided on the first page of this Purchase Order can be used to provide any required notice or communications under this Purchase Order, and that the electronic transactions provisions in Wis. Stat. Chapter 137 apply to this Purchase Order.

28. Complete Agreement:  Except for any Agreement between ARCH and Seller, this Purchase Order is the full and final agreement of the parties and no written or oral communication between the parties before the execution of this Purchase Order will modify or amend the agreement.  This Purchase Order may be modified only by a written document signed by both parties.  In the event of a conflict between the Agreement and this Purchase Order, the Agreement shall control.

29. Export Rules.  Seller shall comply with all U.S. laws and regulations governing imports and exports, including but not limited to, the United States-Mexico-Canada Agreement, the Export Administration Act and regulations thereunder, the Foreign Corrupt Practices Act, and the rules and regulations enforced by the Office of Foreign Asset Control.

30. Trademarks.  Seller will not use any ARCH trademark or tradename for any reason without first receiving the written consent and terms of use from ARCH, which may be withheld for any reason.

31. Independent Contractor.  Each of the parties to this Purchase Order is an independent contractor.  Each party to this Agreement assumes full responsibility for the payment of all compensation, taxes, and charges for all persons engaged by it in the performance of Services hereunder.   The parties do not intend to create any agency, partnership, joint venture, or like relationship through this Purchase Order.

32. No Minimum Purchase Requirements. Except as otherwise expressly set forth in any applicable Purchase Order or in any Agreement between ARCH and Seller, there shall be no minimum purchase requirements associated with this Purchase Order.