Definitions:
“SMITH” means SMITH Surface-Prep Solutions, a Graco company. “Purchaser” means the Buyer, End-user Consumers, Resellers, Dealers, Distributors, or Licensees: identified in the applicable document to which these Terms and Conditions of Sale are referred to therein, irrespective of whether the document is an invoice, order confirmation, quotation, statement, or other document (hereinafter, all references to such documents and to the Terms and Conditions of Sale, collectively, shall be made by reference to the “Agreement”). “Products” mean the products, goods, equipment, supplies and services supplied by SMITH to Purchaser as described in this Agreement.

Terms are Exclusive:
THIS AGREEMENT CONSTITUTES THE COMPLETE AND FINAL AGREEMENT OF PURCHASER AND SMITH RELATED TO THE PRODUCTS. THIS AGREEMENT MAY NOT BE ADDED TO, MODIFIED OR SUPERSEDED EXCEPT IN A WRITING SIGNED BY AN EXECUTIVE OFFICER OF SMITH, EVEN THOUGH OTHER TERMS MAY APPEAR ON PURCHASER’S DOCUMENTS (ALL OF WHICH ARE HEREBY OBJECTED TO BY SMITH WITHOUT FURTHER NOTICE). THIS AGREEMENT IS EXPRESSLY CONDITIONAL UPON PURCHASER’S CONSENT TO ANY TERMS CONTAINED HEREIN THAT ARE ADDITIONAL TO OR DIFFERENT FROM THOSE CONTAINED IN PURCHASER’S DOCUMENTS. IF PURCHASER ACCEPTS ANY PERFORMANCE BY SMITH, PURCHASER WILL BE DEEMED TO HAVE ACCEPTED THE TERMS AND CONDITIONS OF THIS AGREEMENT.

Price:
Unless otherwise agreed, prices will be those set forth in SMITH’s pricing policies in effect at the time of tender of delivery. In the event Purchaser changes its order (if and when permitted by SMITH), SMITH may adjust prices accordingly. Unless otherwise stated, prices do not include applicable quotation fees, taxes, excises, duties or other governmental impositions which SMITH may be required to pay or collect, and if applicable, shall be paid by Purchaser. Further, unless otherwise stated, all permits, licenses, or authorizations necessary for the use of the Products will be obtained by Purchaser at its sole expense. If this Agreement is a quotation, the terms and prices quoted (if any) will be firm only if accepted by Purchaser within thirty (30) days of the date of the quotation. Unless otherwise stated in writing by SMITH, quoted prices do not include costs for providing specific Product packaging and/or handling services that are requested by Purchaser or are otherwise necessary due to the nature of the Products being sold, and such costs will be included in the amount invoiced to Purchaser. Quoted prices also do not include materials and/or labor costs that may be associated with design work, dies, tooling, markings, packaging and other items necessary for the fulfillment of a Purchaser’s order, and such costs will be included in the amount invoiced to Purchaser.

Payment, Collection and Security Interests:
Unless otherwise agreed, payment for Products shall be net thirty (30) days from the date of the invoice. Payment terms and conditions are subject to change in SMITH’s discretion. Purchaser must make timely payment of all invoices in full, with no deductions or setoffs. If Purchaser does not pay in accordance with the payment terms, SMITH reserves the right to charge Purchaser 1.50% per month, or the maximum rate permitted by law, on the unpaid balance until paid in full. In the event that Purchaser fails to make payment in accordance with the terms set forth in this Agreement, SMITH is authorized by Purchaser to employ alternative collection measures to obtain payment from Purchaser of past due amounts to include but not limited to collecting from credit cards on file and using collection agencies. Purchaser further agrees that any costs, expenses and fees (including but not limited to reasonable attorneys’ fees) incurred by SMITH in attempting to collect such past due amounts owed by SMITH shall be added to the past due amount owed, and shall be paid by Purchaser to SMITH. Purchaser hereby grants to SMITH a security interest in the Products in order to secure Purchaser obligations hereunder and agrees upon request of SMITH to execute any documents necessary to perfect such interest and also grants SMITH power of attorney to execute such documents on purchaser’s behalf. In the event the purchase price is not paid in accordance with the payment terms, SMITH shall have all the rights and remedies of a secured party as provided for in Article 9 of the Uniform Commercial Code. Purchaser shall not sell, transfer, pledge, mortgage or otherwise encumber or dispose of the property subject to this agreement unless and until all sums due and owing SMITH hereunder have been paid in full. Purchasers are either End-user Consumers, Resellers, Dealers, Distributors, or Licensees of SMITH products sold under the SMITH brand, third party brand or SMITH brand private labeled under Purchaser’ own trademarks and trade names.

Title and Risk of Loss:
Title to goods shall pass to the Purchaser upon the date that the Products are paid in full. All risk of loss passes to Purchaser at goods shipping point.

Delivery:
Unless otherwise agreed, delivery of the Products will be F.O.B. SMITH’s plant or warehouse. Any specified delivery date is approximate only and not guaranteed by SMITH. If the Products are held by SMITH subject to receiving instructions from Purchaser, SMITH may invoice the Products and Purchaser agrees to make payment in accordance with this Agreement. Products invoiced and held at any location by SMITH will be held at Purchaser’s risk and SMITH may charge for (but is not obligated to carry) insurance and storage. Purchaser will accept and pay for partial deliveries at contract prices and terms. Under no circumstance shall SMITH be liable to Purchaser for any loss or damage to Products occurring during possession and/or transport by carrier. When Purchaser has declared or manifested an intention not to accept delivery in accordance with this Agreement, no tender will be necessary but SMITH may, at its option, give notice to Purchaser that SMITH is ready and willing to deliver and such notice will constitute a valid tender of delivery.

Discontinued Products:
SMITH agrees to notify Purchaser in writing not less than one (1) year in advance of the discontinuance of any Product. In the event SMITH is unable to manufacture the Products for Purchaser (due to bankruptcy, fire, or other event of force majeure), then Purchaser will have the right to manufacture the Products (or have the Products manufactured for Purchaser), and, in exchange, pay a reasonable royalty or license fee for such right. The parties will establish an escrow account providing for the deposit of updated copies of all information reasonably necessary for the manufacture of the Products with a third party (to be agreed upon by the parties) under terms to be agreed upon in good faith between the parties and such third party. Purchaser agrees to cover the costs for establishing and maintaining of said escrow account. SMITH will deposit in the escrow account all information reasonably necessary for the manufacture of the Products prior to shipment of the first order of Products. The conditions for the transfer of know-how related to such manufacture shall be agreed upon separately in good faith by the parties.

Force Majeure:
SMITH shall not be liable for failure to perform by reason of strikes, fires, floods, unavoidable accidents, wars, delays in transportation, acts of God, or other causes beyond its reasonable control. In connection with the foregoing, Purchaser acknowledges that delivery of the Products is contingent upon SMITH’s ability to obtain supplies, raw materials and services through its regular and usual sources and thus, if for any reason beyond SMITH’s control, SMITH is not able to meet anticipated deliveries, SMITH will not be liable therefore and may postpone the delivery date(s) under this Agreement for a period of time which is reasonable under all circumstances.

Warranties:
(See SMITH Warranty)
All statements, technical information and recommendations contained in SMITH ‘s literature, are based on tests believed to be reliable, but the accuracy or completeness thereof is not guaranteed, and the following is made in lieu of all warranties, expressed or implied. SMITH warrants each new piece of equipment or part to be free from defects in material and workmanship under normal use and maintenance as herein provided. This warranty does not apply to components manufactured by others such as, but not limited to, bearings, and engines; such components that may or may not have their own warranties. SMITH ‘s sole obligation for any breach of warranty or breach of contract for defects, deliberate or accidental omissions, shall be limited to repairing, replacing, or allowing credit for, at SMITH ‘s option, any part which, under normal and proper use and maintenance, proves defective in material or workmanship within ninety (90) days after delivery to or five hundred (500) hours of use by Purchaser, whichever shall occur first; provided, however, that notice of any such defect or omission and satisfactory proof thereof is promptly given by Purchaser to SMITH in writing within 10 days, and thereafter, such defective part is immediately returned to seller with transportation charges prepaid, and SMITH’s examination proves such part to have been defective. This warranty does not apply in respect to damages to any product or accessory or attachment thereof caused by overloading or other misuse, neglect or accident, nor does this warranty apply to any product or accessory or attachment thereof, which has been repaired or altered in any way which, in the sole judgment of SMITH, affects the performance, stability or general purpose for which it was manufactured. In the manufacture of Purchaser’s equipment, parts may be omitted or equivalent functioning equipment and components may be substituted for the original specified equipment upon the sole judgment and discretion of SMITH. SMITH ‘s only obligation shall be to repair or replace such quantity of the product proved to be defective. This warranty does not obligate SMITH to bear any transportation charges or personnel time in connection with the replacement or repair of defective parts. This warranty does not obligate SMITH to bear any expense for travel time or of personnel in connection with any service calls. SMITH will not, in any event, be liable to the user for any consequential damages arising out of this sale for the loss of use, lost profits or revenue, interest, lost goodwill or work stoppage. SMITH shall not be liable for any injury, loss or damage, direct or consequential, arising out of the use or the inability to use the product or for environmental claims. It being understood that the seller has no means of controlling the products final use; therefore, it shall be Purchaser’s responsibility to determine suitability of product for intended use and Purchaser assumes all risks and liabilities whatsoever, in connection therewith. This warranty is in lieu of all other warranties (except of title), expressed or implied, and there is no implied warranty of merchantability or of fitness for a particular purpose. In no event shall SMITH be liable for consequential or special damages. Used products are sold on an “as is” basis, and there is no implied warranty of merchantability or of fitness for a particular purpose, unless otherwise expressly stated on the face of this form. SMITH makes no warranties, expressed or implied, except as specifically stated herein. SUCH WARRANTIES, IF ANY, ARE IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. SMITH SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF SMITH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

Inspections and Acceptance of Claims:
Each delivery of Products will be inspected promptly by Purchaser for damage and defects, however Purchaser must notify SMITH of any claimed damage or defects no later than five (5) days after Purchaser’s receipt of the Products. If Purchaser fails to so inspect or notify SMITH, Purchaser will be deemed to have accepted the Products and to have waived any claim for damage or defect. If Purchaser inspects the Products and notifies SMITH within such period of its claim that the Products are damaged or defective, SMITH will review Purchaser’s claim, and if SMITH determines such claim to be valid, Purchaser and SMITH will mutually agree on the timing of curing such damage or defect. Any remedy of Purchaser against SMITH shall be barred unless notice is given in accordance with this Section. All actions by Purchaser for breach of warranty against SMITH must be brought within one (1) year after the cause of action thereon accrues.

Notice of Disclaimer:
SMITH may, at its option, and solely as an accommodation to Purchaser, make arrangements with third parties providing product and service for equipment, parts or services. It is understood and agreed by SMITH and Purchaser, that in no event shall SMITH have responsibility or any liability whatsoever for any damages resulting from the acts and/or omissions of SMITH, or such other companies, whether intentional, negligent or otherwise, and Purchaser, agrees to release and hold harmless SMITH from any loss, expense, damage or injury resulting from such acts or omissions.

General Indemnity:
If Purchaser’s employees, associates or agents are on or about SMITH’s premises or other property under SMITH’s control, or are working with or using property owned by or under the control of SMITH, Purchaser will be responsible for their acts and omissions and agrees to indemnify and hold SMITH and its officers, employees, and agents harmless from all liability of any nature for any claims or damages to property or injuries or death to persons arising out of their acts or omissions including, without limitation: (a) any claims arising from their failure to comply with applicable rules, regulations and directions governing security, maintenance and safety; (b) any claims against SMITH by or on behalf of any of them for injury or otherwise; and/or (c) any claims against SMITH resulting from Purchaser’s failure to maintain workers’ compensation or other public or private insurance with respect to any of them. The foregoing indemnity will also extend to, without limitation, claims asserted under the workers’ compensation laws of the State of Florida or any other jurisdiction and any consequential increased premium or contribution costs of or for securing workers’ compensation insurance, whether public or private, and/or any consequential costs of or for the direct payment of any such workers’ compensation benefits. Purchaser hereby expressly waives any statutory and/or constitutional immunity to which, but for this waiver, it might be entitled as an employer in compliance with the State of Florida workers’ compensation laws, or under any other employee benefit statute or similar laws of any jurisdiction.

Infringement Indemnification:
Purchaser will defend, indemnify and hold SMITH and its officers, employees, and agents harmless from and against any and all claims, demands, actions, liabilities, damages, or expenses (including reasonable attorneys’ fees) arising out of or in connection with any alleged infringement of any patent, copyright, trademark or other intellectual property right related to Products made specifically by SMITH for Purchaser as long as: (a) SMITH gives Purchaser prompt notice of any such claim, etc. and/or an opportunity to settle or defend it as Purchaser may see fit; and (b) SMITH gives Purchaser its reasonable assistance, at Purchaser’s expense, in connection with the defense and/or settlement of such claim. SMITH reserves the right to cancel Purchaser’s order, without liability, if, in SMITH’s opinion, the manufacture, sale or use of the Products would infringe any patent, copyright, trademark or other intellectual property right related to Products.

Permissible Variations:
SMITH has the right to make changes in the composition or formula of the Products which, in SMITH’s opinion, do not affect the general characteristics or properties of the Products or are within applicable government or industry standards or tolerances.

Cancellation:
Orders may not be cancelled or modified by Purchaser except with the express written consent of SMITH. SMITH may cancel or terminate all or part of the contract evidenced by this Agreement immediately if: (a) Purchaser is materially delinquent on any of its obligations hereunder or under any other order or transaction with SMITH; (b) Purchaser becomes insolvent; (c) a receiver under Title 11 U.S.C., as amended (the “Bankruptcy Code”) is appointed for or on behalf of Purchaser, or a case under any chapter of the Bankruptcy Code is commenced for, by or against Purchaser; (d) Purchaser suspends or terminates business or makes an assignment for the benefit of creditors; or (e) any event occurs, whether or not similar to the foregoing, which in SMITH’s good faith belief materially impairs the prospect of payment or performance by Purchaser. SMITH’s right to cancel or terminate an order pursuant to this section may be exercised by SMITH without liability to Purchaser for any damages.

Safety:
Purchaser warrants that it will comply with all OSHA and other safety-related laws, regulations, standards and requirements which are applicable to the use of Products in Purchaser’s business.

Quality Assurance:
The Product shall be manufactured in accordance with SMITH Manufacturing standards. Purchaser acknowledges that all information obtained shall be deemed proprietary information pursuant to Confidentiality.

Ownership of Intellectual Property:
The Purchaser acknowledges and agrees that SMITH is the exclusive owner of all rights and goodwill, if any, in all intellectual property disclosed in conjunction including, but not limited to, all proprietary information, patents, patent applications, trademarks, trade names, logos, trade dress, trade secrets, and copyrights used on or in conjunction with the SMITHs product specifications, proposals, marketing and promotional materials for such products (collectively, the “Intellectual Property”). The Purchaser agrees that it will not at any time claim ownership of or challenge SMITHs rights in any of the Intellectual Property unless any subsequent transaction documents authorize the purchaser to do so.

Value:
Each Receiving Party agrees and acknowledges that all Confidential Information is confidential, proprietary and of the highest value to the Disclosing Party and shall not be used by the Receiving Party in a competitive manner or in a manner otherwise detrimental or adverse to the best interests of the Disclosing Party.

Product Trademarks, Logos and Copyrights:
Purchaser agrees that the Products purchased and/or licensed hereunder shall be sold or leased by Purchaser only under the trademarks, trade names or logos (collectively the “Purchaser Marks”) of Purchaser. Purchaser shall not alter or remove any copyright, trademark, trade secret, proprietary and/or other legal notices of SMITH or third parties contained on or in the Products. The existence of any such copyright notice shall not be construed as an admission, or be deemed to create a presumption, that any alterations of such Products have occurred. SMITH shall label all Products with Product serial numbers; Purchaser may specify Product electrical data, Purchaser Marks and such other label information as. Purchaser shall provide SMITH with camera-ready artwork necessary for the labeling of the Products, which shall include, without limitation: Purchaser Marks, Product serial numbers, electrical data label information, and such additional information as may be specified by Purchaser. Purchaser shall be responsible for the costs of such labeling. Purchaser shall be responsible for ensuring that the Products and all labeling conform to applicable rules and regulations with respect to electrical standards established by Underwriter’s Laboratories (“UL”) for the United States and Canada and by European (“CE”). Purchaser shall be responsible for the costs of registration. The parties will discuss in good faith the apportionment of costs for ensuring conformity of the Products to rules of other applicable standard setting organizations in the applicable jurisdictions. Purchaser shall be responsible for the costs of registration with such other standard setting organizations in the applicable jurisdictions.

Confidentiality:
Purchaser will not disclose or otherwise disseminate, directly or indirectly, any of the terms of this Agreement or any other information of SMITH given to or received by Purchaser or its associates or agents, unless Purchaser received SMITH’s written permission or such information is required to be disclosed by law or becomes part of the public domain through no fault of Purchaser, its associates or agents. In the performance of or otherwise in connection with this Agreement, one party (“Discloser”) may disclose to the other party (“Recipient”) certain Confidential Information of the Discloser. (1) The Recipient will treat such Confidential Information as confidential and proprietary of the Discloser and during and after the Term will: (a) use the Confidential Information of the Discloser solely for the purposes set forth in this Agreement; (b) take suitable precautions and measures to maintain the confidentiality of the Confidential Information of the Discloser; and (c) not disclose or otherwise furnish the Confidential Information of the Discloser to any third party other than employees or independent contractors of the Recipient who have a need to know the Confidential Information to perform its obligations under this Agreement, provided such employees or independent contractors are obligated to maintain the confidentiality of the Confidential Information. (2) The obligations under this Section will not apply to any: (a) approved use or approved disclosure of any information pursuant to the exercise of the Discloser’s rights under this Agreement; (b) information that is now or hereafter becomes generally known or available to the public other than through a violation of this Agreement; (c) information that is obtained by the Recipient from a third party (other than in connection with this Agreement) who was not under any obligation of secrecy or confidentiality with respect to such information; (d) information that is independently developed by the Recipient without reference to any Confidential Information; (e) any disclosure required by applicable law, provided that the Recipient will use reasonable efforts to give advance notice to and cooperate with the Discloser in connection with any such disclosure, and provided further that the Recipient shall limit such disclosure to only that information that is required to be disclosed; and (f) any disclosure made with the explicit consent of the Discloser. The Recipient shall promptly return to the Discloser all copies of any Confidential Information of the Discloser in its possession or control upon request, or in any event, upon any termination or expiration of the Term.

Exclusive Source Relationship:
Reseller/Dealer/Distributor: Purchaser acknowledges and agrees that in exchange for the favorable pricing and special service offerings being made available to Purchaser, Purchaser agrees to promote and source its products business solely from SMITH.

Customization for the Market:
Reseller/Dealer/Distributor: Any SMITH branded or private label products may not be altered and if modifications to include Purchaser adding their own power or product improvements, the Purchaser shall indemnify and hold SMITH and its respective affiliates, directors, officers, employees and agents harmless from and against any and all claims, losses, liabilities and damages of any kind (including reasonable attorneys fees) resulting from or based on any modifications committed by the customer, or its officers, directors, agents or employees.

Non-Solicitation, Non-Compete Covenants:
Reseller/Dealer/Distributor: During the period of this agreement and for a period of 2 years after termination of this agreement, Purchaser will not directly or indirectly solicit, induce or attempt to induce any employee or subcontractor of SMITH, to terminate his or her employment or relationship with SMITH. SMITH agrees that it shall not directly or indirectly solicit, induce or attempt to induce any employee of Purchaser to terminate his or her employment with Purchaser. For the period beginning on this date and ending two (2) years after the last date of product purchased, Purchaser will not operate, own, consult for, sell to, or be employed by any other business which competes with SMITH’s business or the individual products purchased, or any part of it, and to devote its best efforts to promote, market, report and sell SMITH Products in a professional manner consistent with highest industry standards. For a period beginning on this date and ending two (2) years after the last date purchased, Purchaser will not carry on or engage in products similar to SMITH’s business, or any part of it. For a period beginning on this date and ending two (2) years after the last date purchased, Purchaser will not solicit customers of SMITH. For a period beginning on this date and ending two (2) years after the last date purchased, Purchaser will not solicit Distributors or independent Distributors of SM ITH to cease Representation with SMITH or to cease working for Company or to go to work for anyone other than SM ITH. For a period beginning on this date and ending two (2) years after the last date purchased, Purchaser will not solicit any other product lines or copy or duplicate products directly or indirectly in competition with the lines carried by SMITH. This provision shall survive the termination of this agreement for the period stated herein. A violation by the Purchaser of this paragraph shall be deemed a material violation of this Agreement and will justify legal and/or equitable relief specifically including injunctive relief; it being recognized by the parties that damage will be incurred by SMITH for which there is no adequate legal remedy by law. If such a violation occurs and SMITH seeks legal remedy resulting in an injunction or judgment in the favor of SMITH, the Purchaser shall be responsible for reimbursing Seller for all reasonable legal expenses incurred.

Return of Confidential Information:
Upon the Disclosing Party’s written request, all Confidential Information, including, without limitation, all copies of all documents and other materials which the Receiving Party (a) has received containing Confidential Information, or (b) has prepared based upon such Confidential Information, in any form whatsoever, shall be immediately returned upon demand to the Disclosing Party, along with a certificate signed by an authorized officer of the Receiving Party (as applicable) that all such information has been returned, and that none of the Confidential information has been retained by the Receiving Party in any form. In the alternative the Receiving Party may destroy such confidential information and ratify such destruction.

Non-Circumvention:
Each party understands and agrees that the purpose of this Agreement is to evaluate the Transaction. Neither party shall directly nor indirectly interfere with, circumvent or attempt to circumvent, avoid or by-pass or obviate each other’s interest with respect to any third party for the purpose of (a) directly or indirectly changing, increasing, or avoiding the payment of proposed or actual consideration in any form or (b) taking unfair commercial advantage of pre-existing business relationships of the other party so as to by-pass or deprive the other party of a commercial or economic benefit to which such party may or would otherwise be entitled.

Notices:
Whenever, by the terms of this Agreement, notice, demand or other communication shall or may be given to either party, the same shall be in writing and shall be addressed to the other party at its address first set forth above, or to such other address or addresses as shall from time to time be designated by written notice by either party to the other in accordance with the Notices Section. All notices shall be sent by registered or certified mail, return receipt requested, by delivery or by Federal Express or other comparable courier providing proof of delivery, and shall be deemed duly given and received (a) if mailed, on the tenth business day following the mailing thereof, or (b) if sent by courier or if delivered, the date of its receipt (or, if such day is not a business day, the next succeeding business day).

Waivers:
No delay or omission on the part of either party to this Agreement in requiring performance by the other party or in exercising and right hereunder shall operate as a waiver of any provision hereof or of any right or rights hereunder; and the waiver, omission or delay in requiring performance or exercising any right hereunder on any one occasion shall not be construed as a bar to or waiver of such performance or right, or of any right or remedy under this Agreement, on any future occasion. A waiver must be in writing, executed by the party against which enforcement is sought, in order to be enforceable.

Section Headings:
Section headings are for descriptive purposes only and shall not control or alter the meaning of this Agreement.

Rights and Remedies:
All rights and remedies of either party hereunder shall be cumulative and may be exercised singularly or concurrently. The failure of either party, in any one or more instances, to enforce any of the terms of this Agreement shall not be construed as a waiver of future enforcement of that or any other term. No rights or licenses with respect to the Products are granted or deemed granted hereunder or in connection herewith, other than those rights expressly granted in this Agreement.

Registration:
In the event that this Agreement is required to be registered with any governmental authority, Purchaser shall cause such registration to be made and shall bear any expense or tax payable in respect thereof.

Assignment and Corporate Reorganization:
Neither this Agreement nor any rights granted hereby may be assigned by either party voluntarily or by operation of law without the other party’s prior written consent (which will not be unreasonably withheld) and any such attempted assignment shall be null and void. For purposes of this Agreement, “assignment” shall be deemed to include the transfer of all or substantially all of the assets of, or a majority interest in the voting stock of, either party, or the merger of either party with one or more entities. This Agreement shall inure to the benefit of and be binding upon any successor or assign of either party.

Entire Contract:
This Agreement are the complete terms and conditions of SMITH’s Purchase Sale Agreement and contains the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written which have not merged into this agreement. Entire agreement and applicable law the rights and obligations of SMITH and Purchaser shall be governed by the laws of the state of Florida, U.S.A. In force on date hereof. The provisions hereof are intended by Purchaser and SMITH as a final expression of their agreement, and are intended also, as a complete and exclusive statement of all terms. No waiver, modification, or addition to any of the terms hereof shall be binding on SMITH. In the event of conflict between Purchaser’s purchase order and the terms hereof, the SMITH’s terms shall control and shall be valid and enforceable to the fullest extent permitted by law.

Corrections:
Typographical, electronic or clerical errors contained herein are subject to correction by SMITH.

Fair Labor Standards:
SMITH ‘s products are produced in the United States and other countries in conformity with all applicable provisions of fair labor standards act of 1938 as amended, and any regulations and orders of the United States Department of Labor issued hereunder.

Breach:
In case of breach of this agreement by Purchaser, SMITH shall give Purchaser written notice and a reasonable opportunity to cure the breach. If the breach continues, SMITH shall be entitled to equitable and injunctive relief to restrain Purchaser from violations of the covenants herein. Such relief shall be in addition to and cumulative of any other remedy available to SMITH for the breach of the covenants. The parties agree that, if Purchaser violates any of these covenants, that SMITH would be irreparably harmed. The prevailing party in any litigation involving this instrument shall be entitled to recover treble damages and reasonable attorney fees. Purchaser shall be responsible for all costs of collection of outstanding indebtedness, including but not limited to attorney’s fees and court costs to seller. Purchaser shall reimburse SMITH for any and all litigation expenses seller incurs as a result of an unsuccessful Purchaser claim. The jurisdiction and venue of the court for any litigation, state or federal, brought by the Purchaser and/or SMITH shall be located in venue determined solely by SMITH.

Equitable Relief:
Nothing in this Agreement will prevent a party from bringing an action for equitable or injunctive relief in any court of competent jurisdiction to compel the other party to comply with its obligations under the Agreement.

Relationship of the Parties:
Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint ventures or partners for any purpose. Neither party shall be responsible for the acts or omissions of the other party, and neither party will have authority to speak for, represent or obligate the other party in any way without prior written authority from the other party.

Severability:
If any provision of this Agreement shall for any reason be held illegal or unenforceable, such provision shall be deemed separable from the remaining provisions of this Agreement and shall in no way affect or impair the validity or enforceability of the remaining provisions of this Agreement, unless removal of the invalidated provision renders another provision impossible to perform or inconsistent with the intent of the parties.

Term and Termination:
Upon the occurrence of an Event of Default (as defined below), the non-defaulting party, in its sole discretion, shall have the right to terminate this Agreement, in addition to any other remedy or remedies which may be available to it under this Agreement, at law or in equity. In addition, upon the occurrence of an Event of Default by Purchaser, SMITH shall have the right to cancel any or all unfilled orders for Products submitted by Purchaser. The following events shall be deemed “Events of Default” with respect to the party engage in such activity:(a) Either party breaches its obligations, (b) Either party fails to perform any of its covenants, obligations or responsibilities under this Agreement which failure remains uncured for thirty (30) days after notice thereof from the non-defaulting party; provided that the non-defaulting party delivers written notice to the defaulting party within ninety (90) days of the alleged default; (c) The dissolution, termination of existence, liquidation, insolvency or business failure of either party, or the appointment of a custodian or receiver for either party or any part of its property if such appointment is not terminated or dismissed within sixty (60) days; (d) The institution by either party of any proceeding under the United States Bankruptcy Code or any other federal, national or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally or the making by either party of a composition or any assignment or trust mortgage for the benefit of creditors; and (e) The institution against either party of a proceeding under the United States Bankruptcy Code or any other federal, national or state bankruptcy, reorganization, receivership, insolvency or other similar law affecting the rights of creditors generally, which proceeding is not dismissed within sixty (60) days of filing.

Miscellaneous:
If any of the provisions of this Agreement are deemed invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired thereby. This Agreement and the contractual relationship between SMITH and Purchaser shall be governed by and construed under the internal laws of the State of Florida (without regard to Florida conflicts of law principles). No right or interest in the contract arising from this Agreement may be assigned by Purchaser and no delegation of any obligation owed by Purchaser may be made without the prior written permission of SMITH. The rights and remedies of SMITH herein will be cumulative and additional to any other or further rights and remedies provided in law or equity. Waiver by SMITH or Purchaser’s performance, or inaction with respect to Purchaser’s breach of any provision of this Agreement, or failure of SMITH to enforce any provision of this Agreement (including, without limitation, the imposition of any finance charge), will not be deemed a waiver of future compliance therewith or a course of performance modifying such provision, and such provision will remain in full force and effect as written. The titles and headings of the various sections of this Agreement are solely for convenience and are not part of the Agreement for purposes of interpreting the provisions hereof.