1. Agreement. The seller (“Seller”) identified on the accompanying purchase order (“Purchase Order”) agrees that these terms and conditions (“Terms and Conditions”) shall apply to the purchase by Leaf Home, LLC and its subsidiaries and/or affiliates, including, but not limited to LeafFilter North, LLC and LeafFilter North of Canada, Inc. (“Buyer”) of the products (“Products”) and/or services (“Services”) identified on the Purchase Order and shall be incorporated by reference into such Purchase Order. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sales of Products and Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
  2. Acceptance. The Purchase Order constitutes Buyer’s offers to purchase Products and/or Services from Seller in accordance with these Terms and Conditions, which shall constitute a binding contract between the parties. Seller’s Purchase Order is limited to and conditioned upon Seller’s acceptance of these Terms and Conditions. These Terms and Conditions prevail over any of Seller’s general terms and conditions of sale regardless whether or when Seller has submitted its sales confirmation or such terms. Any terms and conditions proposed by Seller in any document that are different from, conflict with, or add to these Terms and Conditions are hereby objected to and rejected by Buyer. The Purchase Order, including these Terms and Conditions, shall be deemed accepted by Seller upon the earliest to occur of: (i) written or oral acknowledgment by Seller of the receipt of the Purchase Order with the intent, express or implied, that Seller will provide the Products and/or Services; (ii) written or oral acknowledgment by Seller that Seller has commenced performance or that Seller intends to ship or deliver the Products; or (iii) receipt by Buyer of the Products.
  3. Price and Taxes. The price of the Products and Services is the price stated in the Purchase Order. Unless otherwise specified in the Purchase Order, the price includes all packaging costs, transportation costs, insurance, customs duties, and all federal, state, and local taxes imposed upon or on account of such sale.
  4. Invoices and Payment Terms. Individual invoices must be issued for each shipment under the Purchase Order. Unless a later payment date is provided for in the Purchase Order, or in Seller’s invoice, in which case the later date shall control, invoices shall be payable within forty-five (45) calendar days after receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
  5. Delivery. TIME OF DELIVERY IS OF THE ESSENCE. Seller shall deliver the Products in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If Seller fails to deliver the Products in full on the Delivery Date, Buyer may terminate the Purchase Order immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Products on the Delivery Date. Delivery shall not be deemed to be complete until the Products have been actually received and accepted by Buyer. Title and risk of loss passes to Buyer upon delivery and acceptance of the Products by Buyer.
  6. Inspection. Buyer shall have the right to inspect Products delivered prior to acceptance, notwithstanding the fact that full or partial payment for the Products has been made prior to delivery, that the Products have been inspected at Seller’s place of business, or that the condition of the Products has been otherwise certified to Buyer. Such inspection may include any measurement, testing, or examination which leaves possible the return of the Products to Buyer in substantially the same condition in which they were delivered to Buyer. Buyer may reject or revoke its acceptance of any Products which do not strictly confirm to Seller’s obligations under the Purchase Order.
  7. Cancellation. Buyer may, by written notice to Seller, cancel the Purchase Order, or any portion of it, upon the occurrence of any of the following events: (a) Seller fails to perform any of its obligations under the Purchase Order or breaches a representation or warranty under these Terms and Conditions; or (b) Buyer in its reasonable opinion believes that Seller’s ability to perform the Purchase Order is in danger or impaired.
  8. Warranties. Seller warrants that all Products purchased and delivered: (a) shall strictly conform in all respects with Buyer’s descriptions and specifications; (b) shall strictly conform in all respects to any samples, drawings, specifications or other written documents presented to Buyer in connection with the sale of such Products to Buyer; (c) shall be merchantable, of new and best material, and fit for the purpose for which such Products are intended; (d) shall be free from all defects, including latent defects in workmanship, material, and design; and (e) not infringe or misappropriate any third party’s patent or other intellectual property right. Seller further warrants to Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligation under this agreement. These warranties are cumulative and in addition to any other warranty provided by law or equity; shall survive inspection, delivery, acceptance, and payment; and shall run to Buyer, its officers, agents, employees, successors, assigns, customers, and users of the Products.
  9. Compliance with Laws. Seller warrants that the Products have been and will be manufactured and sold in strict compliance with all applicable federal, state, and local laws, rules, regulations, and orders.
  10. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under these Terms and Conditions to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Agreement.
  11. Indemnification. Seller shall defend, indemnify and hold harmless Buyer, its officers, agents, employees, successors, assigns, customers, and users of the Products from and against any and all loss, injury, death, damage (including special, consequential and incidental damages), liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Products and Services purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms (including, but not limited to, breach of warranty). Seller shall not enter into any settlement without Buyer’s prior written consent.
  12. Confidential Information. All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Purchase Order is confidential, is disclosed solely for the purpose of performing this Purchase Order and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section.
  13. Patents, Trademarks, and Copyrights. Seller represents that all Products do not and will not infringe on any United States or foreign patent, trademark, copyright, or other intellectual property rights of a third party. If the Products or any part of the Products become the subject of a United States patent, trademark, copyright, or other intellectual property right infringement suit or proceeding, Seller promptly and at its own expense shall either: (a) procure for Buyer the right to continue to use the Products; (b) replace the Products with non-infringing Products satisfactory to Buyer; or (c) modify such Products in a way satisfactory to Buyer and its counsel so they become non-infringing.
  14. Changes. No change to these Terms and Conditions shall be binding except upon written authorization of Buyer. Buyer may at any time by written notice, make changes within the general scope of the Purchase Order in the specifications, designs, packaging, methods of shipment, quantities, place of delivery, or delivery schedule(s).
  15. Waiver. No waiver by Buyer of any of the provisions of these Terms and Conditions is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms and Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any right, remedy, power, or privilege.
  16. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under these Terms and Conditions or the Purchase Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under these Terms and Conditions or the Purchase Order without Seller’s prior written consent.
  17. Severability. In the event of invalidity of a provision of these Terms and Conditions, the parties shall deem that provision stricken in its entirety and the balance of these Terms and Conditions shall remain in full force and effect.
  18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in these Terms and Conditions and/or the Purchase Order 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.
  19. Governing Law and Jurisdiction. The Purchase Order and these Terms and Conditions shall be construed and enforced in accordance with the substantive and procedural laws of the State of Ohio, without regard to principles of conflicts of law, and without regard to rules of construction relating to which party drafted the Purchase Order or these Terms and Conditions. All litigation concerning these Terms and Conditions shall occur only in the state and federal courts in the Northern District of Ohio, and each party consents to exclusive jurisdiction in such courts.