Direct Supply Manufacturing, Inc.
Private Label Terms & Conditions

Pricing, Incentives & Payment Terms. Product details (warranty, lead time, etc.), costs, incentives, and other related Product information will be as set forth in a mutually accepted Supplement or agreed upon via email. Except as otherwise noted, Product costs are firm for at least twelve months. Payment terms are net 60 after Product shipment or completion of Services and receipt of your invoice. Payment does not constitute acceptance of any Product, Service or Software provided. If an unresolved customer issue arises before payment would otherwise be due, we reserve the right to withhold that amount of payment related to such issue until it is resolved to our and our customer’s satisfaction.

Communication & Invoicing. You will accept and acknowledge our purchase orders within one business day by EDI (electronic data interchange) or Nucleus (DSM electronic supplier interface system). If our purchase order includes services, You agree to provide the Services identified, unless otherwise mutually agreed to by the parties in writing (e.g. email). The parties agree that the cost quoted by you and confirmed by us in a purchase order is complete and includes all Services, Products, installation, training, implementation, labor, materials, supervision, equipment, supplies, transportation, storage, licenses, inspections, permits, overhead, profit, insurance, and other customary items necessary for your timely and proper performance of your obligations under this Agreement; all other costs are your sole responsibility. You agree to electronically communicate all invoices to us on the day the Products are shipped or by 4:00 p.m. (CST) the day after the Products are shipped. There is no minimum purchase commitment or requirement. If the costs or any other terms on our purchase order(s) are incorrect, you must notify us prior to shipment. Your invoice shall include the costs on our purchase order, the tracking number, either the carrier name or Standard Carrier Alpha Code, and Product serial numbers (where applicable). You agree that our account will not be placed on credit hold without at least three prior business days notice and an opportunity to cure. You agree we have the right to offset any debts and other obligations we may have with you against any debts or other obligations you may have with Direct Supply.

Lead Times. Supplier agrees to proactively notify us when any Product is unavailable for shipment, or Service will not be performed, within the agreed-upon lead-time. Unless we request otherwise, you agree to ship Products FIFO. You agree not to split ship orders without our request or approval. Time is of the essence for each order.

Return Goods Policy. Both parties understand that offering quality products and prompt resolution of any customer concerns is crucial to their success. You agree to promptly process and accept for a full refund all (i) defective Products and (ii) Products which are unused and undamaged. Restocking fees do not apply and you shall incur all return shipping expenses, unless such return is due to our error. At our discretion and your expense, defective Products may be returned to you, returned to us, or destroyed by the customer. You will issue credits in an amount agreed to by the parties within 10 business days of return using EDI, Nucleus, or other reasonable electronic medium which we may identify with all such credits referencing our original purchase order number.

Warranties. Unless otherwise agreed, you will extend your longest warranty and warranty period you make available. In addition, you warrant that all Products will comply with all laws and regulations applicable to them, will be free from defects in material and workmanship, and will conform to the most recently agreed upon version of the feature guideline at the time the Product is produced. If a Product(s) does not meet these warranties, you agree to promptly repair or replace it at your sole cost or we may, at our discretion, return the Product(s) to you for a refund. You understand Products may be sold to individual consumers and you agree to provide all necessary information regarding sales to consumers. Product warranties begin on the date of receipt (or installation, if applicable) at the end user. If applicable, you warrant that all Services will be provided by properly trained individuals using the highest degree of care and skill of similar professionals or trades within the locality and will be warranted for a minimum of ninety (90) days.

Packaging & Branding. You agree to (i) ship Products with the appropriate type and amount of protective packaging consistent with industry standards and appropriate for the nature and quantity of Products being shipped, (ii) reimburse us for damages and claims related to your failure to comply with the packaging obligations set forth herein, and (iii) notify carriers of hazardous materials, if any, to be shipped by you. You may not use our name (including the names of our subsidiaries, affiliates, divisions and product names) in any form of publicity or to release to the public any information relating to the Products, Services, or Software provided to us under this Agreement, or to otherwise disclose or advertise that you have entered into this Agreement, except with our specific prior written approval. You will comply with our Branding Guidelines, which may be updated from time to time by us upon notice to you, as well as any branding requirements set forth in our supplement or feature guidelines. No Product, product documentation, labeling or packaging may contain other Supplier identifying information except as may be limited in a Supplement or as required by law. Unless otherwise agreed, you shall reproduce and include the appropriate product documentation with each Product packaged and shipped and that each Product unit will carry a lot and/or unique serial number as approved by DSM for tracking purposes.

Customer Service. Your customer service department will respond to us via e-mail within one business day of any request and you will promptly contact us should you learn of any customer service issues related to a Product, Service or Software. You agree that, except as otherwise required by law, your representatives will not contact, make any representations to or attempt to resolve any service issue with our customers prior to contacting and coordinating with us regarding the same and you shall not identify your company name to the customer.

Audit Rights.Supplier will permit and cooperate with regular and ongoing quality and compliance audits by DSM or its representative at Supplier’s or its subcontractor’s (as applicable) manufacturing facility(ies) at DSM’s sole cost and in a such a manner so as not to unreasonably interfere with Supplier’s operations. Notwithstanding the foregoing, Supplier will permit, cooperate with, and pay for any audits based on DSM’s good faith suspicion that the Supplier is not in compliance with its obligations under this Agreement.

Shipping. You agree to have all orders for Products drop shipped, F.O.B. shipping point. There is no drop ship penalty, minimum order, handling charge, or cancellation fee. You agree to reference on all shipping labels and packing slips our name, the ship-to information, our customer PO number, and any other shipment notes (excluding Supplier-only notes) in our purchase order. If you utilize multiple shipping points, you agree to ship from the location nearest to the “Ship To” address on our purchase order if that shipping point has Products available.

Third Party Freight Program. Our Third Party Freight (“TPF”) program consists of: (1) a parcel program in which Products are shipped through our designated parcel carrier; and (2) a less-than-truckload (“LTL”) program in which Products are shipped through our designed transportation provider. The following terms apply to TPF:

  1. Third Party Billing. You will ship Products to our customers utilizing third party billing. The TPF provider will invoice us directly for the freight charges. You will provide the following information to us so that we can accurately calculate freight costs: the weight and carton dimensions of each Product when packaged for shipment and the freight class of each item. In addition, for “parcel” shipments, you will identify the quantity of Products to be shipped by common carrier.
  2. Claims Filing. We will file claims on our behalf and/or on behalf of our customers. Unless otherwise requested by our operations team, we will be responsible for initiating call tags, ARS labels, or LTL pick-ups for TPF shipments. However, if a claim or return involves some error on your or your Staff’s part, then you will reimburse us for any excess charges.
  3. Freight Quotes. We or our affiliated company’s Logistics team will manage and provide all freight quotes for TPF shipments; you agree to provide us information we request to complete the freight quote. For orders of Products $5,000 or more, we have authorized our affiliated company’s sales team to directly contact you to request a competitive supplier freight quote for LTL shipments. If contacted, you may provide a freight quote at your reasonable discretion. If a freight quote is provided and our affiliated company’s sales team decides to ship the Product order with that quote, then your network of carriers will arrange for shipment as F.O.B. shipping point, reasonable freight prepaid and added to the invoice.

If you arrange for or are responsible for arranging for freight of a Product order, then (i) we will only be responsible for the actual freight amount charged by the carrier, and (ii) in the event of damage, concealed damage or lost shipment, you will file claims on our behalf or on behalf of our customer as we may advise you. Unless we request otherwise, you agree to initiate call tags, ARS labels, and/or LTL pick-ups within one business day of request. We will reimburse you for all call tags and freight charges, unless the return is a result of your error.

Independent Contractor & Taxes. Each party and their Staff (defined below) are independent contractors and not employees of any other party. You are responsible for the acts and inactions of your Staff and for ensuring your Staff’s compliance with this Agreement. No tax of any kind will be withheld or paid by one party on behalf of another party’s Staff. This Agreement does not create a relationship of partnership, joint venture, employment, or agency whether express or implied. We are purchasing or licensing, as applicable, for resale/sublicensing purposes. Upon request, we will provide you with a copy of our reseller’s certificate. No sales tax should be charged to us on Products, Services or Software.

Product Ownership; Inventory Responsibility. Title to all raw materials, sub-assemblies and Products are Supplier’s property and will be held in Supplier’s or its subcontractor’s inventory until Products have been loaded for shipment at the agreed-upon shipping location within the United States at which point title to such Products will transfer to DSM. There are no minimum quantities or order commitments for Products by DSM from Supplier unless otherwise agreed to by the parties in writing.

Insurance. You and your Staff, as applicable, agree to obtain and maintain at its own expense the insurance coverage and limits as described below during and for three years following the end of the Agreement and provide us with the required Certificates of Insurance evidencing such insurance as a condition of receiving any payment. All policies must be provided through a licensed United States insurance carrier and provide for no cancellation or reduction of coverage without thirty days prior written notice to us. Certificates of insurance must be furnished during and for three years following end or termination of the Agreement. Supplier’s insurance carriers must maintain an A.M. Best’s rating of “A-“ or better. Policies may not include any endorsements or modifications arising from pollution, explosion, collapse, underground property damage, or work performed by subcontractors. A waiver of subrogation endorsement is required for all policies. No deductibles or self-insured retentions may exceed $25,000 without our written consent. Supplier shall carry Commercial General Liability (GL) insurance coverage and product liability/ongoing and completed operations (Prods/Com. Ops) coverage in amounts no less than $2,000,000 each occurrence, $5,000,000 aggregate, and $1,000,000 in Personal and Advertising Injury Coverage (Pers. & Adv. Inj.) naming Direct Supply Manufacturing, Inc. and its officers and employees as an additional insured on a primary basis. For Software, Supplier shall also carry $5,000,000 in Technology & Information Errors & Omissions Liability (Cyberliability) insurance coverage naming Direct Supply Manufacturing, Inc. and its officers and employees as an additional insured on a primary basis. Additionally Supplier must maintain Professional Errors and Omissions coverage with limits not less than $3,000,000 per wrongful act. For all GL policies, you must provide us a copy of your policies’ additional insured endorsements along with a copy of your certificate of insurance. GL Aggregate requirements may be met through GL insurance, Excess/Umbrella coverage or a combination of both. GL Coverage must be on an occurrence coverage form. A “claims made” or “modified occurrence” policy is not acceptable. All GL policies must also provide insurance for bodily injury liability, property damage liability, premises and operations coverage, contractual liability insuring Supplier’s obligations, and broad form property damage. Supplier shall also carry worker’s compensation/employer’s liability as required by the applicable state law; $1,000,000 per each employee, accident, and disease. Supplier shall also carry auto liability insurance coverage for all owned, hired and non-owned autos in amounts no less than $1,000,000 per occurrence with a combined single limit each accident for bodily injury and property damage. If Supplier is performing hazardous material work (e.g. asbestos removal), Supplier must also maintain pollution liability coverage with limits no less than $3,000,000 per occurrence covering losses caused by pollution conditions that arise from Supplier’s operations. This insurance shall provide coverage for bodily injury and death; loss or damage to property, including loss of use of property or of property that has not been physically injured; cleanup costs; and costs and expenses incurred in the investigation, defense, or settlement of claims. Supplier’s liability is in no way limited to the types or amounts of insurance set forth above, and to the extent it maintains insurance greater than these minimum requirements, such insurance shall be applicable to any liability obligations. In specifying minimum insurance requirements, we do not recommend this insurance as adequate to Supplier’s needs or requirements; Supplier is solely responsible to determine its insurance needs. Any other insurance maintained by DSMI is excess and not contributing insurance with the insurance requirement hereunder.

Indemnity. DSM agrees to defend, reimburse, indemnify, and hold harmless Supplier from and against all assessments, claims, demands and judgments for liability, damages (including without limitation punitive damages), costs (including attorneys’ fees and litigation expenses through trial and appeal), and fines (collectively “Liability”) made or recovered against Supplier arising out of or relating to: a) any misrepresentations to DSM’s Customers to the extent caused by DSM or its employees; b) any intentional misconduct or gross negligence by DSM or its employees; c) violation of any third party intellectual property rights caused by the Product Trade Name (defined below) (if provided by DSM); or d) violation of any law by DSM. Supplier agrees to defend, reimburse, indemnify and hold harmless DSM and all of its agents, employees, customers, and insurers from and against all Liability made or recovered against a DSM Indemnitee for any of the following caused by Supplier, Supplier’s employees, contractors, dealers, installers, material suppliers, agents, representatives, principals, subcontractors or related entities (collectively “Staff”), or arising out of or relating to the manufacture, production, design, or shipment of any Product, Service, and/or Software. An indemnitee shall promptly notify the indemnifying party in writing of any claim and cooperate in its defense. “Trade Name” means the Product name, trademark, and logo.

LIMITATION OF LIABILITY. Except for any obligations of indemnification or otherwise expressly provided herein, UNDER NO CIRCUMSTANCE WILL A PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOST PROFITS NO MATTER HOW ARISING OR WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Except for any obligations of indemnification or otherwise expressly provided herein, THE TOTAL LIABILITY, IF ANY, OF DSM WILL BE LIMITED TO THE COST OF THE PRODUCT(S) GIVING RISE TO THE CLAIM.

Inventions. In the event that DSM is purchasing a private label version of Supplier’s existing product and no changes have been made to the product beyond adding a DSM brand, DSM claims no rights to Supplier’s existing patents, copyrights, or trademarks incorporated into the product. Additionally, DSM claims no rights to Supplier’s existing patents, copyrights, or trademarks which were created prior to discussions with DSM began that are not used in or incorporated into the Product. However, all other intellectual property, patents, trademarks, works, copyrights, designs, inventions, trade dress, discoveries, processes and improvements (each a “Work”) arising out of or relating to the Products and any potential Products are DSM’s sole and exclusive property and DSM is deemed to be the inventor, owner, creator, and author of such Works. To the extent any Works are found not to be work for hire, Supplier will assign and transfer (and if applicable cause its Staff to assign and transfer) to DSM all rights, title, royalties, and interest in and to such Works and cooperate with DSM and execute, upon DSM’s request, a signed transfer of all such rights, consent and waiver to any moral rights, and other documentation reasonably required for DSM to secure its rights to such Works. Supplier and Supplier’s Staff will promptly disclose to DSM all Works made or conceived by them arising out of or related to the Products. Upon DSM’s request, Supplier will deliver to DSM, all such Works, records, and information, together with any written or electronic material related thereto. Neither Supplier nor any of its Staff shall apply or file any document for any patent, trademark or copyright for any Work. Supplier will be responsible for breaches by this section by its Staff.

Other Sales. No party to this Agreement is prevented from manufacturing, marketing or selling products similar to the Products covered by this Agreement unless: (a) it is prohibited by this Agreement (e.g. Products with a Direct Supply Trade Name may only be sold to DSM; Supplier cannot make or sell Products that incorporate DSM’s Works); or (b) it is prohibited by another Agreement between the parties. Notwithstanding the foregoing, Supplier will only sell the Products to DSM.

Title & Lien Waivers. Supplier warrants that title to all Products will pass to DSM and DSM’s Customers free and clear of all liens, claims, security interests and encumbrances. By accepting any payment, Supplier: (a) waives and releases all claims and lien rights to the Products, the premises on which Products are installed or located, and any monies owed only to the extent of the accepted payment; (b) certifies that it has made or will promptly make payment to its subcontractors and suppliers from the proceeds of any prior payments accepted; and (c) at DSM’s request, will immediately execute, and will use its best efforts to cause its subcontractors and suppliers to execute, such lien waiver documentation as DSM or DSM’s Customers may reasonably request. Notwithstanding the foregoing, with respect to any loaner Products (e.g. during warranty repair), you retain all title to and responsibility for such loaner Products and we have no responsibility or liability for any loaner Products.

Change or Termination. A party may terminate this Agreement by written notice in the event of a breach by the other party that has not been cured within 30 days of such party’s receipt of written notice of the breach by the non-breaching party. If a breach relates only to Products covered by one or more Supplement documents, the non-breaching party may, in its sole discretion, terminate the entire Agreement or only the affected Products or Supplement documents. In addition, DSM may terminate this Agreement or any Supplement document in whole or in part at any time by providing you no less than 90 days prior written notice. Supplier may terminate this Agreement or any Supplement document by providing DSM no less than 270 days prior written notice. The following clauses shall survive the termination or expiration of this Agreement for any reason: Warranties, Customer Service, Insurance, Indemnity, Limitation of Liability, Inventions, Other Sales, Title & LIen Waivers, Change or Termination, Effect of Termination or Expiration, Export & Import of Products, Confidentiality, Protected Health Information, Medical Device Information, Ongoing Support, Software Specific Terms, Miscellaneous.

Effect of Termination or Expiration. In the event of any termination or expiration of this Agreement, DSM will purchase all Final Products (defined below), all parties will assist with coordinating the transition, and all parties will provide timely and accurate information related to the transition. Supplier agrees to continue to accept orders for, manufacture and ship Products as well as otherwise meet its obligations under this Agreement through the Support End Date (defined below) unless so prohibited by applicable law. If a party does not meet its obligations, at the non-breaching party’s option and upon notice to the breaching party, the non-breaching party may deduct from all amounts due the breaching party, or if no such amounts are due, the breaching party will pay the non-breaching party the difference between the price the non-breaching party is required to pay for a substitute product from another supplier and the Product cost set forth in the applicable Supplement, plus reasonable and actual incidental expenses. Supplier agrees to honor its warranties for each Product throughout the duration of such Product’s warranty term. On the Support End Date, Supplier agrees to promptly remove and destroy or return all labels, boxes and other DSM branded material that are still in Supplier’s possession. The “Support End Date” means December 31st of the calendar year after the effective date of termination or expiration of this Agreement. “Final Products” means all remaining Products of merchantable quality as of the Support End Date, however, in no case will such Final Products exceed 60 days worth of Products based on its average daily Product purchases within the last six months prior to the Support End Date. DSM’s purchase of the Final Products will be Supplier’s sole and exclusive remedy for any termination of this Agreement.

Professionalism and Compliance. Each party represents and agrees that it and its Staff, and the Products, Services, and/or Software provided by such party, will comply with all applicable international, federal, provincial, state and local laws, rules and regulations applicable to this Agreement and the products and services provided hereunder including, without limitation, the U.S. Foreign Corrupt Practices Act, antitrust laws, local employee health and safety laws, and any applicable trade restrictions, export controls, and anti-boycott laws and regulations. Each party further represents that it will not pay, offer, promise to pay, or authorize payment of any bribe or other unlawful benefit or remuneration to any government official, political party official, candidate for office, or representative of any public international organization to obtain or retain businesses or to secure any improper advantage. This includes without limitation any payment, offer, benefit, solicitation, or remuneration which is unlawful under the laws of the United States, a treaty to which the U.S. is a party, or the Supplier’s country of operation.

No Governmental Investigations, EEO/AA Notice. Supplier certifies that it is not and has not been subject to any investigation, prosecution, litigation, conviction, assessment or finding of liability by any governmental authority involving the design, manufacture, import, or export of any products, materials or software; the unlawful treatment or employment of employees including without limitation any children; or any other law, regulation or treaty which is materially related to the Supplier’s obligations under this Agreement. DSM is an affirmative action and equal opportunity employer. Supplier agrees to comply with the provisions of Executive Order 11246 as amended, 41 C.F.R. §60-741 (Disabled Persons) and § 60-250 (Veterans), and all relevant rules, regulations, and orders of the U.S. Secretary of Labor. Supplier represents and certifies that neither Supplier, nor its owner(s), directors, officers, employees, Staff, or any subcontractor retained by them is subject to sanctions under either the U.S. Medicare or Medicaid program, or is disbarred, excluded, suspended, or otherwise excluded from or determined to be ineligible to participate in any U.S. agency or program. Supplier will promptly notify DSM of any government investigation in which it becomes involved.

Export & Import of Products. Supplier and its Staff will comply with all export control laws. Supplier will be the importer and exporter of record and/or prepare all customs filings for any such importation or exportation. Supplier will be responsible for all duties, taxes, tariffs, and fees as well as proper filing of country of origin, U.S. and all other country’s customs documents and reports associated with the import and export of the Products in and from the U.S. and country of origin (or any other country). Supplier will be listed as the consignee on any documents, and only Supplier should be listed as “in care of” party for import into the United States.

Confidentiality. The parties may share with each other non-public and/or proprietary information (“Confidential Information”). Each party agrees not to disclose Confidential Information to third parties except as allowed herein, will use reasonable efforts to keep such Confidential Information confidential, and will not use the other party’s Confidential Information for its benefit or the benefit of any third party. The receiving party will disclose Confidential Information only to its and its related party’s personnel and agents involved in the relationship, will advise them of the obligations herein, and will be responsible for any breach by them. If the receiving party is compelled by law to disclose any Confidential Information, it will use reasonable efforts to give the disclosing party prior notice and an opportunity to contest or limit such disclosure. Information must be marked “Confidential,” “Proprietary” or the like to be covered hereunder; information exchanged verbally must be promptly summarized in writing and marked as “Confidential” to be covered hereunder. Notwithstanding anything contained herein, the parties acknowledge and agree that all of the following information is considered Confidential Information of DSM whether or not marked as confidential: Product Supplements and feature guidelines, the fact that Supplier is manufacturing the Product for DSM, all information about DSM’s and its customers’ orders for Products, the Works, and all non-public financial and personnel information about DSM and DSM’s customers. Confidential Information does not include information to the extent it becomes available to the receiving party from any source (including its independent development) other than the disclosing party without, to the receiving party’s knowledge, violation by anyone of any obligation to the disclosing party. Except for trade secrets which shall not be used by the receiving party for so long as they are eligible for protection by the Uniform Trade Secret Act as adopted by the State of Wisconsin, the parties’ obligations related to each item of Confidential Information shall survive for the shorter of three years following the end of the parties’ relationship with respect to this Agreement or until such time as such item of Confidential Information becomes generally available to the public through no fault of the receiving party. Upon request from the disclosing party, the receiving party will return or destroy all Confidential Information or materials containing or reflecting Confidential Information (except that one set may be kept if necessary for compliance purposes).

Protected Health Information. DSM’s customers may share with DSM Protected Health Information (“PHI,” defined below) about their patients and residents. Should DSM be required to share such PHI with another party, such party must protect its privacy and security in compliance with applicable provisions of the Health Insurance Portability and Accountability Act of 1996, (“HIPAA”) and its accompanying regulations (the “Privacy Rule” and the “Security Rule”), and other applicable laws. The purpose of this Section is to satisfy relevant requirements of the Privacy Rule and the Security Rule and their accompanying regulations, as amended from time to time. “PHI” means information in any form or medium, shared by DSM or a DSM Customer with supplier or its Staff that: (a) relates to the physical or mental health, treatment or condition of a person, the provision of health care to a person, or payment for the provision of health care to a person; and which (b) identifies the person or for which there is a reasonable basis to believe could be used to identify the person. “Electronic Protected Health Information,” or “ePHI,” is a subset of PHI and means PHI that is transmitted by or maintained in electronic media. Supplier agrees that: (a) it may only use PHI for the purpose for which it was provided and for its internal business administration and operations; (b) it may only disclose it to a third party if authorized by the DSM Customer or DSM or as required by law; (c) it will use or disclose PHI only in the minimum amount and to the minimum number of persons necessary to achieve the permitted purpose of the use or disclosure; (d) it will use appropriate safeguards to prevent other uses or disclosures of PHI; (e) it will promptly report to DSM any non-permitted use or disclosure of PHI of which it or its Staff becomes aware; (f) it will promptly mitigate, to the extent practicable, any harmful effect that is known to it arising from a non-permitted use or disclosure of PHI by it; (g) at the written request of DSM or a DSM Customer, it will provide access to PHI in accordance with 45 CFR 164.524; (h) it will make its internal practices, books and records relating to the use and disclosure of PHI available to DSM or DSM’s Customer for purposes of determining the customer’s compliance with the Privacy Rule or the Security Rule; (i) it will develop, maintain, and use reasonable and appropriate safeguards to protect the confidentiality, integrity and availability of ePHI that it creates, receives, maintains or transmits on behalf of DSM or a DSM Customer; (j) it will report to DSM any attempted or successful unauthorized access, use, disclosure, modification or destruction of ePHI or interference with its system operations in its information systems, of which it become aware; (k) it will ensure that any third parties to whom it provides PHI agree to the same restrictions and obligations with respect to PHI as it has agreed to hereunder; and (l) at DSM or a DSM Customer’s request, it will return or destroy all PHI, and certify the same in writing.

Medical Device Information. Some or all of the Products are medical devices as that term is used by the U.S. Food & Drug Administration (“FDA”) under the Safe Medical Device Act and U.S. Food, Drug & Cosmetics Act (collectively the “Acts”). Specific FDA requirements for Products (e.g. 510k submission) will be further described in the applicable Supplement for each Product(s). Unless provided otherwise below or in a Supplement for an applicable Product, we are solely a distributor of the Products and are not the Specification Developer, Initial Importer, Contract Manufacturer, or Repackager/Relabeler (as those terms are defined in the Acts). As the Product Manufacturer, you agree to: (i) Comply with all relevant laws and regulations relating to the specification, manufacture, importation and initial sale of the Products, including but not limited to relevant FDA laws and regulations; (ii) Maintain all applicable FDA registrations and listings throughout the term of this Agreement; (iii) Ensure, if and to the extent any Products are or become regulated under the Acts, the Products are not and will not become adulterated or misbranded; (iv) Implement, follow, and provide certification of all Good Manufacturing Practices (“GMP”s) to the extent applicable to any Products; (v) Maintain compliance with all post-sale requirements of the Act, including but not limited to Medical Device Reporting (21 CFR Part 803), Medical Devices; Reports of Corrections and Removals (21 CFR Part 806), and those record-keeping requirements set forth in the Act; and (vi) Obtain and maintain tests from a recognized third-party laboratory which support all Product claims, including but not limited to flammability, Underwriters Laboratory (UL) certifications, and ETL listings; (vii) Obtain and maintain all state-specific licenses and/or registrations required for the manufacture and/or sale of the Product. Upon our request, you agree to provide us with documentation evidencing your compliance with these requirements. Additionally, you agree to promptly notify us of any breach of these requirements.

Quality Program. Supplier will manufacture quality Products consistent with specifications, legal requirements, and meeting or exceeding industry standards. Supplier has both quality control and assurance programs in place. and is ISO 9001 (or equivalent) certified or has received an exemption from this requirement from DSM’s Quality Manager. Supplier acknowledges that it has received a copy of DSM’s Supplier Quality Manual which is incorporated into this Agreement by reference and agrees to follow and abide by the Supplier Quality Manual in addition to its other obligations under this Agreement and at law.

Professional Staff, Compliance, and Scope of Work. Your Staff performing Services will be appropriately trained, have customary and necessary tools with them to perform the Services, meet certain mutually agreed upon minimal qualifications, and dress in neat, clean attire wearing some form of Supplier identifying item (e.g. company shirt or cap). You agree to comply with all policies of our customers relating to visitors and vendors while on site. In the event the scope changes for a Service, you must let us know in advance (e.g., if a product cannot be calibrated and will require part replacement.)Should you choose to use any contractors or subcontractors, including without limitation dealers and/or installers, you are solely responsible for ensuring they understand their obligations under this Agreement and you retain all liability for their acts or omissions.

Ongoing Support. In the event Supplier terminates this Agreement for any reason whatsoever, Supplier agrees to provide through Direct Supply a competent, commercially reasonable, good faith supply and support program (including, without limitation, replacement parts, warranty claims, and software patches/fixes/upgrades) for any and all Products sold to our customers for at least ten (10) years following the date of termination. In the event Supplier is ceasing its operations, upon written request, you will provide us, at no cost to us, a copy of any and source code for the Products to enable us, if we elect, to maintain the Products for our customers. In addition, you will provide us direct connection to any and all manufacturers you are then utilizing to manufacturer, assemble, package, or create the Products, so that we may have access to suitable replacement parts and Products.

Miscellaneous. This Private Label Agreement together with all properly authorized addendums and amendments, and the most recent Supplements or costing file (as applicable for the particular Product, Services and/or Software affected) are the full, final, and integrated Agreement (“Agreement”) between the parties and supersede all prior contracts and understandings which relate to the subject matter of the Agreement. Notwithstanding the foregoing, this Agreement does not amend or supersede any “Approved Supplier Relationship Agreement” (or similar contract) for the Supplier’s branded products with DSM’s parent company. You may not assign or subcontract this Agreement or any right or obligation thereunder without our prior written consent. Unless stated otherwise, all payment amounts are in U.S. dollars. The Agreement shall be governed by the internal laws of the State of Wisconsin, United States, excluding its conflict of laws provisions. Any dispute or lawsuit arising under the Agreement shall be heard exclusively in the state or federal courts located within Milwaukee County, Wisconsin, United States in the English language and each party hereby consents to the personal jurisdiction of such courts. Any document required or allowed to be signed by the Agreement may be signed in counterparts and/or by facsimile or scanned (e.g. .pdf) copies. Notices may be sent by Fed Ex, UPS or DHL. Supplier agrees to send a copy of all notices to DSM to its President of Direct Supply Manufacturing, Inc. with a copy to its Deputy General Counsel at 6635 W. Champions Way, Milwaukee, WI 53223, U.S. Should any provision of the Agreement be found to be unlawful by a Court of competent jurisdiction, the offending provision(s) shall be stricken and the remaining provision(s) shall remain in full force and effect. Failure or delay by a party in the enforcement of any provision or right of this Agreement does not serve as a waiver of any breach or any waiver to any future breach. This document and changes to any document comprising the Agreement must be signed by authorized representatives of each party. Headings are for the convenience of the parties only.

Last Updated September 2021