SolAps LLC. (“SolAps” or the “Company”) conducts its business affairs with uncompromising integrity – and this is the responsibility of every member of the SolAps community including our board of directors, executives, managers, employees and business partners. Conducting our business with uncompromising integrity means acting ethically, and complying with all applicable laws and regulations of the countries in which SolAps does business or business is being conducted on behalf of SolAps. Partners often are the primary face of SolAps to the end customer, and thus in keeping with SolAps’s commitment to uncompromising integrity, SolAps expects that all channel partners, including distributors and sales agents/representatives (“Partners”), act in a manner that complies both with the letter and spirit of this Channel Partner Code of Conduct (“Code”). AVOIDING CONFLICTS OF INTEREST A conflict of interest can arise any time a Partner’s financial or other commercial or personal relationships may inappropriately influence the Partner’s ability to fairly, accurately and ethically distribute and sell SolAps products. While it is not possible to list every conceivable conflict of interest that may arise in a Partner’s course of conducting business with or on behalf of SolAps, the following is an overview of the more common conflicts of interest Partners may encounter, and is a set of guidelines for all Partners to follow. Relationships If a Partner, or someone with whom the Partner has a close relationship (an immediate family member or close companion of an employee of a Partner), has a financial, employment or other relationship with SolAps or an existing or potential SolAps competitor, customer, supplier, service provider or other business partner of SolAps, that relationship may create a conflict of interest. Partners should disclose all such relationships to SolAps so that SolAps may ensure actual conflicts of interest are avoided. Additionally, SolAps employees are prohibited (i) from holding any material financial interest, including stock or bond ownership, or any other direct financial relationship, in any outside concern such as a Partner or someone with whom the Partner has a close relationship, and (ii) engaging in activities with third parties, such as a Partner or someone with whom the Partner has a close relationship, that might interfere with their ability to devote their full attention to the business activities of SolAps without prior approval of the SolAps legal department. Gifts Providing gifts, both tangible and in the form of entertainment and meals can create conflicts of interest and may be prohibited by applicable law. SolAps employees must comply with SolAps’s Code of Business Conduct and other related SolAps policies, which strictly control when and under what circumstances SolAps employees may accept personal gifts or entertainment from existing or potential competitors, customers, suppliers, service providers or business partners. In general, Partners may not provide gifts, including entertainment and services, to SolAps employees unless such gifts are (a) of nominal value; or (b) customary and reasonable meals and entertainment at which the giver is present. Partners must exercise extreme caution when considering whether to provide gifts to potential end customers. Like SolAps, many end customers have polices regulating when and under what circumstances their employees may accept gifts
from potential or actual suppliers in order to prevent conflicts of interest. SolAps expects all Partners to support end customer internal policies pertaining to gifts. With this in mind, gifts may be given to end customers or end customer employees only when permitted by end customer internal policies and only if they are (a) of nominal value; or (b) customary and reasonable meals and entertainment at which the giver is present. Additionally, most countries have laws and regulations restricting gifts that may be given to government employees, including employees of government-owned or partially-owned entities. For example, the United States Foreign Corrupt Practices Act (“FCPA”) provides for severe penalties for companies and individuals who engage in direct or indirect bribery of government officials. Many countries have similar laws and extend anti-bribery restrictions to the private sector. SolAps expects all Partners to strictly abide by all such laws and regulations, including the FCPA. Absolutely no gifts of any kind may be offered to any U.S. government employee. U.S. government employees include all employees of government agencies and units in the U.S., whether federal, state or local. Likewise, no gifts or anything of value may be offered to any private company corporate officer, director or employee or its representative, or any non-US government employee, including employees of government-owned or partially government-owned entities, for the purpose of obtaining or retaining business or as an inducement or reward for favorable action or forbearance from action or the exercise of influence. Partners may only offer gifts when permitted by applicable laws, including the FCPA, and such gifts (a) are of nominal value; or (b) are customary and reasonable meals and entertainment at which the giver is present. Bribes and Kickbacks Bribes or other means of obtaining undue or improper advantage shall not be offered or accepted by Partners. This includes, but is not limited to, bribes or other inducements given for the purposes of: • influencing a customer decision • obtaining an improper advantage over a competitor for a contract or order • changing the specifications of a third party’s request for proposal to benefit SolAps or position SolAps products • obtaining confidential or other restricted information • obtaining discounts or other financial benefits from SolAps. The use of bribes, secret compensation or kickbacks is improper and may result in immediate termination of the Partner’s relationship with SolAps, and appropriate legal action. ENGAGING IN FAIR, HONEST AND ACCURATE BUSINESS PRACTICES Fair Competition SolAps seeks to outperform its competition fairly and honestly and seeks competitive advantages through superior performance and service to its customers, not unethical or illegal business practices. Partners always should deal fairly and honestly with their customers, suppliers, and competitors. SolAps strictly prohibits any and all forms of corruption, extortion and embezzlement. Partners must not take unfair advantage of SolAps or anyone else through abuse of privileged or proprietary information, misrepresentation of material facts or any other unfair or dishonest practices. Partners shall not enter into any agreement, understanding or plan (written or oral) with any of its competitors with regard to price, terms or conditions of sale, production, distribution, territories or customers, or exchange or discuss with any of its competitors pricing, marketing plans, manufacturing costs or other competitive information. Partner shall comply with all antirust laws applicable to their business activities. SolAps products are sold based on the Company’s reputation for superior products and service. All claims made about SolAps products and competitors’ products should be accurate and supportable. Marketing, sales and advertising activities must always be truthful. SolAps does not permit advertising or promotions for its products and services to be false or misleading. Partners should not make a substantive claim about a SolAps product or service, or a competitor’s product or service, that has not been properly substantiated. Similarly, Partners should be alert to any situation where a competitor may be attempting to mislead customers, or potential customers, about SolAps products or services. Partners should contact SolAps’s legal department immediately if they become aware of any such dishonest or questionable business practices engaged in by SolAps competitors. Supporting SolAps’s Reputation and Image SolAps maintains an image of unwavering integrity and respect for others. The Company understands the importance of building good business relationships, and that part of creating trust and confidence with customers, suppliers and business constituents involves some level of socialization. SolAps asks that when engaging in social interactions as a representative of the Company, or engaging in social activities with SolAps employees, Partners do so in a tasteful and respectable manner. Accuracy of Reports, Records and Accounts All Partners’ records and books of account shall at all times meet the highest standards and accurately reflect the true nature of the transactions they record. Confidential Information and Intellectual Property Rights Partners must maintain the confidentiality of information entrusted to them by SolAps and its end customers and suppliers, except when disclosure is authorized or legally mandated. Confidential information includes all non-public information, including information that might be of use to competitors, or harmful to the Company or its customers and suppliers if disclosed. Partners must not disclose proprietary or confidential information about SolAps or its employees, or confidential information about an end customer, supplier or distributor, to anyone who is not authorized to receive it, or has no need to know the information (even other SolAps employees). The only exceptions to this standard are when such disclosure is authorized by the end customer, supplier or distributor, or by applicable law, appropriate legal process (i.e. subpoena) or appropriate SolAps authorities. If a Partner must disclose confidential information to a third party, they should ensure that appropriate protections, such as a non-disclosure agreement, have been put in place prior to the disclosure. Partners are to respect SolAps and other third party intellectual property rights at all times. Partners also are expected to comply with all pertinent data privacy laws and regulations, and SolAps’s own privacy practices. Insider Trading and Investments Insider trading is prohibited by law and SolAps policy. Insider trading occurs when an individual with material, non-public information trades securities or communicates such information to others who trade. The person who trades or “tips” information violates the law if he or she has a duty or relationship of trust and confidence not to use the information. Trading or helping others trade while aware of inside information has serious legal consequences, even if the insider does not receive any personal financial benefit. Insiders may also have an obligation to take appropriate steps to prevent insider trading by others. SolAps expects all Partners will strictly observe all applicable insider trading laws and regulations. COMPLYING WITH LEGAL AND REGULATORY STANDARDS Partners and their employees are required to strictly observe all applicable laws and regulations. Violations of law by even one Partner can harm SolAps’s reputation and ability to carry on business. Partners should require that all their employees are familiar with the basic legal requirements that pertain to their duties and responsibilities. Antitrust Compliance In many countries, companies are subject to complex laws and regulations (known in some countries as “antitrust” laws) designed to preserve competition among enterprises and to protect consumers from unfair business arrangements and practices. Partners are expected to comply with these laws at all times. Tied Business Dealings “Tying” arrangements, whereby customers are required to purchase or provide one product or service as a condition for another being made available, are unlawful in certain instances. Partners should understand and comply with the “tying” regulations in their jurisdiction. Anti-boycott Laws United States laws, and the laws of many other countries, prohibit persons from taking actions or entering into agreements that have the effect of furthering any unsanctioned boycott of a country. SolAps Partners are required to comply with all anti-boycott laws applicable in their jurisdiction. Embargoes and Sanctions SolAps complies fully with international economic sanctions and embargoes restricting persons, corporations and foreign subsidiaries from doing business with certain countries, groups and individuals. Economic sanctions prohibit or restrict doing business with targeted governments and organizations, as well as individuals and entities that act on their behalf. Sanction prohibitions also may restrict investment in a targeted country, as well as trading in certain goods, technology and services with a targeted country. SolAps Partners are required to comply with all economic sanctions and embargoes applicable in their jurisdiction. COMPLYING WITH LABOR LAWS, RULES AND REGULATIONS Partners are expected to comply with all applicable labor laws, rules and regulations. SolAps’s commitment to integrity is supported by diverse, productive work environments that are free from unlawful discrimination or harassment. Partners must not support or use any forms of forced, compulsory or child labor, and must be committed to a workplace free of harassment and unlawful discrimination. Partners shall not engage in discrimination based on race, color, age, gender, sexual orientation, ethnicity, disability, pregnancy, religion, political affiliation, union membership or marital status in hiring or other employment practices such as promotions, rewards and access to training or other growth opportunities. Open communication and direct engagement between workers and management are the most effective ways to resolve workplace issues. Partners should respect the rights of workers to associate freely. Partner’s employees shall be able to communicate openly with management regarding working conditions without fear of reprisal, intimidation or harassment. HEALTH AND SAFETY Partners must provide their employees with safe workplaces that meet, at a minimum, applicable country/regional laws and regulations and protect employees’ health and well being. ENVIRONMENTAL COMPLIANCE Partners are expected to comply with applicable environmental laws and regulations, including air, water, and land use and disposal regulations. RAISING AND REPORTING CONCERNS Any Partner which suspects or has a concern regarding a possible violation of this Code by any person or party, or of any violation by a SolAps employee of SolAps’s Code of Business Conduct, should bring its concerns to the attention of any of the following: § General Counsel 20250 Century Boulevard, 5th Floor, Germantown, MD 20874 Tel: (301) 353-1550 SolAps Confidential 5 Doc #10139520-076 Rev 004 CHANNEL PARTNER CODE OF CONDUCT § Chief Financial Officer 430 N. McCarthy Boulevard, Milpitas, CA 95035 Tel: (408) 404-3636 Toll-free Ethics Hotline Service In addition to the contacts above, concerns may be reported through the SolAps tollfree ethics hotline which is managed by a third party provider, The Network. More information about The Network is available on their website at http://SolApshotline.tnwreports.com/. Toll free numbers for over 30 countries and territories are listed in Annex A. This service is available 24 hours a day, 7 days a week. Specially trained interviewers will document concerns and provide a report to the appropriate contacts within the Company. Callers do not have to provide their identity. English and Spanish speaking interview specialists are always available. In addition, interview specialists have translators available to enable reports to be provided in more than 150 additional languages. Information provided to the hotline by callers located outside of the United States will be transmitted to the U.S. in a manner consistent with applicable data privacy regulations. SolAps will not retaliate or threaten to retaliate against any Partner who in good faith reports concerns or a possible violation of this Code or who participates in or cooperates with any investigation by the Company or any law enforcement agency, whether or not it is determined that an actual violation has occurred. Reports will be kept as confidential as possible under the circumstances presented and the Company’s obligations under applicable law. CONCLUSION It is and always will be SolAps’s intent to operate within the highest standards of ethics and integrity. This Code was developed to articulate and reinforce these values and to ensure that they are clear to all SolAps Partners. The Company appreciates each Partner’s commitment to apply these ethical standards and behaviors in all its dealings with and on behalf of SolAps, and trusts that all Partners will consistently reinforce the Company’s reputation for uncompromising integrity.
These terms and conditions of sale (“Agreement”) are applicable to any order placed with and accepted by Us (referred to herein as “Supplier”):
1. SCOPE OF AGREEMENT. Supplier, upon acceptance of an Order placed by Buyer, will supply the products and services specified in the Order (the “Work”) to Buyer, pursuant to the terms and conditions of this Agreement and its exhibits and Supplier’s acceptance of such order submitted by Buyer is expressly limited to the terms and conditions of this Agreement notwithstanding any contrary provision contained in Buyer’s purchase orders, invoices, acknowledgements or other documents. The details of the Work (e.g. quantity, price, and product specifications) shall be set forth in the relevant Order.
2. PRICE AND TERMS. (a) The prices payable by Buyer for goods and services to be supplied by Supplier under this Agreement will be specified in the applicable Order. Unless otherwise expressly stated in an Order, all prices exclude shipping and taxes. (b) Payment terms are net thirty (30) calendar days from the date of the invoice. If Buyer does not pay an invoiced amount within terms, Buyer will in addition pay finance charges of one and one-half percent (1.5%) per month on the late balance and Supplier reserves the right to (1) withhold shipment of the Work until full payment is made; and/or (2) revoke any credit extended to Buyer. In the event that Buyer’s account is more than ninety (90) days in arrears, Buyer shall reimburse Supplier for the reasonable costs, including attorneys fees, of collecting such amounts from Buyer. In the event of any dispute regarding an invoice, no finance charges will apply in the event that Buyer provides written notice of the dispute prior to the due date for such payment. (c) Upon reasonable request by the Supplier, Buyer shall provide copies of its most recent audited financial statements or other reasonable evidence of its financial capacity and such other information as Supplier reasonable requests to determine credit status or credits limits. (d) Buyer shall provide notice within five (5) business days of the occurrence of any event which materially affects Buyer’s ability to perform its obligations under this Agreement including but not limited to: (i) the material default of any supplier or sub-contractor; (ii) labor strike or dispute; or (iii) material uncured default with respect to any debt obligations of Buyer. (e) Pricing schedules (whether attached to this Agreement or an Order) are subject to change upon a change in the price of applicable raw materials (as reflected on a recognized trade or commodity pricing tracker) in excess of five percent (5%) from the date of such schedule. (f) Unless otherwise specified in the Order, Work will be delivered FOB Supplier’s manufacturing facility and will be shipped to Buyer via carriers selected by Supplier.
3. BUYER MATERIALS AND DATA. (a) Buyer represents and warrants that any matter it furnishes for performance of services by Supplier (i) does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party. (b) Buyer warrants that it has the right to use and to have Supplier use on behalf of Buyer any data provided to Supplier or its Affiliates by Buyer including specifically customer names, identifying information, addresses and other contact information and related personal information (“Data”). Buyer further warrants that it will designate on the applicable Order if Data provided pursuant to that Order is subject to HIPAA, Gramm-Leach-Bliley or other statutes providing enhanced data protection or requiring enhanced data security procedures.
4. INVENTORY. In the event any inventory is maintained by the Supplier on behalf of Buyer, the applicable Addendum(s) (Addendum 1 and/or Addendum 2) incorporated herein shall apply.
5. INTELLECTUAL PROPERTY. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Buyer as of the date of the Order or made or conceived by employees of Buyer during the Term of the Order shall be and remain the sole and exclusive property of Buyer provided that Buyer grants to Supplier a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Supplier as reasonably necessary to perform any Order. Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information embodying proprietary data existing and owned by Supplier as of the date of the Order or made or conceived by employees, consultants, representatives or agents of Supplier during the term of this Agreement shall be and remain the sole and exclusive property of Supplier. Without limiting the generality of the foregoing, the parties agree that Supplier will own systems (including all web source code) related to the Services provided hereunder, including all modifications, upgrades and enhancements thereto made during the term of the Order. Without limiting the generality of the foregoing, Buyer acknowledges and agrees that Supplier is in the business of developing customized print and e-commerce solutions, and the provision of print and fulfillment order services, and that Supplier shall have the right to provide to third parties services which are the same or similar to the services provided herein and to use or otherwise exploit any Supplier materials in providing such services.
6. CONFIDENTIAL INFORMATION. Any information that parties receive or otherwise have access to incidental to or in connection with this Agreement (collectively, the “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the Receiving Party at the time it was first disclosed by the Disclosing Party; (ii) was in the public domain at the time it was disclosed to the Receiving Party; (iii) enters the public domain through sources independent of the Receiving Party and through no breach of this provision by the Receiving Party; (iv) is made available by the Disclosing Party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality to the Disclosing Party; or (vi) was at any time developed by the Receiving Party independently of any disclosure by the Disclosing Party. Confidential Information may be used to the extent necessary to perform this Agreement and the parties shall not disclose Confidential Information to any third party, except to its agents (who have executed confidentiality agreements containing terms substantially similar to the terms) as necessary to provide the Work hereunder. In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Supplier and Buyer, and in no event shall Supplier acquire and right, title, or interest in and to any materials or information provided to it by Buyer.
7. INDEMNIFICATION. The indemnifying party, as Indemnitor, shall indemnify, defend and hold harmless the indemnified party, as Indemnitee, its officers, directors, employees, agents, subsidiaries, and other affiliates from and against any and all claims, damages, liabilities, and expenses (including attorney fees) arising from any third-party claim based on Indemnitor’s (or its agent’s) breach of any representation, warranty, covenant, agreement, or obligation under the Order or this Agreement , or Indemnitor’s (or its agent’s) grossly negligent and/or willful acts in carrying out its obligations under the Order or the Agreement, provided that in no event shall Supplier be responsible for any claims arising out of its compliance with instructions, requirements, or specifications provided by or required by Buyer (including the use of information, artwork, logos, and/or trademarks provided by Buyer). Neither party will be responsible for indemnifying another party hereto where the basis of the indemnity claim arises out of such other party’s own negligence or willful misconduct. In order to avail itself of this indemnity provision, Indemnitee shall promptly provide notice to Indemnitor of any such claim, tender the defense of the claim to Indemnitor, and cooperate with Indemnitor in the defense of the claim. Indemnitor shall not be liable for any cost, expense, or compromise incurred or made by Indemnitee in any legal action without the Indemnitor’s prior written consent.
8. BREACH. In addition to all other rights to which a party is entitled under this Agreement, if either party breaches any term of the Order or the Agreement, the non-breaching party shall have the right to: (a) terminate the Order immediately upon written notice to the other party; and (b) seek to obtain injunctive relief to prevent such breach or to otherwise enforce the terms of this Agreement. Failure to properly demand compliance or performance of any term of the Order or this Agreement shall not constitute a waiver of Supplier’s rights hereunder and prior to any claim for damages being made for non-conformance or breach, Buyer shall provide Supplier with reasonable notice of any alleged deficiencies in the Work or performance under the Order or this Agreement and Supplier shall have a reasonable opportunity to cure any such alleged non-conformance or breach.
9. WARRANTY. Supplier warrants that the Work shall reasonably conform to specifications in all material respects. If applicable and at Supplier’s option, Supplier may provide Buyer with an on-line printing proof for Buyer approval. If a proof has been provided, once Buyer approves a proof, Buyer will be liable for all fees associated with the order, as specified in the Order. If Buyer supplies Supplier stock or items for imprinting as part of the Order, Supplier is not responsible for issues related to the quality of the stock or items for imprinting. Supplier will not provide refunds for any Work conforming to specifications in all material respects. Other than the warranties set forth in this section, Supplier makes no warranty of any kind, expressed or implied or otherwise whatsoever, that the services performed or any items produced will be merchantable or fit for any particular purpose or use. In the event of any breach of any warranty specified in this provision, Buyer’s exclusive remedy shall be that Supplier shall, at its option, repair or replace any defective goods at no cost to Buyer or refund any purchase price paid for such Work.
10. LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND VENDOR’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND THE ORDER SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.
11. NOTICE. Any notice sent pursuant to the Order or this Agreement shall be sent by certified mail, return receipt requested, or by overnight mail to the addresses on the Order or to such address as either party may in the future designate. A copy of any notice to Supplier shall be also sent to General Counsel, 1725 Roe Crest Drive, North Mankato, Minnesota 56003 together with a copy this Agreement. Notices shall be effective upon receipt.
12. ASSIGNMENT. Except as otherwise provided, the Order and this Agreement shall be binding upon and inure to the benefit of the parties’ successors and lawful assigns.
13. STATUS. Buyer and Supplier are separate entities. Nothing in the Order or this Agreement shall be construed as creating an employer-employee or joint venture relationship.
14. COMPLIANCE WITH LAW. Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.
15. GOVERNING LAW. The Order and this Agreement shall be governed by the laws of the State of Ohio, without reference to conflicts of law principles. Any legal suit, action or proceeding arising out of or relating to the Order or these this Agreement shall be commenced in a federal court in Ohio or in state court in the County of Lucas, Ohio, and the appellate courts thereof, and each party hereto irrevocably submits to the exclusive jurisdiction and venue of any such court in any such suit, action or proceeding. With respect to any litigation arising out of the Order or this Agreement, the parties expressly waive any right they may have to a jury trial and agree that any such litigation shall be tried by a judge without a jury and the prevailing party shall be entitled to recover its expenses, including reasonable attorney’s fees, from the other party.
16. FORCE MAJEURE. Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, or any cause beyond such party’s commercially reasonable control.
17. SURVIVAL. In the event any provision of the Order or this Agreement is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Order or this Agreement will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver, waiver of jury trial and provisions which by their terms extend beyond the Term shall survive the termination of the Order and this Agreement.