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2033 Oak Industrial Dr. NE, Grand Rapids, MI 49505 www.terryberry.com
<br />REV: 08-05-26 VR
<br />18/36
<br />Terryberry, at its sole discretion and at no additional expense to Customer, shall either: (i) procure the right for Customer to
<br />continue using the Goods in accordance with the terms of this Manufacturing Agreement; or (ii) replace or modify the Goods so that
<br />such Goods become non-infringing. If Terryberry determines that neither (i) nor (ii) is available in a timely manner on commercially
<br />reasonable terms, then Terryberry may terminate Customer’s right to use the infringing Service, in which event Customer shall
<br />receive a pro-rata refund of all unused, pre-paid fees for the Goods for the period following termination as calculated on a monthly
<br />basis for the affected Goods. This Section 10.4 states the sole liability of Terryberry and the exclusive remedy of Customer with
<br />respect to any indemnification claims arising out of or related to this Manufacturing Agreement.
<br />10.5. Exclusions. The above Terryberry obligations to defend and indemnify will not apply in the event that a claim arises from or
<br />relates to: (i) Customer's marketing, advertising, promotion, or sale of any product containing the Goods; (ii) a modification of the
<br />Goods made by, or at the request or direction of, Customer; (ii) the combination of the Goods with an item, technology, software,
<br />data or intellectual property not supplied by or approved in writing by Terryberry; (iii) the use of the Goods in a manner not
<br />intended or allowed by this Manufacturing Agreement; (iv) any portion of the Goods based upon specifications provided by or on
<br />behalf of Customer; (v) Third-Party Products; or (vi) data provided or made available by or on behalf of Customer.
<br />11. LIMITATION OF LIABILITY
<br />11.1. Liability Cap. Except for liability caused by Terryberry’s intellectual property infringement indemnification obligations in Section
<br />10.1, Customer’s indemnity in Section 10.2, and Customer’s payment obligations herein, in no event will either Party’s maximum
<br />aggregate liability arising out of or related to this Manufacturing Agreement, regardless of the cause of action and whether in
<br />contract, tort (including negligence), warranty, indemnity or any other legal theory, exceed the total amount paid or payable to
<br />Terryberry under this Manufacturing Agreement during the twelve (12) month period preceding the date of initial claim. The
<br />exclusions and limitations set forth in this Section 11.1 shall apply even if an exclusive remedy of Customer under this
<br />Manufacturing Agreement has failed of its essential purpose.
<br />11.2. Consequential Damages. Neither Party or its Affiliates will have any liability to the other Party, its Affiliates, or any third party
<br />for any loss of profits or revenues, loss of goodwill, or for any indirect, special, incidental, consequential or punitive damages arising
<br />out of, or in connection with the supply, use, or performance of, or inability to use, the Goods or arising out of or in connection with
<br />this Manufacturing Agreement, however caused, whether in contract, tort (including negligence), indemnity, breach or failure of
<br />express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise, or any other legal
<br />theory, and whether or not the Party has been advised of the possibility of such damages.
<br />11.3. ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER ASSUMES ALL RISK AND
<br />LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF
<br />OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS
<br />MADE BY TERRYBERRY, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS.
<br />11.4. Construction. This Manufacturing Agreement is not intended to and will not be construed as excluding or limiting any liability
<br />which cannot be limited or excluded by Applicable Law, including liability for (a) death or bodily injury caused by a Party’s
<br />negligence; or (b) gross negligence, willful misconduct, or fraud.
<br />12. GENERAL PROVISIONS
<br />12.1. Tooling. All Tooling used to manufacture the Goods is owned by Terryberry ("Terryberry Tooling"). Customer has no right,
<br />title, or interest in or to any of the Terryberry Tooling.
<br />12.2. Structure. Each fully-executed Order shall be deemed to incorporate by reference all of the terms and conditions of this
<br />Manufacturing Agreement and shall constitute a separate and binding contract between Terryberry or its Affiliate that is the
<br />signatory to the Order and Customer. An Affiliate of Terryberry may contract for Goods by executing a Order. In such case, a
<br />Terryberry Affiliate shall be deemed to be “Terryberry” and a “Party” for purposes of this Manufacturing Agreement. In the event
<br />there are any conflicts or any inconsistencies between the terms and conditions of the Order and the terms and conditions of this
<br />ATTY/AGR.2026.217/Terryberry (Employee Service Awards) (Page 18 of 36)
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