Installation Guide

Federal Hazardous Substances Act, each as amended by the Consumer Product Safety Improvement Act; Flammable Fabrics Act and all
applicable state flammability standards, including California's foam/upholstered furniture standards; Fair Labor Standards Act;
Magnuson-Moss Warranty-Federal Trade Commission Improvement Act; Wool Products Labeling Act; Federal Food, Drug and Cosmetics
Act and state requirements for food, drugs, medical devices and cosmetics; California Safe Drinking Water and Toxic Enforcement Act of
1986 ("Proposition 65"); California Air Resources Board and other federal, state and local regulations regarding emissions and air quality
requirements; Lacey Act of 1900; Robinson-Patman Act; Hazardous Materials Transportation Act; Solid Waste Disposal Act, including
the Resource Conservation and Recovery Act; Comprehensive Environmental Response Compensation and Liability Act; Federal
Insecticide, Fungicide, and Rodenticide Act; Toxic Substances Control Act and any state or local laws regulating or applying to the
chemical composition of the Merchandise, including but not limited to Merchandise that meets the definition of "children's products";
Marine Mammal Protection Act; Endangered Species Act; Forest and Rangeland Renewable Resources Planning Act of 1974; Federal
Water Pollution Control Act; Clean Air Act; Noise Control Act; National Environmental Policy Act; Safe Drinking Water Act; Emergency
Planning and Community Right to Know Act; Pollution Prevention Act of 1990; Montreal Protocol on Substances that Deplete the Ozone
Layer; Atomic Energy Act; Fair Packaging and Labeling Act, state Uniform Packaging and Labeling Resolutions and state weights and
measures requirements, as applicable; Textile Fiber Products Identification Act; NAFTA and any other trade agreement(s); the export and
re-export control laws of the U.S. or any other applicable jurisdiction; and any applicable industry or other voluntary standards, including
without limitation, standards promulgated by Underwriters Laboratories, National Institute of Standards and Technology, American
Society of Testing and Materials and American National Standards Institute.
6 Indemnification, Product Liability, and Disputes
6.1 Supplier will indemnify and defend HDPA (which for the purpose of Sections 6 and 7 of this SBA includes all of HDPA's affiliates,
subsidiaries, directors, officers, employees and agents) from and against any and all claims or allegations made by any person
(including those made by Supplier's directors, officers and employees) or governmental inquiry, losses, damages, suits, fees, judgments,
costs and expenses (including attorneys' fees incurred in responding to such claims), whether compensatory, exemplary, punitive,
special, consequential and/or incidental, that HDPA may suffer or incur arising or alleged to have arisen out of or in connection with (a)
any personal injury (including death) or damage to property arising out of the acts or omissions of Supplier, its employees and agents,
contractors, subcontractors and/or any other persons for whose conduct Supplier may be or is alleged to be legally responsible or from
the Merchandise or its design, manufacture, warnings, failure to warn, third party certification labeling, instructions, testing, packaging,
shipment, delivery, setup, assembly, return, display, marketing, sale, rental or use; (b) the failure of Supplier to fully comply with any
representation, guarantee, warranty or other obligation under this SBA, including the failure of Supplier to comply with all Applicable
Laws and Standards; (c) breach or alleged breach of the SBA; or (d) the infringement or alleged infringement of any patent, copyright,
trade secret design, trademark or other intellectual property right of a third party. This agreement to indemnify, defend and hold HDPA
and its affiliates harmless applies whether or not the claim or loss is alleged , by Supplier or any other person or entity, to have been
caused in whole or in part by the negligence or fault of HDPA. Further, this agreement applies even when the Supplier is not named as a
party to the lawsuit.
6.2 HDPA shall cooperate in the defense of any claim for which indemnity is sought under this Section. Although Supplier shall have
control of the defense of any action brought above, Supplier agrees to comply with the following requirements in connection with the
conduct of the defense of any claim in which HDPA has been named a party: (a) Supplier shall choose defense counsel that is
reasonably satisfactory to HDPA; and (b) Supplier shall use reasonable efforts to keep HDPA informed of all material information
pertaining to a claim. Notwithstanding the above, Supplier shall not enter into any settlement or compromise of the claim that would
result in injunctive relief, financial liability or the admission of liability by HDPA without first obtaining HDPA's prior written consent.
6.3 If HDPA determines that separate counsel is appropriate, HDPA will be entitled to retain separate counsel at Supplier's expense.
6.4 Disputes
a. Mediation. Any dispute arising out of, relating to or concerning this SBA (other than those arising under Sections 6 and 7) shall, as
a condition precedent to any arbitration or court proceeding, be mediated by the parties. The requesting party shall inform the other
party the grounds of the dispute. The parties shall mutually agree upon a mediator and shall schedule and conduct the mediation at a
mutually convenient time in Atlanta, GA. Supplier and HDPA agree to split equally the costs and expense of the mediator and the
conduct of the mediation itself.Supplier and HDPA agree that each will bear, and will not seek from the other, all of its other expenses
and costs associated with the mediation.
b. Arbitration. Any dispute which is not resolved by mediation and which arises out of, relates to or concerns this SBA (other than
those arising under Sections 6 and 7) may, at the sole option of HDPA, be resolved by arbitration administered by JAMS under its
commercial arbitration rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction
thereof. All arbitration hearings shall be conducted in Atlanta, Georgia. Each party shall bear its own costs, fees and expenses
associated with any arbitration except as otherwise provided in this SBA.
6.5 Venue. In the event HDPA does not elect to submit a dispute under this SBA to arbitration, the parties agree that any civil action to
decide such dispute shall be brought in either the US District Court for the Northern District of Georgia, Atlanta Division, or the Fulton
Superior Business Court, Georgia.
6.6 Offset and Reimbursement. All costs and expenses, including but not limited to attorney's fees, incurred by HDPA due to Supplier's
violations under any PO or this SBA will be charged to Supplier.Supplier agrees that HDPA shall have the absolute and unconditional
right, at any time and in its sole discretion, to offset or recoup any amount owing by Supplier to HDPA against any debt owing by HDPA
to Supplier (including, without limitation, claims based on defective Merchandise, delivery shortages, Supplier overcharges or other
billing errors, or any other claim relating to this SBA, including the indemnification obligations set forth in Section 6 above). HDPA may
exercise these setoff and recoupment rights by deducting any amounts owed to it by Supplier from any HDPA remittance or payment to
Supplier, or in any other manner deemed appropriate by HDPA. At HDPA's option, Supplier shall reimburse HDPA for any amount owed
by Supplier arising out of the terms of this SBA. Notwithstanding anything to the contrary, any disputes brought pursuant to this Section
6.6 shall be subject to the Mediation and Arbitration provisions set forth herein.
6.7 One Year Limitation. Supplier agrees to bring any civil action or arbitration against HDPA within one year after the occurrence of
the event giving rise to such dispute.
Invitation Type:New Vendor 12/23/20 19:44:50
SBA# 48946_1
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