LAST REVISED ON: JULY, 2020

1. CONTRACT. These terms and conditions of sale together with the terms set forth in the sales confirmation (these "Terms") are the only terms which govern the sale of the materials by Outlast (“Seller”) to the buyer named in the sales confirmation (“Buyer”). Seller’s acceptance of Buyer’s purchase order or commencement of performance shall not constitute acceptance of any of Buyer’s terms and conditions. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
2. DELIVERY. The materials will be delivered within a reasonable time after the receipt of Buyer’s purchase order. Delivery dates are estimated only and are subject to change upon notice from the Seller. Seller shall not be liable for any delays, loss or damage in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the materials to Seller’s location (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such materials. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the materials at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of materials to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
3. TITLE AND RISK OF LOSS. Title and risk of loss passes to Buyer upon delivery of the materials at the Delivery Point. As collateral security for the payment of the purchase price of the materials.
4. SHIPPING TERMS. Delivery shall be made FOB Delivery Port.
5. PAYMENT TERMS. Payment terms are as set forth in the sales confirmation. If no payment terms are specified in the sales confirmation or another agreement between Buyer and Seller, the net amount shall be payable within thirty (30) days after the date of Buyer’s receipt of the material.
6. WARRANTIES. Seller makes no warranties with respect to the material sold hereunder except that for a period of three months from the date of shipment of the materials (i) Seller holds and will pass marketable title to the material, and (ii) the material shall substantially conform to the commercial grade of material specified in the sales confirmation. Except as set forth in the immediately preceding sentence, Seller makes no warranties with respect to the material sold hereunder. IN ALL OTHER RESPECTS, THE MATERIAL IS SOLD “AS IS.” SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT OR ANY OTHER WARRANTIES IMPLIED BY LAW, CUSTOM, TRADE, COURSE OF DEALING OR OTHERWISE. Buyer acknowledges that it alone has determined the intended purpose and suitability of the material sold hereunder, and that any technical or other advice given by Seller is provided solely at Buyer’s risk. Further, Buyer assumes all risk of use of the material for any purpose.
7. REMEDIES FOR WARRANTY. The Seller shall not be liable for a breach of the warranty set forth in Section 6 unless (subject to Section 8(b): (i) Buyer gives written notice of the defect, reasonably described, to Seller within five (5) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such material and Buyer (if requested to do so by Seller) returns such material to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the materials are defective. Seller shall not be liable for a breach of the warranty if Buyer makes further use of the materials after giving such notice or the defect arises because Buyer failed to follow the oral and written instructions of Seller as to storage and maintenance of the materials. The sole and exclusive remedy of Buyer for a breach of warranty by Seller shall be, at Seller’s option, curing the non-conformity or replacement of the non-conforming material. All other remedies are hereby disclaimed by Buyer.
8. LIMITATIONS OF LIABILITY. The following limitations of Seller’s liability are acknowledged by the parties to be fair and reasonable and shall apply to any act or omission of Seller hereunder and to any breach by Seller of the contract; the parties acknowledge that these limitations are in addition to all other limitations set forth herein:
9. Seller’s total liability, in the aggregate, for all claims arising from or in connection with this contract shall be limited to the amount actually paid by Buyer to Seller hereunder. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
10. Every claim from any cause, including but not limited to a claim for a remedy under the warranties contained herein, shall be deemed waived by Buyer, or Buyer’s customer in the case of resale, unless delivered in writing to Seller within one (1) month from tender of delivery of the material to Buyer. The Buyer expressly waives all applicable statutes of limitations and agrees that any legal proceeding for any breach of this contract shall be waived unless filed within one (1) year after tender of delivery of the material to Buyer.
11. VARIATIONS. Weights and quantities shown hereon are estimated. Invoice weights may vary in accordance with permissible variations as are customary in the industry or as shown in Seller’s published price lists.
12. RESCHEDULING. Requests by Buyer for delivery rescheduling (either earlier or later) will be accommodated, if possible, at the sole discretion of Seller. If agreed to by Seller, a rescheduling request by Buyer that extends delivery sixty (60) days or more beyond the originally scheduled delivery date will result in a rescheduling charge equal to two percent (2%) of the total contract price for each thirty (30) day delay beyond such a sixty (60) day period, up to a maximum rescheduling delay of one hundred twenty (120) days beyond the originally scheduled delivery date. In any case where Seller does not agree to accommodate a rescheduling request, Seller may proceed to ship material to Buyer at full order value.
13. FORCE MAJEURE. Seller shall not be liable for any delay in performance, or nonperformance, due to any cause beyond the Seller’s control, including but not limited to, fires, floods, or other forces of the elements, acts of God, strikes, or labor disputes, accidents to machinery, acts of sabotage, riots, pandemics, government shutdowns, precedence of priorities granted at the request or for the benefit, directly or indirectly, of any federal, state, or provincial government or any subdivision or agency thereof, delay in transportation caused by transportation facilities, restrictions imposed by federal, state, provincial or other governmental legislation or rules or regulations thereof, or a substantial increase in Seller’s cost (each, an “FM Event”). For purposes of this contract, “a substantial increase in Seller’s cost” shall be deemed to have occurred if Seller’s performance hereunder would result in a loss to Seller on this sale, as computed under Seller’s normal accounting procedures. Upon the occurrence of any FM Event, Seller may terminate this contract in whole or in part without liability for any delay in performance, or nonperformance hereunder; provided, however, that if Seller does not terminate this contract due to the occurrence of an FM Event, Seller and Buyer shall each take such actions that are commercially reasonable under the circumstances to overcome the FM Event and to proceed with the performance of its respective obligations hereunder, including without limitation Buyer’s extension of the term of any letter of credit (or other instrument for payment of amounts due hereunder) opened by Buyer for the benefit of Seller or any of its affiliates in connection herewith.
14. TAXES AND OTHER CHARGES. Buyer will pay, or reimburse Seller if it pays, any and all taxes or tariffs or any other similar charges imposed upon this contract, the material covered hereby, or the delivery or use thereof or upon any document of title or instrument used in connection with the transaction described herein, and any and all taxes, tariffs or charges imposed upon or measured by the sales contemplated herein or the purchase price payable hereunder, in each case, including any interest and / or penalty thereon.
15. FREIGHT CHARGES. If the sale hereunder is other than FOB Delivery Port, Seller’s confirmation is based upon the freight charges in effect when Seller accepts Buyer’s order. In the event of an increase or decrease in applicable charges before the material is shipped, such a change in freight will be for Buyer’s account.
16. ALLOCATIONS. In the event of a shortage of the material, Seller, in its own discretion, may allocate the material among its customers in such manner as it shall determine, without liability for any delay in the delivery of, or failure to deliver, the material sold hereunder.
17. DEMURRAGE CHARGES. Any demurrage charges due to Buyer’s delays shall be charged to Buyer.
18. SERVICE CHARGE; COLLECTION COSTS; SET OFF. A service charge of the maximum interest allowed by law per month shall be applied to all invoices for which payment is not received by the applicable due date. If Buyer defaults in making payment of any amount due hereunder, Seller shall be entitled to recover from Buyer all costs of collection, including but not limited to, collection fees, attorney fees and court costs and. Without prejudice to any other right or remedy it may have, Seller reserves the right to set off at any time any amount owing to it by Buyer against any amount payable by Seller to Buyer under this contract or any other contract between the parties.
19. SECURITY INTEREST. Buyer hereby grants to Seller a security interest in the material sold hereunder (and all proceeds thereof) until Buyer has (a) paid the purchase price payable hereunder in full, plus accrued service charges and other amounts due hereunder, if any, and (b) fully performed all of Buyer’s other obligations hereunder. Buyer hereby acknowledges and agrees that these terms and conditions shall constitute a security agreement under the Uniform Commercial Code in effect from time to time in the State of Delaware (“UCC”) that may be enforced in any jurisdiction that Seller determines necessary or advisable to evidence, perfect, or act upon the security interest created hereby. The security interest granted under this provision constitutes a purchase money security interest under the UCC. Seller shall have all rights and remedies of a secured party under the UCC in the event of a breach or default by Buyer in any of its obligations hereunder. Buyer hereby appoints Seller as Buyer’s agent and attorney-in-fact to execute and / or file such financing statements and other documents as Seller determines necessary or advisable to evidence, perfect, or act upon the security interest created hereby without further action of Buyer.
20. COMPLIANCE WITH LAW. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this contract. Buyer shall comply with all export and import laws of all countries involved in the sale of the materials under this contract or any resale of the materials by Buyer. Buyer assumes all responsibility for shipments of materials requiring any government import clearance. Seller may terminate this contract if any governmental authority imposes anti dumping or countervailing duties or any other penalties on materials.
21. AMENDMENT; NON-WAIVER. The Terms may not be modified, altered or waived, either orally, by usage of trade, course of performance or course of dealing. Any change to, deviation from, or waiver of the Terms shall only be made pursuant to a writing signed by the party to be bound. No waiver by Seller of any of the provisions of this contract is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this contract 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 other right, remedy, power or privilege.
22. SEVERABILITY. If any term or provision of this contract is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under this contract without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this contract.
24. TERMINATION. In addition to any remedies that may be provided under these Terms, Seller may terminate this contract with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this contract and such failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
25. JURISDICTION. All disputes arising directly or indirectly hereunder or in connection herewith shall be resolved in the federal or state courts located in the State of Delaware, in the United States of America. Buyer hereby consents to the exclusive jurisdiction of the state and federal courts sitting in the State of Delaware, (b) agrees to appear in any such proceeding upon notice thereof, and (c) waives the right to assert that any action in any such court is in an improper venue or should be transferred to a more convenient forum. The losing party in any lawsuit shall pay its own and the prevailing party’s attorney’s fees, costs and expenses.
26. APPLICABLE LAW. All questions arising hereunder, in connection herewith, or in connection with a quotation or any other document submitted in connection therewith shall be interpreted and resolved in accordance with the laws of the State of Delaware (including without limitation the UCC) without regard to its conflicts of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods.
27. NOTICES. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the sales confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees prepaid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.