1. All orders for the purchase of preproduction samples of membranes (the “Product”) from Dioxide Materials, Inc. (“Company”), by the individual and/or entity (“Buyer”) identified in the Purchase Order are subject to the following terms and conditions (“Terms”):
2. Acceptance of Terms. Buyer’s acceptance of the Purchase Order affixed to these Terms constitutes Buyer’s full and unconditional acceptance of all of the terms and conditions stated herein. To the extent that any quotation, order acceptance, confirmation, invoice or other document contains conflicting, differing or additional terms from these Terms, these Terms shall control. By acceptance of the Purchase Order, Buyer agrees to be bound by, and to comply with all the terms and conditions herein and the those identified in the Purchase Order, which includes any supplements to it, and all specifications and other documents referred to in the Purchase Order.
3. Product Diversion; Intended Use. Buyer represents and warrants that all uses of Product will be for Buyer’s “own use,” which means, in particular, that Buyer will not sell, distribute, or transfer Product, whether directly or indirectly, to any class of trade (each a “Product Diversion”). Any Product Diversion shall be considered a material breach of this Purchase Contract.
4. The Products contain chemical substances not on the Toxic Substances Control Act (“TSCA”) inventory. Samples may be hazardous. Buyer represents and warrants that it will only use the samples for research and development purposes under the supervision of a technically qualified individual. Buyer further represents and warrants that it shall use generally accepted and proper safety gear when testing or using these Products, which shall include, without limitation, chemically resistant and appropriate safety equipment and glasses. Buyer uses the Product at its own risk, and is solely responsible for handling the Product in a safe and responsible manner.
5. Company shall be permitted to publish results of testing or use of the Product subject to Company’s prior written approval. Any such approved publication may be used and published by Company, and shall be sent to Company by Buyer to the following email address: publications@dioxidematerials.com
6. Delivery; Title; and Risk of Loss. Unless otherwise stated in this Purchase Order, the Company shall deliver the Goods FOB origin, and title to and risk of loss of the Goods will pass to the Buyer upon such shipment by the Company. Any stated delivery dates are approximate. The Seller will not be liable for any losses, damages, penalties, or expenses for failure to meet any delivery date.
7. Return of Product. All return requests are subject to Company’s sole discretion and prior written authorization. Return requests must be submitted to the sales representative of Company assigned to Buyer in writing and must be approved for review prior to any returns.
8. LIMITATION OF LIABILITY. THE PRODUCT IS BEING SOLD “AS IS.” TO THE EXTENT PERMISSIBLE BY APPLICABLE LAW, COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL COMPANY BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST TIME, LOST PROFITS, LOST SALES, DAMAGES FROM DELAYED OR FAILED SHIPMENT, OR THIRD PARTY CLAIMS) ARISING FROM THE PURCHASE ORDER(S), TRANSACTIONS BETWEEN BUYER AND COMPANY, NOR FROM HANDLING, USE, STORAGE METHODS, OR POSSESSION OF ITS PRODUCTS. YOU AGREE THAT, COMPANY SHALL NOT BE LIABLE FOR ANY DAMAGE CLAIMS CONNECTED WITH THE APPLICABILITY OR ACCURACY OF ANY ADVICE OR INFORMATION, WRITTEN OR ORAL, GIVEN BY COMPANY, ITS AGENTS OR EMPLOYEES. BUYER ALSO AGREES AND ACKNOWLEDGES THAT COMPANY’S TOTAL LIABILITY, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, ARISING OUT OF TRANSACTIONS WITH BUYER SHALL NOT EXCEED THE ACTUAL PRICE PAID FOR THE PRODUCTS GIVING RISE TO ACTUAL OR POTENTIAL LIABILITY.
9. INDEMNIFICATION BY BUYER. BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS, COMPANY, ITS OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS FROM AND AGAINST, ANY THIRD PARTY CLAIMS ARISING OUT OF OR ATTRIBUTABLE TO (I) ANY MISREPRESENTATION OR BREACH BY BUYER OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS HEREUNDER; AND, (II) THE HOLDING, STORAGE, ADULTERATION, HANDLING, REPACKAGING, TRANSPORTATION, DELIVERY, DISTRIBUTION, SALE OR OTHER USE OR DISPOSITION OF PRODUCT BY BUYER AND/OR ITS AFFILIATES OR AGENTS AFTER PRODUCT HAS BEEN DELIVERED TO BUYER; PROVIDED THAT COMPANY GIVES BUYER PROMPT WRITTEN NOTICE OF THE CLAIM AND REASONABLY COOPERATES WITH BUYER SHOULD BUYER CHOOSE TO ASSUME THE DEFENSE OF SUCH CLAIM. NOTWITHSTANDING THE FOREGOING, BUYER SHALL HAVE NO OBLIGATION TO DEFEND OR INDEMNIFY AGAINST CLAIMS ARISING IN CONNECTION WITH THE NEGLIGENT ACTIONS OR OMISSIONS, OR WILLFUL MISCONDUCT, OF COMPANY OR ITS AFFILIATED ENTITIES.
10. Compliance with Laws; Reporting and Disclosure Obligations. Each party shall comply with all applicable laws in connection with its performance under this Purchase Contract. Buyer represents and warrants that it will at all times be in material compliance with all applicable laws, rules and regulations, including, but not limited to, those relating to health, safety and the environment, fair labor practices, unlawful discrimination and anti-corruption and anti-bribery laws.
11. Without limiting the generality of the foregoing, Buyer shall be responsible for obtaining any licenses or authorizations from the Commerce Department’s Bureau of Industry and Security (BIS), and the Treasury Department’s Office of Foreign Assets Control (OFAC), which may be required prior to export of the Product from the United States, or re-export to a third country. Buyer agrees to comply with applicable U.S. export control laws and regulations, including the requirements of the Arms Export Control Act, 22 U.S.C. 2751- 2794; the International Traffic in Arms Regulation (ITAR), 22 C. F. R. 120 et seq.; and the Export Administration Act, 50 U.S.C. app. 2401-2420, including the Export Administration Regulations, 15 C.F.R. 730-774. Buyer shall immediately notify Company if Buyer is listed on the BIS Denied Parties List or if Buyer’s export privileges are otherwise denied, suspended or revoked in whole or in part by any U.S. or foreign government entity or agency. Failure of the US government or any other government to issue any required export or import license, or withdrawal/termination of a required export or import license by the US government or any other government, shall not relieve Buyer of its obligations hereunder.
12. Force Majeure. Company shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Company.
13. Assignment and Delegation. The Buyer may not assign any of its rights under these Terms or delegate any performance under these Terms, except with the prior written consent of the Company. Any purported assignment of rights or delegation of performance in violation of this section is void.
14. Attorneys’ Fees. Should any party hereto institute any action or proceeding in court (including trial or appellate levels) or otherwise to enforce or interpret these Terms by reason of or with respect to an alleged breach of any provision hereof, the prevailing party shall be entitled to receive from the non-prevailing party such amount as the court may judge to be reasonable attorneys’ and paralegals’ fees for the services rendered to the prevailing party in such action or proceeding, plus the prevailing party’s reasonable costs and expenses therein, regardless of whether such action or proceeding is prosecuted to judgment.
15. Governing Law. These Terms shall be governed by, and construed and enforced in accordance with, the laws of the State of Florida. The exclusive forum selected for any proceeding or suit related to these Terms shall be in the state or federal courts in Palm Beach County, Florida, and the parties consent to personal jurisdiction over them. This is intended to be a mandatory, and not a permissive, forum selection provision.