Standard Terms and Conditions of Sale

These terms and conditions represent a part of the Contract under which Enamel Pure, Inc. a Deleware Corporation with a primary place of business at 17 Briden St., Worcester, MA 01605 (“Seller”) agrees to provide to Buyer the Products identified in the executed supply agreement to which these terms are annexed, in the Buyer’s purchase orders or as otherwise requested by Buyer. Seller’s provision of the Products is conditioned on the Buyer’s agreement that any terms different from or in addition to those in this Contract, whether communicated orally or contained in any purchase order, request, confirmation, payment, or other written correspondence, irrespective of timing, shall not form a part of the Contract, even if Buyer purports to condition its acceptance of any purchase order on Seller’s agreement to such different or additional terms. Notwithstanding the foregoing, if any term or condition contained in this Contract conflicts or is inconsistent with the terms and conditions contained in an authorized, signed supply agreement or other definitive sales agreement which is in place at the time of shipment of the Products the terms and conditions contained in the supply agreement or other definitive sales agreement shall prevail over any conflicting or inconsistent terms herein.

1. Inspection of Product.

FAILURE TO GIVE NOTICE OF A CLAIM WITHIN THIRTY (30) DAYS FROM DATE OF DELIVERY, OR THE DATE FIXED FOR DELIVERY (IN CASE OF NONDELIVERY) SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS IN RESPECT OF SUCH PRODUCTS. PRODUCTS SHALL NOT BE RETURNED TO SELLER WITHOUT SELLER’S PRIOR WRITTEN PERMISSION, WHICH PERMISSION SHALL NOT BE UNREASONABLY CONDITIONED, DELAYED OR DENIED. NO CHARGE OR EXPENSE INCIDENT TO ANY CLAIMS WILL BE ALLOWED UNLESS APPROVED BY AN AUTHORIZED REPRESENTATIVE OF SELLER BUT SUCH APPROVAL SHALL NOT BE UNREASONABLY CONDITIONED, DELAYED OR DENIED, AND SHALL BE BASED UPON THE TERMS OF THIS AGREEMENT. IN ADDITION, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR MULTIPLIED DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVISION OF ANY PRODUCTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE AND AGREE NOT TO ASSERT NON-CONTRACTUAL CLAIMS ARISING UNDER STATE LAW RELATING TO THIS AGREEMENT OR THE PROVISION OF ANY PRODUCTS COVERED BY THIS AGREEMENT, AND THIS AGREEMENT SHALL BE DEEMED TO INCLUDE SUCH LANGUAGE AS MAY BE REQUIRED TO EFFECT SUCH WAIVER. WAIVER BY EITHER PARTY OF ANY DEFAULT BY THE OTHER HEREUNDER SHALL NOT BE DEEMED A WAIVER BY SUCH PARTY OF ANY DEFAULT BY THE OTHER WHICH MAY THEREAFTER OCCUR.

2. Force Majeure.

No liability shall result from delay in performance or nonperformance, directly or indirectly caused by circumstances beyond the control of the party affected, including, but not limited to, act of God, fire, explosion, flood, war, act of or authorized by any Government, labor trouble or shortage, pandemic, inability to obtain material, equipment, or transportation, failure to obtain or hardship in obtaining reasonably priced supplies of materials, or failure of usual transportation mode. Quantities so affected may be eliminated from this Agreement without liability, but this Agreement shall remain otherwise unaffected. Seller shall have no obligation to purchase supplies of the Products specified herein to enable it to perform this Agreement.

3. Seller Inability to Supply.

If for any reason including but not limited to force majeure Seller is unable to supply the total demand for Products specified herein, Seller may distribute its available supply among any or all purchasers, as well as departments and divisions of Seller, on such basis as it may deem fair and practical, without liability for any failure of performance which may result therefrom.

4. Technical Assistance and Information.

Seller may furnish such technical assistance and information as it has available with respect to the use of the Products covered by this Agreement. Unless otherwise agreed in writing, all such information will be provided without charge. Buyer agrees to evaluate such information, to make an independent decision regarding the suitability of such information and Products for Buyer’s application, and only use such Products and information pursuant to the then current good product stewardship principles and all regulatory requirements applicable to Buyer’s business.

5. Buyer Acknowledgements and Responsibilities.

Buyer acknowledges that it has received and is familiar with Seller’s labeling and literature concerning the Products and their properties. Buyer will forward such information to its employees, contractors and customers who may distribute, handle, process, sell, or use such Products, and advise such parties to familiarize themselves with such information. Buyer agrees that Products sold hereunder will not knowingly be resold or given in sample form to persons using or proposing to use the Products for purposes contrary to recommendations given by Seller or prohibited by law, but will be sold or given as samples only to persons who can handle, use and dispose of the Products safely. Buyer agrees to comply with all applicable laws, regulations and ordinances including all applicable export and import laws. To the extent Seller exports the Products the following Destination Control Statement applies: “These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. Government or as otherwise authorized by U.S. law and regulations.”

6. Confidential Information.

a. Each Party, as a recipient of the other Party’s Confidential Information, understands and agrees that it will not, for itself or in conjunction with others, test, modify, manipulate, research, reverse engineer or replicate the disclosing Party’s Confidential Information in an effort to understand the disclosing Party’s proprietary technology or learn information not explicitly stated in the disclosing Party’s Confidential Information, except as strictly required for performance under any agreement between the parties that incorporates the terms and conditions of this Contract. Any such understanding of the disclosing Party’s proprietary technology not explicitly stated in the disclosing Party’s Confidential Information shall be treated as the disclosing Party’s Confidential Information under this Contract.

b. Unless otherwise agreed upon between the parties hereto, the recipient Party agrees that it will not use the disclosing Party’s Confidential Information, or any improvement or other modification of the disclosing Party’s Confidential Information, or any data derived from the disclosing Party’s Confidential Information, for securing any intellectual property rights. No license or other rights to the disclosing Party’s Confidential Information or other intellectual property is granted or implied hereby. Neither party shall have the right to use the other party’s name, or any trademarks or trade names of the other party, without express advance written permission.

7. Payment of Taxes.

Buyer shall reimburse Seller for all taxes (excluding income taxes and any property or similar taxes on the raw or other materials, work in process or finished goods inventory of Products located in any of Seller’s facilities), excises or other charges which Seller may be required to pay to any Government (National, State or Local) upon the sale or transportation to Buyer of the Products sold hereunder. For jurisdictions where taxes are imposed by statute upon Buyer and for which Seller has a responsibility to collect and remit such taxes, Seller shall separately itemize the taxes on each invoice for which the taxes are applicable. In the alternative, Buyer may timely provide Seller with the required documentation to exempt the Products from the taxes or to evidence Buyer’s authority to remit the taxes directly. Seller will rely on such documentation as provided to Seller in good faith and therefore will not be responsible for such taxes. Buyer will indemnify and hold harmless Seller for any taxes assessed upon and paid by Seller following reliance upon Buyer’s documentation.

8. Terms of Payment.

Fifty percent (50%) of total payment is due from Buyer to Seller at time of order. Seller will invoice remaining fifty percent (50%) upon shipment. Subject to Seller’s credit review of Buyer (following which Seller shall inform Buyer of applicable payment terms), all payments are due within fifteen (15) days of Buyer’s receipt of an invoice. All amounts due shall be paid in U.S. dollars, unless otherwise agreed to in writing by the Parties. If payment is made by wire or other electronic funds transfer, Buyer is solely responsible for any bank or other fees charged, and will reimburse Seller for any such fees. If any payment is not made on undisputed invoices by the due date, Seller may exercise all rights and remedies available by law. Buyer shall pay for all costs (including reasonable attorneys’ fees) incurred by Seller in connection with the collection of late payments to the extent the outstanding amount was undisputed and actually remained unpaid. Each purchase order is a separate, independent transaction, and Buyer has no right of set-off against other purchase orders or other transactions with Seller. Any undisputed amounts not paid when due will accrue interest at the rate of 5% per month, or the maximum amount allowed by law, if lower. The Parties shall resolve all disputed invoices in good faith, including without limitation escalating any issues regarding disputed invoices to senior management who have the authority to resolve such disputes.

In the event Buyer fails to fulfill Seller’s terms of payment, Seller may decline to make further deliveries except upon receipt of cash or satisfactory security.

9. Alternative Dispute Resolution.

Except for undisputed, unpaid invoices owed by Buyer, Buyer and Seller agree to attempt to settle any claim or controversy arising out of this Agreement through good faith negotiations and in the spirit of mutual cooperation. Any issues that cannot be so resolved will be referred to a senior management representative from each of the Buyer and Seller who has the authority to resolve the dispute. In the event such senior management representatives cannot resolve the dispute within a period of sixty (60) days of the referral, the Buyer and Seller agree to endeavor to settle the dispute by mediation administered by the American Arbitration Association (“AAA”) under its Commercial Mediation Procedures before resorting to arbitration. The Buyer and Seller further agree that any unresolved controversy or claim arising out of or relating to this contract, or breach thereof—except for undisputed, unpaid invoices owed by Buyer—shall be settled by arbitration administered by the AAA in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.

Any such arbitration proceedings shall be conducted at the place of the principal office of the respondent in accordance with Commercial Arbitration Rules of the AAA. The dispute or controversy shall be arbitrated before a single arbitrator selected in accordance with the rules of the AAA. The arbitrator’s decision shall be final and binding upon the parties.

Each party shall bear one-half of the cost of such arbitration unless the arbitrator otherwise allocates such costs. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this Section will prevent either Party from resorting to judicial process if injunctive relief from a court is necessary to prevent serious and irreparable injury to one Party or to others.

10. Governing Law.

All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to any applicable conflicts of law provisions thereof, and the terms of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

11. Transfer of Title.

Title, liability for and risk of loss to Products sold hereunder passes to Buyer upon delivery to Buyer’s specified delivery location.

12. Severability.

Except as expressly provided herein or in the agreement of the parties to which these Standard Terms are annexed, any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.

13. Seller’s Warranty.

Buyer acknowledges, agrees and represents that it is not relying upon, and it has not been induced by, any representation, warranty, statement made by, or other information provided by Seller in connection with its decision to purchase or use any Products, other than the representations and warranties made by Seller as and only to the extent expressly provided in this Agreement. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO GOODS SOLD PURSUANT TO THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. No modification of this Agreement shall be binding upon Seller unless separately contracted in writing and executed by a duly authorized representative of Seller. No modification shall be effected by the acknowledgment or acceptance of purchase order forms stipulating different conditions.