Terms of Sale

THE TERMS AND CONDITIONS SET FORTH HEREIN AND THE TERMS AND CONDITIONS SET FORTH IN THE FINAL QUOTATION PROVIDED BY ZSM (COLLECTIVELY, THIS “AGREEMENT”) ARE ENTERED INTO BY AND BETWEEN THE PERSON OR ENTITY IDENTIFIED IN THE FINAL QUOTATION (“CUSTOMER”) AND ZEON SPECIALTY MATERIALS INC., A CALIFORNIA CORPORATION (“ZSM”). CUSTOMER ACCEPTS THE TERMS AND CONDITIONS SET FORTH HEREIN BY ITS WRITTEN ACCEPTANCE OF THE FINAL QUOTATION.

Customer shall be deemed to accept the terms and conditions of this Agreement in the event that Customer issues its purchase order for the Products to ZSM.

General: ZSM shall sell and deliver certain products (the “Products”) to Customer, and Customer shall purchase from ZSM such Products, in accordance with the terms and conditions of this Agreement. Any purchase order submitted by Customer is subject to acceptance or rejection by ZSM in its sole discretion. ZSM may use third parties to assist ZSM in performing its obligations under this Agreement.

Delivery, Prices, Taxes, Payment: All prices set forth in the Final Quotation do not include federal, state and local withholding, excise, sales, use and similar taxes, fees, or charges imposed by any governmental authority. Customer shall be responsible for any and all taxes levied on or with respect to the Products and shall reimburse ZSM for any such amounts. Unless otherwise stated in the Final Quotation, Payment shall be due from Customer net thirty (30) days after ZSM’s invoice, which invoice may be delivered by ZSM to Customer at any time following ZSM’s delivery of the relevant Product at the Place of Delivery. All payments shall be made to ZSM at the following address without set-off or deduction: PO Box 824939, Philadelphia, PA 19182-4939.
All past due amounts shall be subject to finance charges of 2% per month on the unpaid balance or the maximum amount allowed by law, whichever is lower, and any costs incurred by ZSM in attempting to collect any unpaid balances from Customer. Payments shall be made by Customer to ZSM by wire transfer of immediately available funds, corporate check.

Cancellation and Rescheduling: ZSM will use commercially reasonable efforts to meet the delivery date(s) specified in the Final Quotation. The parties agree to work in good faith to address all supply related matters that are outside of the commercially reasonable control of ZSM.

Title and Risk of Loss: Unless otherwise agreed separately in writing such as the final quotation between ZSM and Customer, all sales are made F.O.B. ZSM’s facility or other location designated by ZSM in the Final Quotation (the “Place of Delivery”). Title and risk of loss shall transfer to Customer upon delivery of the Products to the Place of Delivery In the event of any default by Customer under this Agreement, ZSM may decline to make further shipments of Products which shall not be deemed a breach or default by ZSM hereunder.

Notification of Shipment Errors: Customer shall notify ZSM of any rejection of product for failure to conform to this Agreement due to shipping error, giving detailed reasons for the rejection, within ten (10) business days after Customer’s receipt of such product. Failure of Customer to reject any product within that period shall constitute waiver of rejection on the grounds of shipping error. If Customer fails to notify ZSM of any material shipping errors within the ten (10) business-day period, all Products will be deemed accepted by Customer. Customer’s sole remedy and ZSM’s sole liability with respect to defective and/or nonconforming products is limited to the remedy, if any, specified in this Agreement.

ZSM’s Property - Acknowledgement of Ownership/Grant and Scope of License: Customer agrees that: all trademarks, service marks, taglines, slogans, logos, designs, product names, brand names, characters, likenesses, copyrights, trade secrets, patents, trade dress, artwork, labels, specifications and manufacturing standards and other intellectual property owned or licensed to ZSM (collectively, the “ZSM Intellectual Property”) shall remain the exclusive property of ZSM and such licensors, respectively.

Warranty: ZSM warrants to Customer only that the Products purchased from ZSM by Customer pursuant to this Agreement shall be of merchantable quality as of the date such Products are delivered to the Place of Delivery (“Date of Delivery”). Any claim by Customer that any item of such Products fails to conform to this warranty must be made within Thirty (30) calendar days after the Date of Delivery by Customer. In the event of any such claim, Customer shall give written notice to ZSM describing the alleged nonconformity and setting forth ZSM's shipment and serial numbers applicable to such Products. No Products are to be returned to ZSM by Customer under any circumstances in the absence of ZSM's specific written instructions and issuance of a return authorization. If Products purchased from ZSM are found by ZSM to fail to conform to this warranty, ZSM will, at its option, repair such Products, replace such Products or issue Customer a credit for the purchase price paid by Customer therefor. THE ABOVE WARRANTY IS THE ONLY WARRANTY MADE BY ZSM TO CUSTOMER WITH RESPECT TO PRODUCTS AND IS IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF ZSM FOR DAMAGES, INCLUDING BUT NOT LIMITED TO SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE SALE, USE OR PERFORMANCE OF PRODUCTS.

Disclaimer of Warranties: ZSM DISCLAIMS ALL OTHER WARRANTIES WITH REGARD TO PRODUCTS SOLD PURSUANT TO THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR USE. Customer is not relying upon any representation, statement or other assertion with respect to the nature or quality of Products.

Limitation of Liability: ZSM SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR FOR ANY LOSS OF BUSINESS, LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF ZSM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, INCLUDING ANY LIABILITIES THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER. ZSM’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE PRICE PAID BY CUSTOMER TO ZSM FOR THE PRODUCTS.

Compliance with Law: Customer is in compliance with and shall comply with all applicable laws, regulations and ordinances, including without limitation, all import and export laws, rules and regulations, and the U.S. foreign corrupt practices act. Customer has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. In the event the Products are subject to the export license control of the Japanese or the U.S. government, the delivery of such Products by ZSM shall be conditioned upon obtaining such export license. Customer hereby agrees to cooperate with ZSM to the extent necessary, and promptly provide any information requested by ZSM, in connection with the application by ZSM for such export license.

Indemnification: Customer shall indemnify, defend and hold harmless ZSM and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, in relation to, arising out of or resulting from any claim of a third party arising out of or occurring in connection with the products purchased from ZSM or Customer's negligence, willful misconduct or breach of this Agreement.

Confidential Information: All non-public, confidential or proprietary information of ZSM, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by ZSM to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized by ZSM in writing. Upon ZSM's request, Customer shall promptly return all documents and other materials received from ZSM. ZSM shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; (c) rightfully obtained by Customer on a non-confidential basis from a third party; or (d) independently developed by Customer without use of ZSM Confidential Information.

Force Majeure: Either party’s failure to perform the terms and conditions of this Agreement, in whole or in part, shall not be deemed a breach or a default hereunder or give rise to any liability if such failure is attributable to any act of God, riot, public enemy, fire, explosion, flood, drought, war, sabotage, natural disaster, civil unrest, action by a governmental authority, or any other circumstance of a similar nature beyond the reasonable control of the affected party (a “Force Majeure Event”); provided, however that the affected party shall notify the other party of the existence of any such Force Majeure Event and the effect upon its ability to perform its obligations hereunder, and Customer’s obligation to pay the purchase price for Products when due under Section 2 shall not be suspended or excused by any Force Majeure Event affecting Customer provided that ZSM has delivered the Product prior to submission of the invoice as provided in Section 2.

Insolvency: In event of insolvency as defined in the California Uniform Commercial Code Section 1201 (as amended), any act of bankruptcy, whether voluntary or involuntary, or any insolvency proceeding instituted, by or against Customer, ZSM shall be entitled, in its discretion, to (a) cancel this Agreement (and any Customer’s purchase order then outstanding) and to receive reimbursement for ZSM’s reasonable out of pocket expenses, including delivery costs (if any), (b) adjust the payment terms to cash in advance, (c) stop delivery of product in transit. Customer shall not, and acknowledges that it will have no right to withhold, offset, recoup or debit any amounts owed (or to become due and owing ) to ZSM or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by ZSM or its affiliates, whether relating to ZSM's or its affiliates' breach or non-performance of this Agreement or any other agreement between Customer or any of its affiliates, and ZSM or any of its affiliates, or otherwise.

Assignment: Customer shall not assign or transfer this Agreement or its interest or rights therein, in whole or in part, whether voluntary or by operation of law, without the prior written consent of ZSM. ZSM shall be permitted in its discretion to assign its rights under this Agreement, in whole or in part, and to delegate its performance of this Agreement, in whole or in part, to one or more other persons or entities; provided, that such an assignment or delegation shall not relieve ZSM from any of its obligations under this Agreement.

Conflict: In the event of any inconsistency between the terms and conditions of the Agreement and any exhibit, purchase order, invoice, or other similar document issued by either party, the terms and conditions of the Agreement shall prevail.

Waiver/Severability: The waiver by either party of a breach of any provision of this Agreement shall not constitute or be construed as a waiver of any future breach of any provision(s) in this Agreement. The provisions of this Agreement shall be severable and the invalidity of any provision, or portion thereof, shall not affect the enforceability of the remaining provisions of this Agreement.

Entire Agreement: This Agreement, including the Final Quotation(s), constitutes the entire agreement between ZSM and Customer and supersedes all previous communications, representations and agreements, whether oral or written, between Customer and ZSM with respect to the subject matter hereof. This Agreement may not be modified, supplemented, qualified or otherwise revised except in writing signed by Customer and ZSM.

Relationship: This Agreement is not intended, and shall not be construed, to constitute or create, an employment, joint venture, partnership, agency or franchising relationship between the parties, and neither party shall have any authority, express, implied or apparent, to assume or create any obligations on behalf of or in the name of the other party.

Governing Law, Venue and Claims: This Agreement shall be governed by, construed and interpreted in accordance with the laws of the State of California, without regard to conflicts of law provisions. The parties agree that the provisions of the United Nations Convention on the International Sales of Goods will not apply to this Agreement. Any dispute or claim arising out of or in connection with any provision of this Agreement will be finally settled by binding arbitration in the State of California, in accordance with the rules of the Judicial Arbitration and Mediation Service (“JAMS”), by one arbitrator appointed in accordance with the rules of JAMS. The arbitrator shall apply California law, without regard to conflicts of law rules or rules of statutory arbitration, to the resolution of any dispute or claim. Any judgment rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction in the State of California for preliminary or interim equitable relief, or to compel arbitration in accordance with this paragraph, without breach of this Section 20. In the event of any dispute or claim, the prevailing party shall be entitled to attorneys’ fees and reasonable expenses.

Notices: Any notice required or contemplated by this Agreement shall be in writing sent via overnight courier with receipt tracking capability or by certified U.S. mail, return receipt requested, or electronic communication (with return receipt), addressed to the parties at their addresses set forth in the Final Quotation (for ZSM) or a purchase order of the Products (for Customer), or at such other addresses as may from time to time be substituted therefor by notice in writing sent by the party changing its address. Notice given by one party shall be deemed effective upon receipt by the other party.