General terms

A. These Terms of Sale (these “Terms”) govern the sale by Zeon Specialty Materials Inc. (“ZSMI”) of the product(s) (the “Product(s)”) described in any quotation, proposal, or purchase order accepted by ZSMI (collectively, and together with these Terms, the “Sales Agreement”) to the buyer indicated on the Sales Agreement (the “Customer”). ZSMI and Customer are sometimes referred to herein, individually, as a “Party” and, collectively, as the “Parties.”

B. These Terms form an integral part of the Sales Agreement and are incorporated therein. To the extent any provisions of the Sales Agreement (other than these Terms) conflict with the provisions of these Terms, these Terms shall control. These Terms expressly incorporate by reference any product documentation provided by ZSMI to Customer, as may be updated from time to time. Customer acknowledges and agrees that ZSMI’s sales personnel and other agents have no authority to modify or expand the terms of these Terms, or to make any representations not explicitly included herein, without a written amendment signed by a duly authorized representative of ZSMI.

C. Any purchase order (“PO”) submitted by Customer is subject to review and approval by ZSMI in its sole discretion. No PO shall be deemed accepted, and no binding obligation shall arise, unless and until ZSMI expressly confirms acceptance of such PO in writing through an authorized representative. For clarity: (i) these Terms will govern and apply notwithstanding any inconsistent or additional terms contained in any PO or similar document or communication issued by Customer, all of which are hereby expressly rejected unless agreed in a writing signed by ZSMI; and (ii) ZSMI’s operational acknowledgment of receipt of a PO shall not, by itself, constitute legal acceptance of such PO.

Delivery, packing and pricing

A. Product shall be suitably packed and shipped as designated by ZSMI in accordance with requirements of common carriers in a manner intended to secure lowest transportation cost.

B. Unless otherwise agreed in writing, prices for Product and delivery of Product shall be FOB (shipping point) where ZSMI’s facility is designated as the place of shipment (the “Facility”).

C. Prices are exclusive of all taxes, tariffs, fees, and other charges imposed by any governmental authority, all of which shall be the responsibility of Customer. Upon notice to Customer, ZSMI reserves the right to adjust the price of any Product, prior to transfer of title or physical possession to Customer, to reflect any increase in tariffs, import duties, freight, fuel surcharges, export or customs fees, or other similar charges imposed by any governmental act or regulation, or similar circumstance, that impacts ZSMI’s cost to supply such Product.

D. ZSMI reserves the right to sell remanufactured, reconditioned, or refurbished Product, provided such Product meets applicable specifications and is identified as such in the applicable Sales Agreement. Notwithstanding anything to the contrary in these Terms, any Products that are custom-manufactured, Customer-specific, or developed to meet Customer’s unique specifications or requirements (“Custom Products”) are non-cancellable, non-refundable, and non-returnable by Customer once the PO is accepted by ZSMI.

Additional delivery and payment terms

A. If ZSMI fails to deliver Product by the delivery date set forth in the Sales Agreement, Customer shall give ZSMI written notice and shall allow ZSMI a reasonable period of time to cure; provided that, subject to Section 7, ZSMI shall be considered in default only if the relevant Product is not delivered by the later of (a) thirty (30) days after ZSMI’s receipt of such notice from Customer, or (b) sixty (60) days after the original delivery date for the relevant Product as set forth in the Sales Agreement.

B. Unless otherwise expressly set forth in the Sales Agreement, ZSMI may tender delivery of Product in installments and, in such case, each installment shall be deemed a separate sale for purposes of payment. ZSMI reserves the right to require payment in full or in part, including on a cash-in-advance basis, prior to any delivery. For clarity, Customer shall be obligated to pay for each installment of Product tendered or delivered, and may not withhold payment pending delivery of all Product purchased under the Sales Agreement.

C. Payment shall be due from Customer in accordance with the payment due date specified on ZSMI’s invoice. For clarity, ZSMI may issue its invoice to Customer at any time prior to or following ZSMI’s delivery of the relevant Product to the Facility, unless otherwise agreed in writing by ZSMI.

D. All payments shall be made by Customer to ZSMI in full without set-off, deduction, counterclaim, or withholding of any kind. In the event of late payment, interest shall accrue on the unpaid balance at a rate of two percent (2%) per month or the maximum amount permitted by law, whichever is less, and Customer shall pay all reasonable costs incurred by ZSMI in attempting to collect any unpaid balances from Customer. ZSMI shall also have the right, in its sole discretion and without liability, to suspend, delay or withhold further shipment or delivery of Product until all outstanding amounts are paid in full by Customer.

Title and risk of loss

A. Title to Product shall be vested in Customer at such time as the Product has been tendered by ZSMI to the Facility and Customer has paid the full purchase price for such Product, but not before. Risk of loss or damage to Product shall pass to Customer upon tender of such Product by ZSMI to the Facility.

B. ZSMI retains, and Customer hereby grants, a purchase money security interest (“PMSI”) in all Product sold under the Sales Agreement, including these Terms, and in the proceeds thereof, until full payment is received. ZSMI has all rights and remedies accorded by law or equity to a secured seller, including the right to enter upon the premises where the Products will be located for purposes of removing them, and all such rights and remedies will be cumulative. Customer (i) will maintain insurance against all risks to cover full replacement value of the Products until ZSMI has been paid in full and (ii) agrees to take all actions and execute all documents reasonably required to perfect and maintain such PMSI, including authorizing ZSMI to file any UCC financing statements as necessary.

Warranty; Customer Rejection

A. ZSMI warrants to Customer that Product shall be free from material defects in design, materials and workmanship as of the shipment date. Customer must provide written notice of any warranty claim in accordance with the requirements of this Section within thirty (30) days of delivery of Product to Customer or such warranty claim shall be barred. Customer warranty claims, to be effective, must be delivered in writing by Customer to ZSMI both (i) by email to customerservice@zeonsmi.com, and (ii) by registered mail (return receipt requested) or courier to the following address: Zeon Specialty Materials, Inc., 25 Metro Drive, Suite 238, San Jose, CA 95110. The notice must identify the Product(s) in question, the relevant date(s) of its delivery by ZSMI, and the particular defect(s) in reasonably sufficient detail to permit ZSMI to understand the specific nature of the warranty claim.

B. Customer shall also notify ZSMI in writing of any rejection of Product for failure to conform to the Sales Agreement e.g. wrong number of Products delivered, wrong Products delivered etc., giving detailed reasons for the rejection, within ten (10) days after Customer’s receipt of such Product. Failure of Customer to reject any Product within that period shall constitute acceptance.

C. If Customer rejects Product for such nonconformity or makes a warranty claim, in either case in accordance with the requirements set forth above, Customer shall allow ZSMI a reasonable period of time thereafter to remedy the relevant non-conformity or defect. Customer shall render necessary assistance to ZSMI in connection with that effort, and shall furnish adequate means for operating and testing the relevant Product. ZSMI shall have the right to inspect and test any rejected Product before a return is authorized. ZSMI’s agreement to undertake any inspection, testing or any remedial action shall not be deemed an admission that the Product was non-conforming or defective.

D. Should Product prove to be, in ZSMI’s sole discretion, nonconforming with the Sales Agreement or defective under the warranty provided for above, and that nonconformity or defect is not remedied by ZSMI within the time period contemplated above, Customer must return the particular Product to ZSMI at ZSMI’s expense, strictly as set forth in the return authorization issued to Customer in writing by ZSMI. Customer shall immediately notify ZSMI of the return in accordance with the notice procedures set forth in Section 15(I), and ZSMI shall then, at its option, either replace the relevant Product with conforming or non-defective Product, repair the relevant Product, or rescind the Sales Agreement with respect to the nonconforming or defective Product and return to Customer any purchase price amounts already paid for that nonconforming or defective Product.

E. ZSMI’s warranty shall immediately become null and void with respect to any Product to the extent it has been subject to (a) other than normal wear and tear, (b) any unreasonable use, installation or repair (including without limitation, any use, installation or repair in a manner that is inconsistent with written guidelines that may have been delivered by ZSMI to Customer), or any use, installation or repair by unauthorized service personnel, or (c) any tampering, negligence, misuse, abuse or accident undertaken or caused, directly or indirectly, by any person or entity other than ZSMI or its employees or agents. This warranty shall also be void with respect to any Product that has been altered, modified or combined with other materials not supplied by ZSMI.

F. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OF TECHNOLOGICAL VALUE, ALL OF WHICH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY ZSMI. No employee or agent of ZSMI is authorized to make any other warranty, representation, or promise on behalf of ZSMI, and Customer acknowledges that it has not relied on any such representation or statement. In addition, ZSMI makes no warranty with respect to third-party components or materials not manufactured by ZSMI.

G. The remedy of Customer provided for in section 5.D above shall be ZSMI’s sole liability and Customer’s sole and exclusive remedy resulting from, arising out of or with respect to any breach of ZSMI’s warranty set forth in section 5.A or ZSMI’s failure to deliver Product in accordance with the Sales Agreement pursuant to section 5. B.

Customer’s Obligations to Determine Fitness for purpose

Technical or applications support, compounding formulations, and regulatory/Product stewardship information, as well as any samples (including samples of Products or other materials), are provided, on an “AS IS AND WITH ALL FAULTS” basis without any warranty of kind, for Customer knowledge only and do not modify, amend, enlarge or create any specification, representation, or warranty. By receiving, using, or incorporating ZSMI Products and/or materials, Customer expressly acknowledges and agrees that Customer is solely responsible for determining and ensuring that all applicable conditions, specifications, and legal and regulatory requirements are met and that all Products and/or materials or components fabricated from ZSMI Products and/or materials are suitable, permissible, and acceptable for Customer’s specific or potential applications. Customer further acknowledges and agrees that it is not relying on any statements, suggestions, technical assistance, application guidance, samples, or recommendations from ZSMI regarding the design, use, suitability, compliance, performance or compatibility of ZSMI Products and/or materials for Customer’s intended application or use, and that no such input shall create any warranty or modify any of these Terms.

Excusable delay

Other than Customer’s payment obligations under the Sales Agreement, neither Party shall be liable to the other for damages for any delay in performance under the Sales Agreement arising out of causes or circumstances beyond its reasonable control and without its negligence or willful misconduct (each, a “Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God, fire, flood, pandemic, epidemic, acts of government, labor disruptions, shortages of raw materials, cyberattacks, telecommunications network outages, transportation failures, unavailability of standard (non-premium) ocean freight, and any other events or causes beyond the reasonable control of the affected Party. The affected Party shall notify the other Party promptly of the Force Majeure Event and use reasonable efforts to mitigate its effects.

Changes

ZSMI reserves the right at any time, in its sole discretion, to make changes in (a) its drawings and specifications, (b) methods of packaging and shipping, and (c) prices for Product prior to shipment or other fulfillment of any portion of a PO submitted by Customer, or any other commitment by ZSMI to sell such Product to Customer. Unless expressly agreed in writing by ZSMI, ZSMI shall have no obligation to comply with any Customer specifications, packaging requirements, or technical standards. If ZSMI does agree to any such Customer-specific requirements, it may revise its prices accordingly.

Insolvency

For purposes of these Terms, “Insolvency” means that Customer: (a) becomes unable to pay its debts as they become due in the ordinary course of business; (b) makes a general assignment for the benefit of creditors; (c) files, or has filed against it, a petition for voluntary or involuntary bankruptcy, reorganization, insolvency, or similar proceeding; or (d) is subject to the appointment of a receiver, trustee, custodian, or similar agent for substantially all of its property or business. In event of any Insolvency, ZSMI shall be entitled, in its sole discretion, to (i) cancel the Sales Agreement (and any of Customer’s PO(s) then outstanding) and to receive reimbursement for ZSMI’s reasonable and proper cancellation charges, including, but not limited to, out-of-pocket expenses and delivery costs, as applicable, (ii) adjust the payment terms to cash in advance for all Product, and/or (iii) stop delivery of Product in transit, enforce its PMSI in the Product and proceeds thereof, and exercise any other rights or remedies available at law or in equity.

Limitation of Liability

A. IN NO EVENT SHALL ZSMI OR ITS LICENSORS BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THESE TERMS OR THE PRODUCTS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

B. THE TOTAL LIABILITY OF ZSMI AND ITS LICENSORS ARISING OUT OF OR RELATING TO THESE TERMS AND THE PRODUCTS FURNISHED HEREUNDER WILL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO ZSMI FOR THE SPECIFIC PRODUCT ON WHICH SUCH LIABILITY IS BASED.

C. REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY ZSMI, BY WAY OF RECOMMENDATIONS OR OTHERWISE, CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS, INCLUDING IN ANY END PRODUCTS CREATED BY CUSTOMER USING, IN WHOLE OR IN PART, THE PRODUCTS.

Confidentiality

ZSMI shall keep confidential any POs submitted by Customer. Customer shall keep confidential any quotations or invoices issued by ZSMI. Each Party shall treat any other non-public information received in connection with the Sales Agreement with reasonable care.

Intellectual property

A. “Intellectual Property Rights” means patents, trademarks, service marks, trade and service names, domain names, copyrights, topography rights, mask works, database rights, design rights, trade secrets and other intellectual property or moral rights, whether or not they are registered and including all applications and rights to apply for registration, and all similar or equivalent rights, anywhere in the world.

B. Customer acknowledges and agrees that: (a) any and all of ZSMI’s Intellectual Property Rights are the sole and exclusive property of ZSMI or its licensors; (b) Customer will not acquire any ownership interest in any of ZSMI’s Intellectual Property Rights; (c) any goodwill derived from the use by Customer of ZSMI’s Intellectual Property Rights inures to the benefit of ZSMI or its licensors, as the case may be; (d) if Customer acquires any Intellectual Property Rights or other rights in or relating to any Product by operation of law or otherwise, such rights are deemed and are hereby irrevocably assigned to ZSMI without further action by either of the Parties; and (e) Customer shall not use, disclose, reproduce, or exploit ZSMI’s Intellectual Property Rights except as expressly authorized in writing by ZSMI. For clarity, these Terms do not address the ownership or licensing of any intellectual property that may arise from ZSMI’s development of Custom Products. If applicable, such terms will be set forth in a separate written agreement between the Parties.

C. Customer may provide questions, comments, suggestions or ideas to ZSMI about the Products (“Feedback”). If Customer provides Feedback, then Customer hereby grants to ZSMI a perpetual, worldwide, sublicensable, transferable, royalty-free right and license to use that Feedback without restriction and without obligation to Customer.

D. Unless otherwise agreed to in the Sales Agreement, Customer agrees that ZSMI may refer to Customer’s name, trademarks, logos, Feedback, case studies, testimonials, or comments in any of its marketing, advertising, customer references, website or any other public materials.

E. Customer’s violation of this Section 12 may cause ZSMI or its affiliates irreparable damage for which other remedies would be inadequate. In addition to any other remedies that may be available at law or in equity, ZSMI has the right to obtain such injunctive or other equitable relief from a court of competent jurisdiction as necessary to prevent any such violation.

Compliance

A. Customer acknowledges that ZSMI has informed it (through these Terms) that export control laws and regulations, including the U.S. Export Administration Regulations and the International Traffic in Arms, Regulations and other similar laws and regulations in other jurisdictions such as Japan govern, and may prohibit the re-export or other disposition of Product and related technical data received by Customer or its customers from ZSMI without prior U.S. and/or Japanese government approval.

B. Customer agrees that diversion of Product from destinations identified in the shipper’s export declaration constitutes a fundamental and material breach under the Sales Agreement, including these Terms. If Product is diverted from intended destinations, the sale may be voided at the sole discretion of ZSMI, and all right, title and interest in Product shall revert to ZSMI. In the event of such breach, Customer shall be liable to ZSMI for all costs, fees and expenses incurred by ZSMI in connection with recovery of Product, including reasonable attorney fees.

C. Customer agrees and warrants that in the performance of its obligations under the Sales Agreement, including these Terms, or its use or transportation of Product, Customer will at all times comply with all applicable domestic and foreign laws, rules and regulations, including without limitation, all import and export laws, rules and regulations, and the U.S. Foreign Corrupt Practices Act and other applicable anti-bribery or anti-corruption laws.

Indemnification

Customer shall defend, indemnify, and hold harmless ZSMI and its affiliates, and each of their respective officers, directors, employees, agents, licensors, successors and permitted assigns (collectively, the “Indemnified Parties”) from and against any and all losses, damages, liabilities, penalties, fines, settlement and/or compromise payments, costs, and expenses (including reasonable attorneys’ fees and all other costs of litigation and defense) arising out of or relating to: (i) any breach by Customer of the Sales Agreement, including these Terms; (ii) Customer’s or its employees’, agents’, contractors’, or other representatives’ use, misuse, alteration, or distribution of the Product, including without limitation, any incorporation of the Product into an end-product or system; (iii) any bodily injury, death, or property damage related to the use or handling of Product by or on behalf of Customer; and (iv) any Customer Materials, including any actual or alleged infringement, misappropriation, or violation of intellectual property rights of a third party.

Miscellaneous

A. Any action, suit or proceeding by Customer on account of or with respect to any alleged breach by ZSMI of any of its duties or obligations under the Sales Agreement, including these Terms, to be effective and eligible for prosecution against ZSMI, must be commenced within one (1) year of the date of the alleged breach or it shall be deemed to be forever barred.

B. The Sales Agreement, including these Terms, constitutes the entire agreement and understanding between ZSMI and Customer with respect to the subject matter thereof, and supersedes any prior or contemporaneous written or oral agreements or understandings with respect to that subject matter. The Sales Agreement, including these Terms, is a complete and exclusive statement of the terms of the Parties’ agreement.

C. The Sales Agreement may not be amended, modified or supplemented except in a writing signed by ZSMI and Customer.

D. Neither ZSMI nor Customer shall be deemed to have waived any right or remedy under or available pursuant to the Sales Agreement, including these Terms, unless such waiver is in writing and signed by the Party against which enforcement of the waiver is sought.

E. ZSMI shall be permitted in its discretion to assign its rights under the Sales Agreement, in whole or in part, and to delegate its performance of the Sales Agreement, in whole or in part, to one or more other persons or entities; provided, that such an assignment or delegation shall not relieve ZSMI from any of its obligations under the Sales Agreement. Customer may not assign any of its rights or delegate any of its obligations under the Sales Agreement, whether voluntarily, by operation of law, or otherwise, without the prior written consent of ZSMI.

F. In the event any provision of the Sales Agreement, including these Terms, is determined to be invalid, illegal or unenforceable, in whole or in part, by a court of competent jurisdiction or as a result of applicable law or regulation, the remaining provisions shall not be affected thereby and shall remain in full force and effect to the fullest extent permissible under applicable law.

G. Headings set forth in these Terms are for convenience only and do not constitute a portion of these Terms.

H. The Sales Agreement shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its conflicts of laws, rules, or principles. Each Party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Santa Clara County, California, for any dispute arising out of or relating to this Agreement, and waives any objection to venue in such courts, including any objection based on forum non conveniens. The Parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

I. Whenever any notice or other communication is given by one Party to the other under these Terms, such notice shall be in writing and delivered to the recipient’s notice address as set forth in the Sales Agreement, or to such other address as the recipient may designate in writing, except as otherwise explicitly provided herein (e.g., Section 5(A)). Notices may be delivered by email (except for notices of breach or termination of the Sales Agreement or these Terms), registered mail (return receipt requested), express delivery service, courier, or delivered in person to ZSMI’s business offices located at 25 Metro Drive, Suite 238, San Jose, CA. Notices properly given in accordance with this Section 15 will be effective on the date actually received.

J. The Parties agree that execution by DocuSign (or other e-signature technology that provides comparable identity verification and security protocols) will be deemed the same as an original “wet ink” signature for all purposes, for effectiveness of the Sales Agreement, including these Terms. If applicable law requires original “wet ink” signature in any instance, the Parties agree to cooperate to provide such further assurance to supplement any prior e-signature execution. Customer agrees to receive electronically all communications, agreements, documents, notices and disclosures that ZSMI provides in connection with the Sales Agreement, including these Terms, or the Products.

K. The Sales Agreement, including these Terms, does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. Each party will be solely responsible for the payment of all compensation owed to its employees, as well as all employment-related taxes.