This is to acknowledge receipt of your ("Buyer") purchase order for the specified products (the "Products") of ELANTAS PDG,INC. ("Seller") and to set forth the terms and conditions ("Terms and Conditions")of sale for this order. If the Terms and Conditions of this acknowledgment differ in any way from the terms and conditions of Buyer's order, this acknowledgment shall be construed as a counteroffer and shallnot be effective as an acceptance of such order unless Buyer assents to the Terms and Conditions contained herein, which shall constitute the entire agreement between the parties. Buyer's assent to theTerms and Conditions contained herein shall be deemed given upon Buyer's execution of this acknowledgment below or upon Buyer's failure to object to these Terms and Conditions in writing within ten (10)days from the date of receipt of this acknowledgment. Buyer's receipt of delivery of the Products without immediate return will further manifest Buyer's assent to these Terms and Conditions. No additions to ormodifications of any of the Terms and Conditions hereof shall be effective unless made in writing and signed by both parties.
1. TAXES: Any tax or governmental charge (or increase in same) affecting Seller's costs of production, including costs of materials used therein, sale, delivery, storage, processing, use, consumption ortransportation shall be for Buyer's account and shall be added to the price.
2. TERMS OF PAYMENT: Terms are net thirty (30) days from the date of Seller's invoice in U.S. currency, or as printed on the face of the document. Seller shall have the right, among other remedies, eitherto terminate this agreement or to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due. Buyer shall be liable for all expenses,including attorneys' fees, relating to the collection of past due amounts. If any payment owed to Seller is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceedthe maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer's financial responsibility become unsatisfactory to Seller, cash payments or security satisfactory to Seller maybe required by Seller for future deliveries and for the Products theretofore delivered. If Seller desires to revise the applicable price, discount or terms of payment for the Products hereunder, but is restricted toany extent against so doing by reason of any governmental law, regulation, order or action or if the price, discount or terms of payment in effect under this agreement are altered by reason of any government,law, regulation, order or action, Seller shall h we the right to terminate this order with respect to any Products not then delivered by written notice to Buyer.
3. SHIPMENT AND DELIVERY: Deliveries are made F.O.B. Seller's shipping point. Risk of loss or damage and responsibility shall pass from Seller to Buyer upon delivery to and receipt by a common carrier.
Any claims for shortages or damages suffered in transit shall be submitted by Buyer directly to the carrier. While Seller will use commercially reasonable efforts to maintain the delivery date(s) acknowledged orquoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Products forwhich Buyer has not provided shipping instructions. If the shipment of the Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Seller for any and all storage costs and otheradditional expenses resulting therefrom. If Seller desires to revise the point of shipment for the Products hereunder, but is restricted to any extent against so doing by reason of any governmental law,regulation, order or action or if the point or delivery in effect under this agreement is altered by reason of any government, law regulation, order or action, Seller shall have the right to terminate this thendelivered by written notice to Buyer.
4. CONTAINERS: Returnable drums and other containers, which can be billed extra at Seller's current schedule of prices, remain Seller's property. Buyer shall protect them and be responsible for any loss ofor damage to any of them from, whatever while in Buyer’s possession; and shall return them in good condition in accordance with the terms shown on the face of the invoice, for full credit or refund at theprice billed.
5. LIMITED WARRANTY, LIMITATION OF REMEDY AND LIABILITY: Subject to the limitations on remedies and liabilities set forth below, Seller warrants, at the time of shipment from Seller the chemicalcomposition of its Products within stated tolerances, but does not guarantee that a Product will be appropriate for any particular application. Any recommendation, performance of tests or suggestion is offeredmerely as a guide and is not a substitute or a thorough evaluation by the manufacturer. No representative of Seller has the authority to offer a warranty that a Product will perform satisfactorily in manufacturingthe Buyer's product and no such representation should be relied upon. Determination of the suitability of the Products for the use contemplated by Buyer is the sole responsibility of Buyer, and Seller shall haveno responsibility in connection with such determination. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANYWARRANTY AGAINST INFRINGEMENT OF ANY THIRD PART’S INTELLECTUAL PROPERTY RIGHTS; AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULARPURPOSE ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED FROM THIS AGREEMENT. Buyer agrees to examine and inspect the Products at once upon arrival at their destination, and if theProducts fail to comply with the warranty provided hereunder, Buyer shall promptly give detailed written notice of such failure to Seller. Any claim under this warranty shall conclusively be deemed waived byBuyer unless written notice thereof is given to Seller within fifteen days after discovery, but in no event later than ninety days from the date of sale. Additionally, no claims shall be allowed for any cause as toProducts which have been treated or processed in any way, except for such quantity necessarily processed to determine the existence of an inferior quality or defective condition. Seller's responsibility andBuyer’s exclusive remedy under this warranty is limited to the replacement of the Products or the refund of the amount of the purchase price paid by Buyer, at Seller's option, upon the return of anynonconforming Products to Seller at Buyer's expense, except such part, if any, as cannot be returned due to is necessary use in processing; and Buyer shall also return, if possible, the said Products used inprocessing. This warranty does not extend to any losses or damages due to misuse, accident, abuse, neglect, Buyer's negligence or intentional conduct, unauthorized modification or alteration, use beyondrated capacity, or improper storage, maintenance or application. IT IS UNDERSTOOD AND AGREED THAT SELLER'S LIABILITY HEREUNDER OR IN CONNECTION WITH THE MANUFACTURE ORSALE OF THE PRODUCTS DESCRIBED HEREIN, WHETHER IN CONTRACT, IN TORT, FOR INFRINGEMENT, UNDER ANY WARRANTY, IN NEGLIGENCE OR OTHERWISE SHALL NOT EXCEED THERETURN OF THE AMOUNT OF THE PURCHASE PRICE PAID BY BUYER. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIALDAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF ANTICIPATED PROFITS INCURRED BY BUYER). THE PRICE STATED FOR THE PRODUCTS IS A CONSIDERATION IN LIMITINGSELLER'S LIABILITY.
6. EXCUSE OF PERFORMANCE (FORCE MAJEURE): Seller shall not be liable for delays in performance or for non-performance due to acts of God; acts of Buyer; war; fire; terrorism or other criminalconduct; flood; weather; sabotage; strikes, or labor or civil disturbances; governmental requests, restrictions, laws, regulations, orders or actions; unavailability of or delays in utilities or transportation; default ofsuppliers; or unforeseen circumstances or any other events or causes beyond Seller's reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or canceled bySeller upon notice to Buyer in the event of any of the foregoing, but the remainder of the agreement shall otherwise remain unaffected as a result of the foregoing. If Seller determines that its ability to supplythe total demand for the Products, or to obtain material used directly or indirectly in the manufacture of the Products, is hindered, limited or made impracticable, Seller may allocate its available supply of theProducts or such material (without obligation to acquire other supplies of any such Products or material) among its purchasers on such basis as Seller determines to be equitable without liability for any failureof performance which may result therefrom.
7. CANCELLATION: Buyer may cancel orders only upon ten (10) days written notice prior to the ship date quoted or acknowledged by Seller and upon payment to Seller of its cancellation charges whichinclude, among other things, all costs and expenses incurred to cover commitments made by Seller, and a reasonable profit thereon. Seller's determination of such termination charges shall be conclusive.
8. EXPORT-IMPORT COSTS AND DOCUMENTS: Unless otherwise specifically stated, prices do not include the cost of special preparation for export, export declarations, certificates of origin or other documents, insurance in transit or similar items, and any cost incurred for such items shall be added to the prices as shown. It shall be the responsibility of Buyer toprovide all import licenses, foreign exchange approvals and similar documents required in connection with the purchase, delivery and payment for the Products covered hereby.
9. ACCOMPANYING DOCUMENT: Buyer acknowledges that a pro forma invoice is intended to provide an indication of product value and/or quantity and that the actual invoice is the billing documentcontaining the applicable charges related to the shipment. Buyer will remit payment based upon the actual invoice amounts.
10. CUSTOM MADE PRODUCTS: Because of the conditions involved in the manufacture of custom made Products, where an order calls for a Product to be made-to-order specifically for Buyer: (1) a deliveryof not less than 90% of the order will be considered a complete fulfillment of the order; and (2) in case of an over-run, Seller may deliver and Buyer will accept any such excess up to 10% of the order, but notmore than 1,000 pounds.
11. CHANGES: Buyer may request changes or additions to the Products consistent with Seller's specifications and criteria upon ten (10) days written notice prior to the ship date quoted or acknowledged bySeller. In the event such changes or additions are accepted by Seller, Seller may revise the price(s) and date(s) of delivery. Seller reserves the right to change the specifications for the Products without priornotice to Buyer, except with respect to Products being made-to-order for Buyer.
12. TECHNICAL ADVICE: Seller, upon Buyer's request, may furnish technicaladvice with reference to the use of the Products sold hereunder, if and to such extent as Seller has such advice convenientlyavailable, but it is expressly agreed that there is no obligation to furnish any such advice, and that if any advice or assistance is furnished, which will be without charge, it shall be given and accepted atBuyer's risk, and Seller shall not be responsible or liable for the advice or assistance given or the results thereof.
13. ASSIGNMENT: Buyer shall not assign its rights or delegate its dutieshereunder or any interest therein or any rights hereunder without the prior written consent of Seller, and any such assignment, withoutsuch consent, shall be void.
14. PRODUCT HANDLING: Buyer shall be responsible for receiving, inspecting, testing, storing, maintaining, applying and disposing of (in accordance with all applicable governmental laws, regulations, ordersor actions) all Products.
15. GENERAL PROVISIONS: These Terms and Conditions supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms and Conditions.
No change, modification, rescission, discharge, abandonment, or waiver of these Terms and Conditions shall be binding upon Seller unless made in writing and signed on its behalf by an officer or other dulyauthorized representative of Seller (sales representatives are not an authorized representative). No conditions, usage of trade, course of dealing or performance, understanding or agreement purporting tomodify, vary, explain, reject, or supplement these terms and conditions shall be binding unless hereafter made in writing and signed by the party to be bound, and no modification shall be affected by Seller'sreceipt, acknowledgment, or acceptance of purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to those set forth herein. No waiver by eitherparty with respect to any breach or default or of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default or of any other right or remedy,unless such waiver be expressed in writing and signed by the party to be bound. All typographical or clerical errors made by Seller in any quotation, acknowledgment or publication are subject to correction.
The validity, performance, and all other matters relating to the interpretation and effect of this agreement shall be governed by the laws of the state of Missouri, without giving effect to its conflict of laws andrules. The application of the United Nations Convention on Contracts for the Inter national Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods to thisagreement are expressly excluded. Buyer and Seller agree that the proper venue for all actions arising in connection herewith shall be only in St. Louis County, Missouri and the parties agree to submit tosuch jurisdiction. This acknowledgment and the Terms and Conditions specified herein are hereby accepted by Buyer.

Source: http://www.actega.cn/fileadmin/altana/service-menu/de/ELANTAS/ELANTAS-PDG-Terms-and-Conditions-of-Sale.pdf

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