TERMS AND CONDITIONS OF SALE

Definitions.  As used in these Terms and Conditions of Sale (these “Terms”), the following terms have the following meanings: (a) “Buyer” means the purchaser named in the Order; (b) “Company” means the seller named in the Order; (c) “Delivery Date” means the date of delivery dictated by the Delivery Term; (d)“Delivery Term” means (i) EXW (Incoterms® 2020), Company’s facility in Pueblo, Colorado, USA, (ii) DAP (Incoterms® 2020), Buyer’s designated point of shipment in the USA, or (iii) such other delivery term as mutually agreed upon by Buyer and Company, in each case, as indicated in Company’s Order acknowledgment; (e) “Order” means any purchase order, order acknowledgment, quotation or other document initiating a sale of Product by the Company; and (f) “Product” means the product or products sold by the Company to Buyer.

Agreement. These Terms may be furnished to Buyer by any means, including through publication on the Company’s website or customer portal. All sales are made in accordance with these Terms, which together with the Order constitute the entire agreement between the Company and Buyer relating to the sale of the Product described in the Order and supersede and cancel all prior agreements, understandings, representations and warranties, both oral and written, between the parties with respect thereto. THE COMPANY’S SALE OF PRODUCT IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS, AND ANY OTHER TERMS, CONDITIONS OR DOCUMENTS PROVIDED OR PROPOSED BY BUYER—WHETHER PREPRINTED, REFERENCED OR OTHERWISE—THAT ATTEMPT TO VARY, OR ARE IN ADDITION TO OR DIFFERENT FROM, THOSE SET FORTH IN THESE TERMS ARE HEREBY REJECTED AND WILL NOT FORM A PART OF THE AGREEMENT BETWEEN THE COMPANY AND BUYER EVEN IF THE COMPANY FAILS TO CONTRADICT SUCH ADDITIONAL OR DIFFERENT TERMS. NO TERMS OF ANY DOCUMENT OR FORM SUBMITTED BY BUYER SHALL BE EFFECTIVE TO PREEMPT, REJECT, ALTER OR ADD TO THESE TERMS. Any Order or statement of intent by Buyer to purchase Product shall constitute Buyer’s assent to these Terms. For those instances where a master agreement is in effect between the Company and Buyer, the terms and conditions of such master agreement shall take precedence over any alternative terms or conditions set forth in these Terms.

Quotations and Published Prices. All quotations for Product are subject to change upon written notice to Buyer and are void after 30 days, unless a shorter or longer period is expressly specified in the quotation. The prices shown on any published price lists and other published literature issued by the Company do not constitute offers to sell capable of acceptance by Buyer and all Orders remain subject to acceptance by the Company. All published prices and discounts are subject to change without notice. The Company reserves the right to correct any typographical or clerical errors or omission in any Order.

Payment. Unless otherwise set forth in the Order, all payments are due in full within 30 days from the Invoice Date. In addition to any published or quoted prices for the Product, invoices may include freight, crating, handling charges, charges for expedited service, insurance, taxes, export preparation charges, duties and other similar charges. Unless otherwise stated in the Order, the price of the Product does not include conveyors, tables, tubing or other equipment or supplies, including, without limitation, films and product used in the operation of the Product. All payments must be made in U.S. dollars. Past due balances bear interest until paid in full at the rate of 1.5% or the maximum rate permitted by applicable law, whichever is less. Interest shall accrue from the original due date until paid in full and shall be calculated and compounded monthly. Overdue interest shall be added to the delinquent payment and bear interest at the same interest rate. In addition, Buyer agrees that if it becomes necessary for the Company to initiate collection proceedings with respect to any monies due, Buyer shall pay all expenses in connection therewith, including attorney’s fees. Notwithstanding the foregoing, the Company reserves the right to require payment in advance if at any time Buyer’s financial responsibility becomes impaired or unsatisfactory to the Company.

Delivery; Risk of Loss. All shipping dates are approximate and are based on prompt receipt of all necessary information regarding the Order from Buyer. Products will be delivered to Buyer in accordance with the Delivery Term, and risk of loss will transfer from the Company to Buyer in accordance with the Delivery Term. If Buyer desires to procure insurance to cover its risk of loss, Buyer shall do so at its sole expense. If Buyer fails to take delivery of Product in accordance with the Delivery Term on the date specified by the Company, the Company may charge Buyer reasonable storage fees.

Delays or Non-Performance. Notwithstanding any provision in these Terms to the contrary, the Company shall not be liable to Buyer for loss or damage suffered by Buyer, directly or indirectly, as a result of the Company’s failure to perform, or delay in performing, any term, covenant or condition hereof, where such failure or delay is caused by fire, labor troubles (including, without limitation, strikes and lockouts), riots, insurrections, failure of sources of supply, government regulations, restrictions or advisories, inability to obtain materials and supplies, interruption of or delay in transportation, war, accidents, excess of the demand for the Product over the available supply, acts of God, pandemics, epidemics or other causes of like or different character beyond the Company’s control. If the Company’s performance hereunder is prevented or delayed for more than 90 days (or the Company reasonably believes such performance will be prevented or delayed for more than 90 days), the Company may terminate the Order without liability upon written notice to Buyer.

Changes to Order Before Completion. Once accepted, the Order may not be cancelled or modified without the Company’s prior written consent, which may be granted or withheld in its sole discretion. In any event, the Company’s consent to any such cancellation or modification must include Buyer’s agreement to reimburse the Company for its costs and expenses incurred in preparing to fulfill the Order and its anticipated lost profits on the Order, and indemnifying the Company against any related Claim (as defined below).

Suspension of Performance; Cancellation by the Company.  In the event that (a) Buyer makes an assignment for the benefit of creditors, (b) a voluntary or involuntary petition or other action in bankruptcy or for reorganization or under any other insolvency law is filed by or against Buyer, (c) Buyer admits its inability to pay its debts, (d) a trustee, receiver or liquidator is appointed for any part of the assets of Buyer, or (e) Buyer fails to make payments to the Company in accordance with the Order and these Terms, the Company may at its option and without liability, and in addition to its other rights under these Terms and applicable law, (i) suspend performance under the Order or (ii) cancel the Order.

Machine Installation, Training Program and Service. If provided in the Order, the Company shall supervise Buyer’s personnel in the proper installation of the Product, at the rate per hour designated in the Order, plus reimbursement of reasonable expenses. In conjunction with supervising the installation, the Company shall provide reasonable initial training to Buyer’s qualified operator(s) of the Product, and Buyer agrees to make those operator(s) available for the training. If supervision of the installation or training takes longer than one, eight-hour work day, and Buyer requests additional supervision or initial training, the Company will use its commercially reasonably efforts to provide such additional supervision or training at its standard service rates then in effect, which may be higher than the hourly rate set forth in the Order, plus reimbursement of reasonable expenses. After supervising the installation and furnishing the initial training program, the Company shall have no obligation to offer services with respect to the Product; however, the Company offers additional training programs regarding the maintenance and operation of the Product and maintenance and repair services for the Product, which may be purchased separately by Buyer.

Limited Product Warranty. Except as otherwise set forth herein, the Company warrants that as of the Delivery Date the Product will conform in all material respects to the specifications set forth in the Order and will be free from defects in material and workmanship for a period (as applicable, the “Warranty Period”) of (a) one year after the Delivery Date if the Product is a complete machine, and (b) 90 days after the Delivery Date if the Product is a part or accessory for a complete machine (the “Limited Warranty”). The Limited Warranty applies only to Product manufactured by the Company and extends only to the original Buyer and may not be assigned or transferred to any third party. The Company makes no representation or warranty with respect to any Product manufactured by a third party, but to the extent transferable, transfers the original manufacturer’s warranty (if any) to Buyer. It is Buyer’s responsibility to enforce the manufacturer’s warranty. The Limited Warranty does not apply to ordinary wear and tear of operation and is void if (a) the Product is used other than in the manner intended in accordance with the Company’s operating instructions, (b) the Product is not maintained in accordance with the procedures specified by the Company, (c) the Product has been altered or repaired by anyone other than the Company, (d) the Product has been subject to any accident, abuse, misuse or neglect, or (e) Buyer has failed to provide proper training to operators and maintenance personnel. To make a claim under the Limited Warranty, Buyer must submit a written warranty claim to the Company within ten days after it first discovers or reasonably should have discovered the alleged defect and, in any event, prior to expiration of the Warranty Period, that reasonably describes the alleged defect and cooperate with the Company in investigating the alleged defect, including providing complete and accurate maintenance records. If the Company determines that the Product is defective, acting reasonably and in good faith, then as its sole and exclusive obligation, and as Buyer’s sole and exclusive remedy, the Company will, at its election, replace or repair the defective Product or refund the purchase price for the defective Product. Any repair or replacement shall remain covered by the Limited Warranty for the remainder of the original Warranty Period. At the Company’s request and sole cost and expense, Buyer shall return the defective Product to the Company at its designated location. EXCEPT FOR THE LIMITED WARRANTY, THE COMPANY MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCT AND EXPRESSLY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY: (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY AGAINST INTERFERENCE; AND (D) WARRANTY AGAINST INFRINGEMENT; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.

Indemnity by Buyer. Neither the Company or its affiliates, nor any of their respective owners, subsidiaries, directors, managers, officers, employees, agents, representatives, contractors, predecessors, successors or assigns (each, a “Company Indemnified Party”), shall be liable for, and Buyer shall indemnify, defend and hold each Company Indemnified Party harmless from and against any and all claims, actions, suits, proceedings, costs, expenses, damages and liabilities, including, without limitation, attorney’s fees and costs and fees of other professionals (collectively, “Claims”), arising out of, connected with, or resulting from, directly or indirectly: (a) Buyer’s breach of these Terms, (b) Buyer’s violation of law, (c) the delivery, installation, possession, maintenance, use, operation, removal or return of the Product by Buyer, its agents, servants, employees or any other person (other than the Company), or (d) claims for infringement of any intellectual property rights arising from Buyer’s use of the Product in a manner other than the intended use. Without limiting the generality of the foregoing, Buyer shall indemnify, defend and hold each Company Indemnified Party harmless from and against any and all Claims asserted by Buyer and its employees, contract workers, operators of the Product, consumers of products produced using the Product, and persons claiming by or through any such persons, whether such Claims are based upon strict product liability, breach of warranty, negligence or any other legal theory. This indemnity includes all costs reasonably incurred by the Company for the defense of any Claim, whether or not resulting in any liability of the Company. Buyer’s obligations contained in this paragraph survive any expiration or termination of the Order.

Indemnity by the Company. The Company shall indemnify, defend and hold Buyer and its affiliates and their respective owners, subsidiaries, directors, managers, officers, employees, agents, representatives, contractors, predecessors, successors or assigns from and against any and all Claims asserting that the Product infringes or misappropriates the patent, copyright, trademark, trade dress, trade secret or other intellectual property rights of any third party; provided, however, that the foregoing indemnity does not apply to any Claim arising out of, connected with, or resulting from, directly or indirectly (a) the Company’s compliance with any specific design or other written instructions of Buyer, (b) use of the Product other than in the manner intended in accordance with the Company’s operating instructions, or (c) any alteration or modification of the Product after the Delivery Date, or combination of the Product with any other product not manufactured by the Company. If the Product becomes, or in the Company’s reasonable opinion is likely to become, the subject of an infringement Claim, then as its sole and exclusive obligation, and as Buyer’s sole and exclusive remedy, the Company will, at its election and sole cost and expense, (i) promptly secure Buyer’s right to continue using the Product substantially in the manner intended in accordance with the Company’s operating instructions, (ii) replace or modify the Product to avoid the asserted infringement or misappropriation Claim in ways not materially adverse to the overall operation or safety of the Product, or (iii) refund the purchase price for the Product.

Limitation of Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF THE COMPANY WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION IN CONNECTION WITH THE ORDER OR THE PRODUCT, WHETHER BASED ON AN ACTION IN CONTRACT, EQUITY, NEGLIGENCE, TORT OR OTHER THEORY, EXCEED AN AMOUNT EQUAL TO THE ACTUAL PURCHASE PRICE OF THE PRODUCT RECEIVED BY THE COMPANY. IN NO EVENT WILL THE COMPANY BE LIABLE FOR, NOR WILL THE MEASURE OF DAMAGES UNDER THESE TERMS INCLUDE, ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING LOSS OF PROFITS), EXEMPLARY OR PUNITIVE DAMAGES,  WHETHER IN CONTRACT, TORT OR OTHER THEORIES OF LAW, EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES ARISING OUT OF OR RELATING TO THE ORDER OR THE PRODUCT.

Confidentiality. The terms of the Quote are confidential and Buyer shall not disclose them other than to its employees who need to know such information in order for Buyer to purchase, operate and maintain the Product. Buyer shall protect the terms of the Quote using the same policies and procedures it uses to protect its own confidential information and, in any event, no less than commercially reasonable policies and procedures.

Governing Law; Venue; Arbitration; Attorneys’ Fees. The Order and these Terms shall be governed by the laws of the State of Colorado, USA, without regard to its conflicts of law principles. The United Nations Convention on the International Sale of Goods shall not apply. The Company and Buyer each hereby consents to service of process, and to be sued, in the State of Colorado, USA, and consents to the exclusive jurisdiction of the courts of the State of Colorado, USA, and the United States District Court for the District of Colorado, as well as to the jurisdiction of all courts from which any appeal may be taken from such courts, for the purpose of any suit, action or other proceeding arising out of or under the Order or these Terms, and both parties expressly waive any and all objections they may have as to venue in any such courts. The parties further agree that a summons and complaint commencing an action or proceeding in any of such courts shall be properly served and shall confer personal jurisdiction if served by personal delivery, first-class mail, certified mail or any other method permitted by law to the address for the party being served set forth in the Order. Notwithstanding the foregoing, it is understood and agreed between the parties that the Company has the exclusive alternative right to bring any such suit, action or other proceedings before the courts of the country where the defendant has its registered office, its principal place of business or its domicile, or to initiate arbitration proceedings in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The site of any arbitration shall be Denver, Colorado, USA. There shall be a sole arbitrator, who shall be an attorney licensed to practice in the State of Colorado, USA. The arbitration shall be conducted in English. A final award shall be issued within one year of the notice of arbitration. The prevailing party in any legal proceeding or arbitration will be entitled to recover from the non-prevailing party, as determined by the court or arbitrator, all of its costs and expenses including attorneys’ fees.

Waiver of Jury Trial. Each party acknowledges and agrees that any controversy that may arise under the Order of these Terms is likely to involve complicated and difficult issues and, therefore, each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Order or these Terms.

Assignment; No Waiver. The Order may not be transferred or assigned by Buyer without the prior written consent of the Company. No waiver by either party of any of the provisions of these Terms shall be effective unless explicitly set forth in writing and signed by the party granting the waiver.  Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Terms shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

Subcontracting. The Company may transfer, assign or delegate any of its obligations under the Order or these Terms to any of its affiliates or its or their subcontractors. Notwithstanding any delegation to an affiliate or a subcontractor, the Company remains responsible for all of its obligations under the Order and these Terms.

Severability. If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

Compliance With Law. Acceptance of the Order is conditional on the granting of any required export licenses and import permits. If required, Buyer shall obtain and make available to the Company, when required, import permits and other documents necessary to permit prompt exportation from the United States. Buyer is required to accept and pay for the Product if licenses or permits previously granted are invalidated or revoked or where new restrictions are imposed preventing the exportation of the Product. It is understood that the country indicated in the Order is the ultimate destination of the Products to be sold hereunder.  Buyer agrees to comply with all applicable laws, including export controls, in connection with the transactions contemplated hereby.

Notices. All notices and communications required under these Terms must be in writing and will be deemed given when delivered to the physical or electronic address of the receiving party specified in the Order. Either Party may change its address for notification purposes by giving the other party notice of the new address and the date on which it will become effective.

Translations.  The Order and these Terms are written in English. Notwithstanding any translation thereof, the English language version shall be determinative and control for all purposes.