1. DEFINITIONS: The following terms shall have the following meanings: “Agreement” means these Terms and Conditions of Sale, together with the Seller price quote and Seller order confirmation, if any, and expressly excluding any and all Buyer terms or conditions; “Buyer” means a party purchasing any Product; “Consequential Loss” means consequential, indirect, special and incidental Liabilities, and loss of production, manufacturing, revenue, profit, business or opportunity, whether or not such loss was foreseeable; “Law(s)” means laws, statutes, regulations, rules, ordinances, treaties, conventions, orders, judgments, injunctions or decrees of any governmental authority or international conventions, including, without limitation, all those governing import, export, health, safety, environmental protection and anti-bribery; “Liability(ies)” means any and all obligations, actions, causes of action, claims, demands, proceedings, suits, losses, liabilities, damages (including, without limitation, direct, punitive and exemplary), penalties, remediation, fines, costs and expenses, including, without limitation, reasonable attorneys’ fees and costs; “Product(s)” means any product(s) sold by Seller; “Seller” means Element Labs, a California corporation, “Specifications” means Seller’s Product specifications in effect at the time of manufacture of such Product, or such other specifications as expressly agreed to in a writing signed by Buyer and Seller; and “Taxes” means use tax, sales tax, excise tax, value add tax, duty, tariff, stamp, custom, inspection fee, testing fee or any other tax, fee or charge imposed by any governmental authority on any Product or measured by the sale, purchase or use of any Product.
  2. ENTIRE AGREEMENT: This Agreement contains all of the terms and conditions governing the sale of Products by Seller to Buyer, whether initiated by purchase order, electronic means, telephone or any other method. This Agreement replaces in their entirety any previous agreement or terms and conditions between Seller and Buyer, and no modifications hereof or additions hereto shall be binding on Seller unless expressly agreed to in writing signed by an authorized officer of Seller. No modification hereof, or addition hereto, shall be affected by the acceptance of any Buyer purchase order (or other documentation) stipulating different or additional terms or conditions. Seller hereby expressly rejects any and all terms and conditions that are different from, or in addition to, those set forth herein, as these Terms prevail over any of Buyer’s general terms and conditions of purchase. Buyer’s issuance of a purchase order or acceptance of the Product shall be deemed Buyer’s unconditional and irrevocable acceptance of, and agreement with, the terms and conditions set forth herein.
  3. PRICES: Product prices are determined by Seller’s price quote or order confirmation, or in the absence of such documentation, by Seller’s prices current at the time of shipment. Prices apply for quantities shipped at one time. Prices are subject to change without notice, unless otherwise stated in writing by Seller. Buyer shall not disclose any information, including Product pricing, contained in any Seller price quote or order confirmation (all of which constitute Seller’s confidential information) to any third party for any reason. All Product prices are exclusive of all Taxes and such Taxes shall be paid by Buyer in addition to the Product prices.
  4. SHIPPING & HANDLING: Per Incoterms® 2010, all deliveries are [EXW/DDP/FOB] Seller’s facility in Sacramento, CA (the “Delivery Point”).  All loading, shipping, handling and insurance costs shall be paid by Buyer in addition to the Product prices. If Buyer has not specified its desired carrier and associated account information in Buyer’s order, Seller will make a selection on Buyer’s behalf and include the cost thereof in Seller’s invoice. All delivery dates are estimates only. Buyer agrees that a variation of up to 5% in quantity delivered is acceptable to Buyer and shall constitute fulfillment of an order. All risk of loss and damage to Products will pass to Buyer in accordance with the Incoterm specified herein.
  5. RISK OF LOSS: Risk of loss passes to Buyer upon delivery of the Products at the Delivery Point. 
  6. PAYMENT: Seller will invoice Buyer upon shipment of Product. Payment terms are net 30 days of the date of invoice, unless otherwise stated in writing by Seller. Seller reserves the right to make delivery in installments, all such installments to be separately invoiced and paid for when due, without regard to subsequent deliveries. All remittances hereunder shall be made payable in U.S. Dollars to Seller by check or wire without deduction for any Taxes, currency exchange fees or offsets of any kind. Any payment not received within 15 days of the due date shall result in a late charge of 5% of the amount owing and shall bear interest at the rate of 5% (or the maximum allowed by applicable Law, whichever is lower). Buyer shall reimburse Seller for its costs of collection (including reasonable attorneys’ fees and interest) should Buyer fail to pay Seller in a timely manner. Title to the Products shall transfer to Buyer upon Seller’s receipt in full of payment for such Products.
  7. LIMITED WARRANTY: Seller warrants for a period of 6 months to Buyer that Products sold to Buyer will, at the time of delivery, conform to the Specifications in all material respects. This warranty is conditioned upon Buyer’s receipt, handling, storage and maintenance in a normal and proper manner, in accordance with the recommendations of Seller. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THE PRECEDING SENTENCE, (A) ALL PRODUCTS ARE SOLD TO, AND PURCHASED BY, BUYER ON AN “AS IS” BASIS, AND (B) SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY (I) OF MERCHANTABILITY, (II) OF FITNESS FOR ANY PARTICULAR PURPOSE, (III) OF FUTURE AVAILABILITY, OR (IV) THAT BUYER’S USE OF PRODUCT WILL NOT VIOLATE OR INFRINGE THE RIGHTS OF OTHERS. 
  8. LIMIT OF LIABILITY:  IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.  SELLER’S LIABILITY HEREUNDER SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT WITH RESPECT TO WHICH SUCH LIABILITY IS CLAIMED.  THE LIMITATION OF LIABILITY SET FORTH IN ABOVE SHALL NOT APPLY TO (I) LIABILITY RESULTING FROM SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND (II) DEATH OR BODILY INJURY RESULTING FROM SELLER’S ACTS OR OMISSIONS.
  9. RETURNS: Products may not be returned for credit or refund for any reason, except in accordance with this Section. Immediately upon Buyer’s receipt of any Product shipped hereunder, Buyer shall inspect the same and shall notify Seller in writing of any claims for shortages or non-conformance with Specifications and shall hold such Product for Seller’s written instructions concerning disposition. If Buyer fails to notify Seller within 10 days after the Product has been received by Buyer, such Product shall be deemed to have been unconditionally and irrevocably accepted by Buyer. Seller’s sole and exclusive Liability and Buyer’s sole and exclusive remedy with respect to short or non-conforming Product shall be the replacement of such short or non-conforming Product without charge, or refund or credit of the purchase price paid by Buyer, in Seller’s sole discretion, in each case upon the return of such Product to Seller in accordance with Seller’s instructions.
  10. TECHNICAL ASSISTANCE: Seller may, at its sole discretion, provide technical assistance, best practices, guidelines, recommendations, advice, suggestions or other information (whether directly or through Seller’s product literature or web sites) with respect to the Product or its selection, use, application or suitability (collectively, “Technical Assistance”). The provision of Technical Assistance notwithstanding, Buyer (a) acknowledges, that Seller has no control over the use of the Product or the design, testing, manufacturing, use or labeling of any products or materials made using the Products, and (b) agrees that Buyer will sufficiently test and investigate the Products to form an independent judgment of their suitability for Buyer’s intended use and will not assert any Liability against Seller based on any Technical Assistance provided to Buyer. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY TECHNICAL ASSISTANCE PROVIDED BY SELLER. NO TECHNICAL ASSISTANCE SHALL BE CONSTRUED AS AN EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN AUTHORIZED OFFICER OF SELLER.
  11. TERMS OF USE: Products may be the subject of one or more filed U.S. patent and patent applications (and associated foreign equivalents) owned or controlled by Seller. The purchase of a Product from Seller includes a one-time, non-exclusive, non-transferable, non-sublicensable right (which right is subject to and conditioned upon Buyer’s compliance with terms of this Agreement) under any intellectual property owned or controlled by Seller for Buyer to use such Product to make, have made and sell goods and to provide services. No other right or interest in or to any Seller or third-party proprietary or intellectual property is granted, expressly or by implication, by this Agreement, the acceptance of any order, the delivery of any Product or otherwise. Buyer hereby covenants and agrees that it will (a) transport, handle, store and use Products (and any products or materials made therewith) in compliance with any and all applicable Laws, (b) not reverse engineer or analyze the Product for chemical or structural composition, and (c) not use the Product in violation or infringement of any patent or other intellectual property right of any third party. In the event Buyer breaches any terms or conditions of this Section, Seller shall be entitled to injunctive relief (without any requirement to post bond or other security) from further breach, in addition to any other remedies available to Seller at law or in equity.
  12. EH&S: Buyer acknowledges that Products may be or contain toxic or hazardous materials. Buyer shall familiarize itself with the transportation, handling, storage and use recommendations and requirements, as well as any hazards, set forth in all Product safety data sheets (“SDSs”). Buyer shall provide Product SDSs to all those required by Law to receive same and to inform and train its employees with respect to the contents thereof. Buyer acknowledges that Products may not be approved by, or registered with, applicable regulatory agencies. Without limiting the foregoing, the Product may not be on the Toxic Substances Control Act (“TSCA”) inventory or registered under EU regulations concerning the Registration, Evaluation, Authorization and Restriction of Chemicals (“REACH”). Buyer assumes any and all responsibility to assure that Buyer’s intended use of Products complies with applicable Laws, including, without limitation, under TSCA and REACH, if applicable.
  13. RELEASE AND INDEMNITY: Buyer hereby releases, indemnifies, defends and holds harmless Seller, its affiliates and licensors and their respective stockholders, directors, trustees, officers, employees, contractors and agents (“Indemnitees”), from and against any and all (a) consequential loss by Buyer, (b) Liability arising from or relating to Buyer’s breach of this Agreement, and (c) Liability arising from or relating to the transportation, handling, storage, possession, use, subsequent sale, or release of any Product (or any products or materials made therewith), by the Buyer of any third party, including, without limitation, any claim of product liability, contamination, pollution, personal injury, sickness, death, property damage or violation or infringement of any patent or other intellectual property right of any third party.
  14. FORCE MAJEURE: Seller shall have no Liability resulting from a delay in performance or non-performance under this Agreement directly or indirectly caused by circumstances beyond Seller’s control, including, without limitation, acts of God, act of government, fire, explosion, flood, war, accident, equipment failure, labor shortage or inability to obtain material, equipment or transportation. If Seller is unable, for any reason, to supply the total demands for the Product specified in Buyer’s order, Seller may allocate its available supply among any or all buyers on such basis as Seller may determine, without liability for any failure of performance that may result therefrom. Quantities so affected may be eliminated from this Agreement without liability, but this Agreement shall remain otherwise unaffected, provided that, if the event in question continues for a continuous period in excess of 270 days, Buyer shall be entitled to give notice in writing to Seller to terminate this Agreement.
  15. MISCELLANEOUS: Buyer represents and warrants to Seller that Buyer carries and maintains comprehensive general liability insurance with commercially reasonable coverage and any other insurance required by Law. All rights and remedies under this Agreement are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. The failure of Seller to enforce any term or condition of this Agreement will not constitute a waiver of Seller’s rights to enforce subsequent breaches of any term or condition under this Agreement. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, that provision will be deemed stricken and the remaining provisions of this Agreement will nevertheless remain in full force and effect. Any subsequent sale, assignment or transfer of any Product shall be subject to this Agreement, which shall be binding on such purchaser, assignee or transferee Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. The provisions of this Agreement shall survive the delivery of the Product to Buyer indefinitely. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.  
  16. GOVERNING LAW: This Agreement will be deemed to have been entered into and shall be governed by and construed in accordance with the Laws of the United States and the State of California, without reference to principles of conflicts of law. The United Nations Convention on Contracts for the International Sale of Goods is expressly excluded and shall not apply to the sale of any Products. Any action or proceeding brought by any party against another party arising out of or related to this Agreement will be brought in a state or federal court of competent jurisdiction located in Los Angeles County, California and each party hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
  17. TERMINATION: In addition to any remedies that may be provided under these Terms, Seller may terminate the Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.