Standard Terms and Conditions of Sale

Applicability – These terms and conditions of sale (“Terms”), and any Sales Documents accompanying or referencing these Terms, comprise the entire agreement (“Agreement”) between NuMat Technologies, Inc. (“Seller”) and the purchaser (“Purchaser”) with respect to the purchase and sale of NuMat products (“Products”). “Sales Documents” means any document, print or digital, provided by Seller during the sales process, including quotations, invoices, documents confirming, acknowledging, or accepting an order and shipping documents. If the parties have signed a contract applicable to the sale of certain Products, the terms of such contract shall prevail to the extent they are inconsistent with these Terms.

Acceptance – The Agreement between Seller and Purchaser is created when Seller confirms, acknowledges, or begins to fulfill Purchaser’s order. These Terms prevail over any Purchaser’s terms regardless of when such terms are provided. Fulfillment of Purchaser’s order does not constitute acceptance of any of Purchaser’s terms and does not serve to modify or amend these Terms.

Cancellation – Purchaser may not modify or cancel the Agreement without Seller’s express written consent. Modification or cancellation may require payment by Purchaser of certain costs incurred by Seller.

Delivery – Seller shall endeavor to deliver the Products by the quoted date, however delivery dates provided by Seller are non-binding and time of delivery is not of the essence. Seller shall not be liable for any delays, loss, or damage in transit. Unless otherwise agreed in writing, Products are shipped using Seller’s standard packaging and shipping methods, for which fees may apply. Unless otherwise agreed upon in writing by the parties, delivery of Products shall be made CPT Purchaser’s ship-to address (INCOTERMS® 2020), freight costs shall be prepaid by Seller and added to its invoice to Purchaser, and title to Products shall pass to Purchaser upon their arrival at the destination. Seller may, in its sole discretion, make partial shipments of Products and invoice immediately therefor. Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser’s order. 

Price – Purchaser shall purchase Products from Seller at the prices offered by Seller in a valid quotation. Such prices do not include sales, use, and excise taxes, duties, customs, tariffs, or similar taxes or charges imposed by governmental authorities on any amounts payable by Purchaser; and Purchaser shall be responsible for all such taxes and charges. Purchaser shall not be responsible for any taxes imposed on Seller’s income, revenues, gross receipts, personal or real property, or other assets.

Payment – Purchaser shall pay all invoiced amounts within thirty (30) days from date of invoice to Seller’s specified bank account or as otherwise instructed. Purchaser shall not withhold payment of any amounts due and payable hereunder by reason of any set-off of any claim or dispute with Seller.  Purchaser shall pay interest on all late payments at the rate 1.5% per month, calculated daily and compounded monthly. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including attorneys’ fees. 

Inspection – Purchaser shall inspect Products within five days of receipt and notify Seller in writing of any Products which are different than identified in the order confirmation. Seller shall, in its sole discretion, replace the nonconforming Products with conforming Products, or issue a credit for the the nonconforming Products. Purchaser agrees that the remedies set forth herein are the exclusive remedies for delivery of nonconforming Products.

Use of Products – Purchaser shall comply with all instructions, limitations, specifications, use statements or conditions of use made available by Seller, including product data, product information, safety data sheets, limited use information, and labeling (“Use Documents”). Purchaser acknowledges that Products are not tested for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise explicitly stated in Use Documents. Purchaser is solely responsible for obtaining any necessary intellectual property permission related to the use of Products, compliance with all applicable regulatory requirements and generally accepted industry standards, and conducting all necessary testing and verification, including fitness for the intended purpose. If the applicable Use Documents indicate that the Products are offered and sold for research and development purposes only, Purchaser has no express or implied authorization from Seller to use such Products for any other purpose. Purchaser shall not market, distribute, resell, or export Products for any purpose, unless otherwise agreed by Seller in writing.

Limited Warranties – Seller warrants that Products will conform to Seller’s published specifications for one year from the date of shipment of Products or the remaining shelf life of the Product, whichever is shorter. Except for the warranties set forth above, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, or infringement of intellectual property rights of a third party. Any suggestions by Seller regarding use, selection, application, or suitability of Products shall not be construed as an express or implied warranty.  Subject to the conditions set forth above, Seller shall, in its sole discretion either repair or replace Products and if Seller is unable to repair or replace, Seller shall credit the price of such Products. The remedies set forth herein shall be Purchaser’s sole and exclusive remedy and Seller’s entire liability for any breach of its warranty.

Returns – Purchaser shall not return Products without Seller’s prior written consent. Seller reserves the right to inspect Products at Purchaser’s site and to require disposal instead of return. All returns must comply with Seller’s instructions and may be subject to a restocking charge. Certain custom Products or special orders may not be returned under any circumstances. 

Limitation of Liability and Indemnification – Purchaser assumes all risk and liability for loss, damage, or injury to persons or to property of Purchaser or others arising out of the transport, storage, or use of Products, including infringement of any third-party intellectual property rights resulting from Purchaser’s specific use of Products. Purchaser shall indemnify and hold Seller, its affiliates, and their respective agents, employees, and representatives, harmless from and against all claims, damages, losses, costs and expenses (including attorney’s fees) arising from or in connection with the transport, storage, sale, or use of Products, resulting from Purchaser’s breach of the Agreement, or arising from the negligence, recklessness or misconduct of Purchaser, its affiliates, or their respective agents, employees, partners or subcontractors. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER SHALL NOT INDEMNIFY NOR BE LIABLE TO PURCHASER OR ANY PERSON OR ENTITY FOR ANY CLAIM, DAMAGE OR LOSS ARISING OUT OF THE PRODUCTS, INCLUDING THE SALE, TRANSPORT, STORAGE, FAILURE, USE OR DISTRIBUTION THEREOF REGARDLESS OF THE THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO WARRANTY, NEGLIGENCE OR STRICT LIABILITY. IN ADDITION, SELLER SHALL NOT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY, OR SPECIAL DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, LOSS OF REVENUE OR PROFITS, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, OR ANY LIABILITY OF PURCHASER TO A THIRD PARTY. The total liability of Seller hereunder shall not exceed the purchase price of the Products involved. Without limiting the provisions regarding and limiting warranty claims hereunder, all claims must be brought within one year of delivery of Products regardless of their nature.

Compliance with Laws – The parties shall comply with all applicable laws, regulations, and ordinances, including those pertaining to the following: export control, pharmaceutical, cosmetic and food preparations, electrical or electronic waste, introduction or production and use of chemical substances (e.g. Toxic Substances Control Act, REACH), and bribery and corruption (e.g. Foreign Corrupt Practices Act). Any Products or technical information provided under this Agreement may be subject to U.S. export controls and the trade laws of other countries. The parties agree to comply with all applicable export control regulations and to obtain any required licenses or item classification to export, re-export, or import deliverables. The parties agree not to export or re-export to entities on the current U.S. export exclusion lists or to any embargoed or terrorist supporting countries as specified in the U.S. Export Administration Regulations (EAR). Purchaser agrees not to use Products for prohibited nuclear, missile, or chemical biological weaponry end uses as specified in the EAR.  Purchaser will advise Seller in writing within three calendar days of any actual or perceived non-compliance with applicable export control laws and regulations (to include sanction and embargo laws).  

Termination – In addition to any other remedies provided hereunder, Seller may immediately terminate the Agreement upon written notice if Purchaser fails to pay any amount when due, has not otherwise performed or complied herewith in whole or in part, becomes insolvent, files a petition for bankruptcy, or commences proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

Confidential Information – All non-public, confidential, or proprietary information, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Purchaser, 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” is confidential and may not be disclosed or used by Purchaser for its own use, including but not limited to filing any patent applications disclosing or based on such confidential information, unless authorized in advance in writing by Seller. Upon request, Purchaser shall promptly return or destroy all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.

Intellectual Property – Purchaser acknowledges that Seller owns all brands, trademarks, designs, patents, copyrights, and other intellectual property related to Seller’s Products. This agreement does not grant Purchaser any right or license to manufacture, have manufactured, modify, import, or copy Seller’s Products. Purchaser agrees that it will not, directly or through intermediaries, reverse engineer Seller’s Products. Purchaser agrees that it will reference Seller’s brands only in connection with the sale or use of Products delivered to Purchaser hereunder.

Force Majeure – Neither party will be in default of any obligation under this Agreement (other than obligations to pay money) to the extent performance is prevented or delayed by a Force Majeure Event. A “Force Majeure Event” shall include any occurrence beyond the reasonable control of a party, including without limitation: act of nature (e.g. flood, earthquake, storm); war or terrorism; civil commotion or riot; epidemic or pandemic (e.g. COVID-19); destruction of facilities or materials; fire or explosion; labor disturbance or strike; laws, regulations, directives or orders of any government, regulatory or judicial authority; embargo, shortage of raw materials or labor; equipment failure; or failure of public utilities or common carriers. The party declaring a Force Majeure Event will notify the other party in writing, explaining the nature thereof, and will also notify the other party of the cessation of any such event. A party declaring a Force Majeure Event will use commercially reasonable efforts to remedy, remove, or mitigate such event and the effects thereof. Upon cessation of the Force Majeure Event, performance of any suspended obligation or duty will promptly recommence.

No Waiver – Seller’s failure to insist on performance of any of the terms herein or to exercise any right or privilege or Seller’s waiver of any breach hereunder shall not thereafter waive any other terms of the same or similar type.

Assignment – Purchaser shall not assign any of its rights or delegate any of its obligations under the Agreement without Seller’s prior written consent.

Choice of Law – This purchase order and any contract formed hereunder shall be construed and enforced in accordance with the laws of the State of New York, without regard to conflicts of law rules.