1. Governing Provisions. This document is an offer or counter-offer by Inhance Technologies LLC or Advance Research Chemicals, Inc. (“Seller”) to sell the products and/or services (collectively, the “Products”) described in the accompanying Order Confirmation provided by Seller to buyer (“Buyer”) herewith (the “Seller Document”) in accordance with these terms and conditions (these “Terms”), is not an acceptance of any offer made by Buyer, and is expressly conditioned upon Buyer’s assent to these Terms. Seller hereby objects to any additional or different terms contained in any request for proposal, purchase order, acknowledgement or other communication previously or hereafter provided by Buyer to Seller. No such additional or different terms or conditions will be of any force or effect. These Terms and any consistent terms in the Seller Document, together, shall be referred to herein as the “Agreement” and will be the entire agreement between Seller and Buyer on the subject of the transaction described herein and therein; there are no conditions to the Agreement that are not so contained or incorporated.

THE NEGOTIATION, PERFORMANCE, AND ENFORCEMENT OF THE AGREEMENT WILL BE GOVERNED BY AND CONSTRUED ACCORDING TO THE SUBSTANTIVE AND PROCEDURAL LAWS OF THE STATE OF DELAWARE AND THE U.S. (WITHOUT REFERENCE TO PRINCIPLES OF CONFLICTS OF LAWS). THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER WILL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Buyer and Seller each irrevocably and unconditionally agree that the sole and exclusive forum and venue for any legal or equitable action or proceeding arising out of or in connection with the Agreement will lie in the United States District Court or the courts of the State of DELAWARE and each party hereby irrevocably and unconditionally submits to the sole and exclusive personal jurisdiction of such courts. No accepted offer may be cancelled or altered by Buyer except upon terms and conditions accepted by Seller in writing, and no changes to the Agreement will be binding unless set forth in writing and manually signed by Seller. Neither Buyer’s acceptance of this offer nor any conduct by Seller (including but not limited to shipment of Products) will oblige Seller to sell to Buyer any quantity of Products in excess of the quantity that Buyer has committed to purchase from Seller at the time of such acceptance or conduct.

2. Changes. In the event Buyer selected the applicable Product from Seller’s pre-set catalogue of products and services, Seller may at any time make such changes in the specifications of such Products as Seller deems appropriate, with thirty (30) days’ notice to Buyer and any Products so changed or modified shall be considered Products hereunder in fulfillment of Seller’s obligations. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority, or nonavailability of materials from suppliers.

3. Delivery and Claims. Unless otherwise provided in the Agreement, Products shall be delivered to Buyer F.O.B. Seller’s loading dock (as defined in the DELAWARE Uniform Commercial Code) or, for ultimate destinations outside of the U.S., EXW Seller’s loading dock (as the latter shipping term is defined in Incoterms 2020). Delivery of Products to the carrier will constitute delivery to Buyer, and regardless of shipping terms or freight payment, Buyer will bear all risk of loss or damage in transit. Seller reserves the right to make delivery in installments, unless otherwise expressly stipulated herein; all such installments to be separately invoiced and paid for when due per invoice, without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Buyer of its obligations to accept remaining deliveries. All delivery dates are approximate.

Buyer shall inspect Products upon delivery thereof. Buyer shall either accept such Products or reject such Products at the time of delivery thereof, it being understood that Buyer shall be entitled to reject Product only if such Product is not in conformance with the warranties set forth in Section 13 of these Terms. Buyer will be deemed to have accepted any Products that Buyer does not reject at the time of delivery thereof. Claims for shortages or other errors in delivery must be made in writing to Seller within ten (10) calendar days after receipt of shipment, and failure to give such notice will constitute unqualified acceptance and a waiver of all such claims by Buyer. Claims for loss of or damage to Products in transit must be made to the carrier, and not to Seller.

4. Force Majeure; Allocation of Limited Supply. Seller shall be excused from, and shall not be liable for any losses or damages as a result of any delay in delivery or non-delivery, or failure to perform in whole or in part due to any cause beyond Seller’s reasonable control, whether foreseeable or unforeseeable, including but not limited to any act of God or act of Buyer; embargo or other governmental act, regulation, or request; epidemic, pandemic, or quarantine; fire, earthquake, flood, or accident; war, act of terrorism, or riot; delay in transportation, defaults of common carriers, or interruption in power or communications; strike, slowdown, or other labor difficulties; or inability to obtain necessary labor, materials, or manufacturing facilities at a commercially reasonable price. In the event of any such delay, (a) the date of delivery will be extended for a period equal to the time lost because of the delay plus such additional time as may be reasonably necessary to overcome the effect of the delay and (b) Seller will be entitled to terminate any or all purchase orders and/or the Agreement.

If the occurrence of a contingency the non-occurrence of which was a basic assumption on which Seller’s agreement to sell hereunder was predicated affects only a part of Seller’s capacity to perform Seller’s contracts with Buyer and others, and to provide for Seller’s internal use, for similar products or services, Seller will allocate its available capacity first to the satisfaction of its internal needs and then in any manner that Seller determines, in good faith.

Notwithstanding anything to the contrary contained in the Agreement, to the extent Seller’s costs of performance are increased, directly or indirectly, by one Force Majeure Event or by a series of Force Majeure Events, Seller will be entitled to adjust the prices or to apply a surcharge, in each case to recoup those costs plus Seller’s customary profit, by providing written notice to Buyer. 

Unless otherwise agreed by Seller in writing, if Seller is unable to purchase raw materials at a commercially reasonable price or in the event it elects, in its reasonable discretion, to cease or suspend the operation of any facility where it is producing any quantity of the material delivered hereunder, Seller shall be so excused from its obligations. Quantities so affected by any such cause may be eliminated from the Agreement without liability, but the Agreement shall otherwise remain unaffected. In addition, if, because of any such circumstances, there should be a shortage of any material covered by the Agreement, Seller may, but shall not be obligated to, purchase replacement material in the marketplace, to change its supply point for the Buyer, or change the facility where the material is manufactured in order to satisfy any obligations hereunder, and in each such case shall be entitled to increase the prices of the Products to recoup increased costs related to such purchase of replacement material or change in supply point or facility. Without limiting the generality of this Section, notwithstanding anything to the contrary contained in this Agreement, if Seller is unable to procure the needed quantity of raw materials at commercially reasonable prices (as determined by Seller), in quantities, and on a timeframe that would enable Seller to timely deliver the Products to Buyer hereunder, (i) Seller shall be excused from performance of its obligations under this Agreement until Seller is able to so procure the necessary quantity of raw material at commercially reasonable prices, and (ii) Seller shall be entitled to, at its option and without bearing liability to Buyer therefor (A) extend the relevant delivery or performance dates by the amount of time that Seller was delayed as a result of such shortage; (B) decrease the quantities of Products that it has agreed to supply to Buyer; (C) use alternative forms of raw materials in the production of the Products for Buyer; and/or (D) increase prices on Products to recoup the costs incurred by Seller to procure substitute raw materials.

5. Prices, Taxes and Other Charges. Unless otherwise provided in the Agreement, prices shall be as quoted by Seller, and such quoted prices are subject to change by Seller without notice. All prices listed in Seller’s publications (including on Seller’s website) are intended as a source of general information only and not as an offer to sell, and all prices contained therein are subject to confirmation by formal quotation by Seller. No order shall be binding upon Seller until received and accepted by Seller in its sole discretion. All prices, and amounts payable, under the Agreement are in U.S. Dollars. Any manufacturer’s tax, occupation tax, use tax, sales tax, excise tax, value added tax, duty, custom, inspection or testing fee, or any other tax, fee, interest, or charge of any nature whatsoever imposed by any governmental authority on or measured by the transaction between Seller and Buyer will be paid by Buyer in addition to the prices quoted or invoiced. In the event Seller is required to pay any such taxes or other charges, Buyer will reimburse Seller therefor on demand. If Seller incurs increased costs including, but not limited to, increases in costs caused by tariffs, inflation, transportation, raw material shortages, labor costs, and/or machinery costs, Seller may, after an Order Confirmation is issued, increase prices on Products to recoup those costs plus Seller’s customary profit, whether before or after acceptance of an order by Seller, by providing written notice to Buyer at least two (2) weeks prior to the expected shipment date of the Products (an “Equitable Price Change”). No later than five (5) calendar days after Buyer’s receipt of such notice, Buyer shall have the right to notify Seller in writing of Buyer’s objection to the Equitable Price Change (“Buyer Objection”); provided, however, that for raw materials incorporated in the Products that, in Seller’s determination, are subject to extraordinarily volatile pricing, Seller may provide notice to Buyer of an Equitable Price Change with respect to such raw materials that requires Buyer provide a Buyer Objection within one (1) business day, provided further that such Equitable Price Change notice specifies that the applicable Equitable Price Change is with respect to one or more raw materials requiring an accelerated notice period. Unless a Buyer Objection is timely received by Seller, Buyer shall be deemed to have accepted the Equitable Price Change. Upon Seller’s receipt of timely written notice of a Buyer Objection, Seller may, without bearing liability to Buyer therefor, either (a) cancel the applicable order immediately upon notice to Buyer, or (b) supply the Products to Buyer in accordance with the order without giving effect to the Equitable Price Change. 

6. Credit Approval; Payment Terms; Storage. All payment terms set forth in this document are subject to Seller’s approval of Buyer’s credit, in Seller’s discretion; if such approval is withheld, payment will be due in advance of Seller’s performance. Except as otherwise provided in the Agreement or in the preceding sentence, payment is due upon Buyer’s receipt of Seller’s invoice following shipment. Interest will be charged at the lesser of (a) eighteen percent (18%) per year, or (b) the highest rate permitted by applicable law, on accounts more than thirty (30) calendar days past due. If production or shipment of completed Products, or other Seller performance, is delayed by Buyer, Seller may immediately invoice, and Buyer will pay, the percentage of the purchase price corresponding to the percentage of completion; in addition, Buyer will compensate Seller for storage of completed Products or work in process during any such delay, whether stored at Seller’s facility or an independent storage company’s facilities.

7. No Returns. Except as otherwise agreed to in writing by Seller, no Products will be accepted for return.

8. Intellectual Property. All intellectual property rights (including, without limitation, patents, trademarks, registered designs, and any rights to apply for the same, copyright, design rights, database rights, rights in and to confidential information and know-how), and any rights analogous to the same anywhere in the world and existing at any time in Products or arising out of or relating to the design or manufacture of Products or the provision of services shall belong to and remain vested in Seller. Nothing in the Agreement grants to Buyer any right, title or interest in or to Seller’s intellectual property.

9. Confidential Information. Any and all designs, drawings, sketches, models, blueprints, plans, or samples; devices, machinery, specifications, part numbers, bills of materials, or business and financial records; processes, techniques, expertise, plans, and projections; and other similar information, items, documents, and materials made available by Seller or its affiliates to Buyer or its affiliates, or otherwise acquired, obtained or developed by Buyer under or in connection with these Terms (collectively, the “Confidential Information”) are and at all times shall remain the exclusive property of Seller. “Confidential Information” shall not include any item of information that Buyer can demonstrate by documentary evidence: (a) is or has become public knowledge, whether by publication or otherwise, through no act, omission or fault of Buyer or any of its employees, officers, directors, agents or affiliates, or (b) is disclosed to Buyer by a third party who is in lawful, rightful possession of the information and who has the legal right to make disclosure thereof without confidentiality restrictions. During the Confidentiality Period, Buyer agrees that it shall not (i) make any use whatsoever of the Confidential Information except for the purpose(s) specified in these Terms, or (ii) disclose the Confidential Information to any third party. The “Confidentiality Period” shall mean the period beginning on the date of disclosure to Buyer and ending three (3) years after the date that Seller accepts the last purchase order submitted by Buyer, except that the parties’ obligations with respect to Confidential Information that constitutes trade secrets under applicable law will continue until the date on which such information no longer constitutes trade secrets under applicable law. Buyer acknowledges and agrees that money damages for any and all breaches of Buyer’s obligations under this Section are both incalculable and insufficient and that any such breach would irreparably harm Seller. Therefore, in the event of an actual or prospective breach of any such obligation, Seller shall be entitled to seek a permanent and/or preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Section against Buyer in addition to any other remedies to which Seller may be entitled at law or in equity.

10. Government Contracts. If the provision of Products by Seller under accepted orders is subject to mandatory provisions of U.S. law concerning contracts or subcontracts with or for the benefit of the U.S. or any state government, Buyer shall so notify Seller in advance of order acceptance specifying the mandatory provisions of U.S. or state law which apply.

11. Designs and Tools. Any design work performed by Seller for the Buyer, including but not limited to, engineering drawings, design, manufacturing equipment, chemical manufacturing routes or other tools, in connection with its performance hereunder will be and remain the sole property of Seller. Any additional charges to Buyer for any such services does not convey title, or right of possession or any other right. All such intellectual property is exclusive property of the Seller.

12. Warranties. Seller warrants that the Products shall meet the specifications set forth in the applicable Seller Document and be free of defects in materials and workmanship, subject to reasonably allowable variances, as of the date of delivery, appearing within fifteen (15) days after the delivery of the Products to Buyer by Seller (the “Warranty Period”). If, within the Warranty Period, any such Products shall be proved to Seller’s satisfaction to be defective, Seller shall, at its option: (a) repair or replace the affected part free of charge, at Seller’s expense and risk of loss, and send such repaired or replaced part of the Product to Buyer, or (b) refund to Buyer the price paid by Buyer for such defective Products. Such repair, replacement or refund (whichever Seller determines, in its discretion, to provide) shall be Seller’s sole obligation and Buyer’s exclusive remedy for any deficiency in Products furnished hereunder, and shall be conditioned upon Buyer’s return of such Products to Seller or, in Seller’s sole discretion, inspected in the field by a Seller-authorized representative, in either case at Buyer’s expense and risk of loss. Any parts of Products repaired or replaced under this warranty are warranted only for the balance of the Warranty Period on the original part that was repaired or replaced.

SELLER WARRANTIES SET FORTH IN THIS SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.

SELLER PROVIDES ANY AND ALL SERVICES ON AN “AS-IS” BASIS AND SELLER MAKES NO REPRESENTATIONS OR WARRANTIES EXPRESS OR IMPLIED WITH RESPECT TO SERVICES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTIABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN CONNECTION WITH THE AGREEMENT.

13. Buyer’s Indemnity. Buyer shall indemnify, defend and hold harmless Seller and its officers, agents, and employees from and against any and all losses, damages (including damages arising from personal injury or death), liabilities, costs, and expenses (including attorneys’ fees) that may arise out of Buyer’s acts or omissions, including, but not limited to: (a) any breach by Buyer of the Agreement, (b) any violation by Buyer of any law, rule or regulation, (c) any use or resale of the Products by Buyer, including, without limitation, the addition of, or the presence of, or use of the Products with, any perfluoroalkyl and polyfluoroalkyl substances or other chemical substances, (d) any negligence or willful misconduct of Buyer, and/or (e) any claim of patent, trademark, copyright or trade secret infringement, or infringement or any other proprietary rights of third parties to the extent that any Products are manufactured in accordance with drawings, designs or specifications proposed or furnished by Buyer. Seller shall give Buyer written notice of any claim for which indemnification is sought under the Agreement, provided that the failure to give such written notice shall not, however, relieve Buyer of its indemnification obligations, except and only to the extent that Buyer forfeits rights or defenses by reason of such failure. Seller, may, at Seller’s option, assume and control the defense of the claim, and in such case, Buyer shall indemnify Seller from and against losses, damages, costs, and expenses (including attorneys’ fees, court fees, and other defense costs) incurred by Seller in defending such claims. If Seller decides not to assume the defense of a claim, then Buyer shall assume and control the defense of such claim, at Buyer’s expense and by Buyer’s own counsel (which counsel shall be subject to the approval of Seller, which approval will not be unreasonably withheld or delayed); provided that Seller shall have the right to participate in the defense of any claims with counsel selected by it at Seller’s expense. Seller and Buyer shall cooperate with each other in all reasonable respects in connection with the defense of any claims. Notwithstanding any other provision of this Agreement, Buyer shall not consent to the entry of any judgement or enter into any settlement of any claims without the prior written consent of Seller. 

14. Limitation of Liability. SELLER SHALL NOT BE LIABLE, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER ANY OTHER THEORY OF LAW OR EQUITY, FOR ANY SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING LOSS OF PROFITS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, AND (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property damages, penalties, special damages, damages for lost revenues, down-time, lost good will, cost of capital, cost of substitute products, or for any other types of economic loss, or for claims of Buyer’s customers or any third party for any such damages, costs or losses. Seller shall not be liable to Buyer for any amount with respect to any order of Products that, in combination with all claims by Buyer against Seller related to such order of Products, exceeds the total price for such order of Products. SELLER WILL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR UNDER OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO PRODUCTS OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. The liability of Seller to Buyer, whether in contract, warranty, tort (including negligence and strict liability) or otherwise, is exclusively limited to the remedies expressly provided under the terms of the Agreement, in lieu of any and all other remedies at law or in equity. No suit or action shall be brought against Seller more than one (1) year after the delivery of that portion of the Products that gave rise to the claim. 

15. Export Controls. The Products may be subject to US export control laws and regulations, including the Export Administration Regulations (EAR) and the International Traffic in Arms Regulations (ITAR). Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Products to any jurisdiction or country to which, or any party to whom, or for any use for which, the export, reexport, or release of any Product is prohibited by applicable federal laws and regulations. Buyer shall be responsible for any breach of this Section by its, and its successors' and permitted assigns, employees, officers, directors, customers, agents, distributors, resellers, or vendors. Buyer shall comply with all applicable federal laws and regulations, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Products. Buyer shall provide prior written notice of the need to comply with such laws, regulations, and rules to any person, firm, or entity which it has reason to believe is obtaining any such Products from Buyer with the intent to export or reexport.

16. Insurance. At Buyer’s expense, Buyer agrees to carry, with reputable insurance companies, insurance coverage of the types and in the amounts reasonably requested by Seller from time to time. Buyer shall ensure that Seller is named as an additional insured and as a loss payee on such insurance policies, and Buyer shall provide Seller with certificates of such insurance upon request.

17. Cumulative Remedies. Seller’s rights and remedies under the Agreement are cumulative and in addition to all other rights and remedies available to Seller at law or in equity.

18. Compensation to Seller’s Agents. No employee or other agent of Seller is permitted to solicit or accept any compensation or payment from any purchaser, however characterized, in connection with the placement of any order.

19. No Assignment. Buyer shall not assign its rights or delegate its duties under the Agreement. Any such attempted assignment or delegation shall be null and void.

20. Severability. If any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable law, such invalidity, illegality or unenforceability will not affect any other provision of this Agreement, and such invalid, void or otherwise unenforceable provisions shall be null and void.

21. Relationship of Parties. Buyer and Seller are independent contractors, and nothing herein shall be construed to create a partnership, joint venture, agency, or employment relationship. Neither party has nor will have any power to bind the other, or to assume or create any obligation or responsibility, express or implied, on behalf of the other party.

Updated August 2024