Terms & Conditions of Sale

Great Western Inorganics, Inc. (the “Seller” or “GWI”) is engaged in the business of manufacturing, repackaging, and/or distribution of chemicals and materials to its customers.

The Terms and Conditions (the “Terms”) are incorporated into any purchase order (“Order”) that is executed by GWI and the Customer and shall be deemed accepted by the Seller’s commencement of performance, provision of services, shipment of products (“Services” and “Products”), or other indication of agreement, whichever occurs first, and shall constitute acceptance of this Order and all of its terms and conditions (the “Acceptance Date”).

By using the Seller’s products or services, you (the “Customer”) agree to be bound by the following Terms which together with any Order, comprises the entire agreement (“Agreement”) between GWI and the Customer. Any provisions contained in any document issued by the Customer are expressly rejected and if the Terms in this Agreement differ from the terms of the Customer’s offer, this document shall be construed as a counteroffer and shall not be effective as an acceptance of Customer’s document. This is the complete and exclusive statement of the contract between Seller and Customer with respect to Customer’s purchase of the Products. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by GWI and Customer. The Seller’s failure to object to terms contained in any subsequent communication from Customer will not be a waiver or modification of the terms set forth herein. All orders are subject to acceptance in writing by an authorized representative of GWI.

1. Pricing

All prices published by the Seller or quoted by the Seller’s representatives may be changed at any time without notice. All prices quoted by the Seller or the Seller’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for Products will be as specified by the Seller or, if no price has been specified or quoted, will be the Seller’s price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of the Seller’s original price quotation.

2. Product Specifications

Product specifications may be subject to change without prior notice.

3. Payment Terms

The Seller may invoice Customer upon shipment for the price and all other charges payable by Customer in accordance with the terms herein. If no payment terms are stated on the face of the Order, payment shall be net thirty (30) days from the date of invoice. If Customer fails to pay any amounts when due, Customer shall pay Seller interest thereon at a periodic rate of two percent (2.0%) per month (or the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys’ fees and costs) incurred by GWI in collecting such overdue amounts or otherwise enforcing its rights hereunder. GWI reserves the right to require from the Customer full or partial payment in advance if GWI believes in good faith that Customer’s financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars. Failure to pay in established terms would result in delay of order delivery and subject to account review.

4. Taxes and Other Charges

Prices for the Products exclude all sales, value added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products, all which of the taxes and duties must be paid by the Customer.

5. Order Cancellation & Product Return Policy

Non-returnable products include controlled substances, temperature-sensitive products, sterile products, bulk orders, and other special custom order products such as certain items not traditionally stocked in GWI warehouses. Products that have already been shipped from GWI facility or are in staged/picked status may not be cancelled. If the product is not available in a timely manner as determined by GWI then cancellation requests would be considered on a case-by-case basis.

Returned items are subject to a minimum [25%] restocking fee plus return shipping fees. Requests to return products must be made within [15] days of receipt for U.S. orders and within [30] days for international shipments.

Credits are not offered after products are returned without prior written consent by GWI.

6. Damaged Shipments

GWI reserves the right to repair (investigate) damaged product before replacement or credit is determined.

7. Product and Service Warranties and Limitation of Liability

• GWI warrants to Customer that all products provided to Customer pursuant to this agreement (each a “Product”, and collectively, the “Products”) will meet the manufacturer’s specifications for a term equal to the warranty period stated in the Product manufacturer’s literature or sixty (60) days, whichever is longer.
• If any Product or service warranted hereunder is proven to be defective or non-conforming, the Seller’s sole liability and the Customer’s sole remedy hereunder shall be for GWI, to repair or, at GWI’s option,

1. replace (or re-perform the Service), at no cost to the Customer, any such defective or non-conforming Product with a non-defective or conforming Product (as applicable) or
2. credit the Customer’s account for all amounts paid with respect to the defective or non-conforming Product or Service upon GWI’s receipt of the defective or non-conforming Product. In the event of replacement, the replacement Product will be warranted for the remainder of the original warranty period or ninety (90) days, whichever is longer.

• In no event shall the Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of

3. normal wear and tear,
4. accident, disaster or event of force majeure,
5. misuse, fault or negligence of or by the Customer
6. Customer use of the Product in a manner for which they were not designed
7. Causes external to the Products such as, but not limited to, power failure or electrical power surges, or
8. improper storage and handling of the Products. Any installation, maintenance, repair, service, relocation or alteration to or of, or other tampering with, the Product performed by any person or entity other than Seller without Seller’s prior written approval, or any use of replacement parts not supplied by Seller, shall immediately void and cancel all warranties with respect to the affected Products.

The Seller’s warranty shall be limited to Products which are defective or non-conforming, which is defined as a Product which is outside of the manufacturer’s defined Product specifications. Defective or non-conforming product does not include Products that fail to meet any fitness of use by Customer or any unique Customer operating conditions or applications.

• The obligations created by the warranty statement to repair or replace a defective Product shall be the sole remedy of Customer in the event of a defective Product.

GWI HEREBY DISCLAIMS ALL OTHER WARRANTIES OR GUARANTEES WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SUITABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Any warranties or claims expressed or implied, by GWI for its products are valid only if they are sold directly to the Customer by GWI or sold through one of the US or worldwide distributors authorized by GWI.

Products supplied by Seller that are obtained by Seller from an original manufacturer or third-party supplier are not warranted by Seller, but Seller agrees to assign to Customer any warranty rights in such Product that Seller may have from the original manufacturer or third-party supplier to the extent such assignment is allowed by such original manufacturer or third-party supplier.

8. Limitation of Liabilities

Notwithstanding anything to the contrary contained herein, the liability of the Seller under these terms and conditions (whether by reason of breach of contract, tort, indemnification, or otherwise, but excluding liability of Seller for breach of warranty (the sole remedy for which shall be as provided under Warranty above) shall not exceed an amount equal to the total purchase price theretofore paid by Customer to Seller with respect to the Product. Notwithstanding anything to the contrary contained herein, in no event shall the Seller be liable for any indirect, special, consequential or incidental damages (including without limitation damages for loss of use of facilities or equipment, loss of revenue, loss of data, loss of profits or loss of goodwill), regardless of whether the Seller has been informed of the possibility of such damages and/or is negligent.

9. Indemnification

The Customer agrees to defend, indemnify and hold GWI, it officers, directors, employees and agents harmless from and against all claims, actions, lawsuits, including GWI attorneys’ fees, expenses, and costs of litigation, arising from Customer’s purchase or subsequent sale or transfer of a Product or to any breach Customer’s obligations under this Agreement. Customer agrees that its duty to defend, indemnify and hold GWI harmless arises at the first notice of a claim, action, or lawsuit. Customer agrees that its duty to defend, indemnify and hold GWI harmless applies to any attorneys’ fees, expenses, and costs of litigation incurred or paid by GWI to enforce this Section 9. Section 9 shall survive termination and cancellation of this Agreement.

10. Proprietary Information

Customer agrees that all pricing, discounts and technical information that the Seller provides to Customer are the confidential and proprietary information of Seller. Customer agrees to

• keep such information confidential and not disclose such information to any third party, and
• use such information solely for Customer’s internal purposes and in connection with the Products supplied hereunder.

Nothing herein shall restrict the use of information available to the general public. The Customer shall inform its employees, agents, and representatives of these obligations and shall require them to assume equivalent obligations.

11. Termination

This Agreement may be terminated by either party with agreed upon written notice delivered to the other party; This termination will only apply to Purchase orders that are not in shipment to facility or at Sellers warehouse. In the event of any termination or expiration of this Agreement, Customer shall be billed immediately for Products shipped through the effective date of such termination or expiration and all custom Products purchased for Customer in the Seller’s inventories at such date, and Customer shall pay the invoiced amount immediately upon receipt of such invoice.

12. Delivery, Cancellation and Changes by Customer

The Products will be shipped to the destination specified by Customer, F.O.B. Seller’s shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Delivery of all orders will be FCA (INCOTERMS 2000). Shipping and handling fees, special packaging materials, carrier surcharges and hazardous material fees imposed by government regulations will be added separately to the invoice. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if the Customer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping and delivery dates are approximate only, and the Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller’s reasonable control. In the event of a delay due to any cause beyond the Seller’s reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period, and Customer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Orders in process may be canceled only with Seller’s written or verbal consent and upon payment of Seller’s cancellation charges and/or restock fees, where applicable. Orders in process may not be changed except with Seller’s written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price, therefore.

Notwithstanding the trade terms indicated above and subject to Seller’s right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Customer upon delivery of possession of the Products by Seller to the carrier.

13. Miscellaneous

a) Severability

If any term or provision of this Agreement or any application thereof shall be held invalid or unenforceable, the remainder of this Agreement and any application of the terms and provisions shall not be affected thereby but shall remain valid and enforceable.

b) Governing Law

This Agreement is made pursuant to and shall be construed and enforced exclusively in accordance with, the laws of the State of California, without regard to conflicts of law.

c) Dispute Resolution

Any dispute among the parties hereto arising in connection with this Agreement shall be submitted to binding arbitration before Judicial Arbitration and Mediation Services, Inc. (“JAMS”) (or another alternative dispute resolution service provider chosen by the parties) for resolution. Such arbitration shall be conducted in Alameda County, California, and the arbitrator will apply California law, including federal law as applied in Colorado courts. The arbitration shall be conducted in accordance with the JAMS Comprehensive Arbitration Rules and Procedures (or, if a JAMS Neutral is not the arbitrator, the rules of the organization who is the arbitrator), except as modified by this Agreement. The arbitration shall be conducted by a single arbitrator selected by JAMS, who shall have experience in the field of business disputes. Any dispute over arbitrability shall be determined by the arbitrator. The award of the arbitrator shall be final and binding on the parties, and judgment on the award shall be confirmed and entered in any state or federal court located in the State of California. The fees and costs of the arbitrator shall be split evenly between the parties, but the prevailing party shall reimburse the non-prevailing party for such costs. The arbitration shall be conducted on a strictly confidential basis, and the parties shall not disclose the existence of a claim, the nature of a claim, any documents, exhibits, or information exchanged or presented in connection with such a claim, or the result of any claim (collectively, “Arbitration Materials”) to any third party, with the sole exception of their respective legal counsel, who also shall be bound by the terms of this Agreement. In the event of any court proceeding to challenge, enforce, or recognize an arbitrator’s award, the parties hereby consent to the exclusive jurisdiction of the state and federal courts in the State of California. Each party shall take all steps necessary to protect the confidentiality of the Arbitration Materials in connection with any court proceeding and agree to the entry of an appropriate protective order encompassing the confidentiality terms of this Agreement. The non-prevailing party in any such arbitration shall reimburse the prevailing party for its reasonable attorneys’ fees and costs incurred in connection with such arbitration or court action. THE PARTIES AGREE THAT BY AGREEING TO ARBITRATE ANY DISPUTE RELATING TO THIS AGREEMENT, THEY ARE WAIVING THEIR RIGHT TO A JURY TRIAL IN CONNECTION WITH SUCH DISPUTE.

d) Time Limitations

Regardless of any contrary statute or law, any suit seeking to enforce any provision of, or based on any right arising out of, this Agreement must be filed within one (1) year from the date that the cause of action arose.

e) Enforceability

Seller’s failure to enforce, or Seller’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.

f) Assignment

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party shall have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that either party may assign this Agreement to a parent, subsidiary or successor corporation without such consent).