By submitting a purchase order or otherwise ordering products (“PO”) from CERES 14 INC. or SIMPLE SOLVENTS (“CERES 14”), the customer identified on the PO (“Customer”) agrees to be bound by these terms and conditions (“Terms”).
 

1. ACCEPTANCE OF ORDERS. All POs are subject to acceptance by CERES 14 in writing. Any additional or differing terms and conditions of any letter, Customer purchase order, invoice or other document submitted by Customer in connection with a PO are expressly rejected and shall not be binding on CERES 14. The parties acknowledge and agree that these Terms, together with the Supply Agreement, if any, constitute the entire agreement between the parties regarding the subject matter hereof and supersede all prior agreements and understandings, whether oral or written. CERES 14 reserves the right to amend, modify or revise these Terms from time to time.
2. PRODUCTS, PRICES, AND CHANGES. The products covered by these Terms are those specifically identified in the PO, upon acceptance by CERES 14 (“Products”). All prices are in US dollars unless otherwise indicated. CERES 14 reserves the right to change the price for any of the Products from time to time on written notice to Customer. Upon receipt of a notice of a price increase, Customer has the right to cancel a PO or any portion thereof for Products affected by such price increase, provided such Products have not been shipped. CERES 14 may make changes to or discontinue Products at any time, but shall provide Customer with notice if any such changes affect Products subject to a pre-existing and unfulfilled PO. In such event, CERES 14 shall use reasonable efforts to substitute a Product acceptable to Customer, and failing that either party may cancel all or any portion of a pre-existing and unfulfilled PO by giving written notice to the other party and neither party shall be liable to the other for any damages that may result from such cancellation.
3. INSPECTION. Customer shall have the right to inspect: (i) all bulk Products (such as those arriving in tanks, railcars, trucks, etc.) on delivery and prior to unloading; and (ii) all packaged Products (such as pails, totes, drums, etc.) within 10 business days from the date of delivery. During the applicable inspection period, Customer shall have the right to notify CERES 14 of any non-conformities or defects in the Products that do not meet the product specifications previously agreed upon between the parties, as specified in CERES 14’s documentation (the “Specifications”). The Product rejection process shall be as follows: (i) if Customer proposes to reject any Product due to non-conformities or defects, then it agrees to immediately notify CERES 14 in writing, identifying the date of the shipment, the PO number, the product batch number, and providing evidence that such Product does not meet the Specifications; (ii) CERES 14 shall conduct an investigation within a reasonable time and provide Customer with a written report of its findings and actions taken; (iii) If CERES 14 determines that such Product does not meet the Specifications, CERES 14 shall, at its own expense, either replace the non-conforming Products or refund the purchase price of such Products; (iv) if CERES 14 determines that the Product conforms to the specifications, the product shall be deemed accepted by Customer and any further disputes shall be resolved through binding arbitration. Customer shall not use or dispose of the disputed product without prior written consent of CERES 14.
4. OBLIGATIONS AND RESTRICTIONS. Customer shall: (i) use and dispose of Products only in accordance with applicable laws and regulations; (ii) conduct all safety testing of the Product and any products created using the Product; (iii) ensure that the Product, including the quantities and types of ingredients within the Product, may be manufactured, sold and/or used for Customer’s intended purpose; (iv) ensure that any modifications to the Product, and any residual solvents or chemicals remaining in any products created using the Product, are safe for sale and use, including by retail customers (if being sold thereto); and (v) ensure the adequacy and safety of all packaging, labeling and warnings, safety devices, and instructions contained in, on or with any products created using the Product. Customer shall not: (i) use or sell any Product after its recommended re-test date; (ii) use Products as gasoline blend stocks; (iii) use Products as fireplace or lamp fuel (or any similar device); (iv) use Products for any non-commercial purpose; or (v) resell, distribute, or supply Products to any person for retail sale or personal/household use.
5. PAYMENT. Customer shall pay CERES 14 the prices invoiced plus all taxes, duties, charges, or any other impost of a similar nature (“Taxes”). Customer shall also comply with all excise and other applicable taxes and shall accurately report its status with respect to same to CERES 14 and applicable regulatory authorities at all times. Unless otherwise set out on the PO, all invoices shall be payable in full within 30 days of the invoice date (and all excise taxes shall be payable within eight days) by electronic funds transfer, credit card or by check. Customer may not make deductions or offsets of any kind from payments due to CERES 14 unless CERES 14 has provided its prior written consent, which may be withheld in CERES 14’s sole discretion. If any invoiced amounts are not paid on the applicable due date, Customer shall be in arrears and such amounts shall bear interest, after the due date until paid in full, at a rate of 1.5% per month calculated and payable monthly (18% per year), with interest on overdue interest accruing at the same rate. In addition, CERES 14 may, without waiving any other rights or remedies to which it may be entitled: (i) deduct or offset any unpaid amounts owing after the applicable due date against any payments owing from CERES 14 to Customer; (ii) refuse to ship ordered Products; and/or (iii) seek collection from Customer of any unpaid amounts, including reasonable legal fees incurred and costs of collection.
6. LABELING. If CERES 14 is private labeling Products for Customer, Customer acknowledges that it has independently verified and confirmed that the labeling and packaging of the Products are fit for Customer’s intended purpose, regardless of whether or not CERES 14 may have assisted in the creation or design thereof. In the event that Customer provides CERES 14 with label content and/or design, Customer shall be solely responsible (notwithstanding any review or approval by CERES 14) for ensuring that same: (i) complies with all applicable laws; (ii) is accurate; (iii) contains all safety, use, and other applicable warnings and notifications required, recommended and/or appropriate to sell the Products to industrial, commercial or consumer end users, as may be applicable; and (iv) is properly affixed on the Products. In the event that Customer provides CERES 14 with label stock, Customer shall be solely responsible (notwithstanding any review or approval by CERES 14) for ensuring that same: (i) complies with all Applicable Laws; (ii) is accurate; (iii) contains all safety, use, and other applicable warnings and notifications required, recommended and/or appropriate to sell the Products to industrial, commercial or consumer end users, as may be applicable; and (iv) is properly affixed on the Products. In the event that Customer provides CERES 14 with label stock, Customer shall not make any modifications thereto without CERES 14’s prior written consent.
7. FREIGHT. Unless otherwise set out in the PO, all prices are F.O.B. CERES 14’s facility or warehouse and shall be shipped at Customer’s expense, plus shipping and handling charges, by the carrier of CERES 14’s choice. All additional services requested by Customer shall be Customer’s sole responsibility, regardless of whether pricing is “delivered” (or any similar term). For international customers, if pricing is described as “delivered” (or any similar term), it shall include all freight, brokerage, customs, import taxes and all other charges up to the point of delivery at the destination port or site identified in the PO.
8. RISK OF LOSS. Risk of loss of the Products shall pass to Customer upon delivery of the Products to the carrier or other common carrier at CERES 14’s facility or warehouse. Customer is responsible for filing any claim with the carrier for damaged or lost Products. In the event that Products are damaged or lost in transit, CERES 14 shall assist Customer in filing such claim but shall have no liability for any damaged or lost Products.
9. PARTIAL SHIPMENTS. CERES 14 shall use reasonable efforts to meet the requested delivery dates for Products specified in the PO. CERES 14 reserves the right to ship any PO in part, and such shipments may be invoiced separately. Delay in delivery of a PO or any part of a PO shall not relieve Customer of its payment obligations for the PO or the remaining part thereof.
10. LIMITED WARRANTIES. Subject to the Sections entitled LIMITATION OF LIABILITY, THIRD PARTY CLAIMS, and STORAGE, CERES 14 hereby warrants that Products: (i) shall conform to the Specifications at the time of shipment; (ii) shall be free from defects in material and workmanship; and (iii) do not infringe any third party’s intellectual property rights in the jurisdiction from which the Product is shipped. To the maximum extent permitted by law, all other warranties, conditions, or representations not specifically included in these Terms, whether express, implied, statutory, or arising from a course of dealing or usage of trade, are expressly excluded.
11. STORAGE. It is Customer’s responsibility to ensure that Products are stored in accordance with applicable laws and regulations and in a manner that preserves their quality and safety. Customer shall be responsible for any damages resulting from improper storage of the Products.
12. WEIGHTS AND MEASUREMENTS. Customer acknowledges that CERES 14 ships and bills in standard US weights and volumes. When conversions from other systems are required, CERES 14 rounds to the nearest whole US shipping unit (e.g. gallon, case, drum or tote).
13. LIMITATION OF LIABILITY. Regardless of the basis on which Customer is entitled to claim damages (including fundamental breach, negligence, misrepresentation, or other contract or tort claim) from CERES 14, CERES 14 is liable to Customer for no more than the amount of Customer’s actual direct damages, up to the actual purchase price of the Product in the PO that is the subject of the claim. This limitation of liability is cumulative and not per incident. Under no circumstances is CERES 14 liable to Customer for any of the following, even if advised or informed of their possibility: (i) special, incidental, indirect, consequential or punitive damages; (ii) lost profits, business, revenue, goodwill, or anticipated savings; (iii) loss of, or damage to, any equipment; (iv) Customer’s negligence; (v) misuse or modification of Product after delivery; or (vi) the combination of Product(s) with other product(s) or item(s). Nothing contained herein shall restrict or limit Customer’s liability to CERES 14, and Customer shall contribute to any liability to the extent of the contributory and/or relative fault of Customer. Furthermore, CERES 14 shall not be liable for any delays or failure in performance of its obligations caused by acts of God, war, riot, terrorism, fire, flood, accident, government action, strikes or other labor disputes or any other cause beyond its reasonable control.
14. THIRD PARTY CLAIMS. Subject to the Section entitled LIMITATION OF LIABILITY, if a third-party claims that Products infringe a third party’s patent, copyright, or trademark in the jurisdiction from which the Product is shipped, CERES 14 shall, at its expense, defend Customer against that claim and pay all costs, damages, and reasonable legal fees that a court finally awards or that are included in a settlement approved by CERES 14. If such a claim is made or appears likely to be made, CERES 14 may, in its sole discretion and at its own expense: (i) take such action as it deems necessary to resolve the claim in a way that permits continued ownership and use of the affected Products; (ii) replace the infringing products with non-infringing products; (iii) modify the products so that they become non-infringing; or (iv) accept the return of the infringing products and provide a refund for such infringing products.

This Section constitutes CERES 14’s entire liability and responsibility regarding any claim of infringement and Customer’s sole and exclusive remedy in connection therewith. Nothing in these Terms or elsewhere shall obligate CERES 14 to provide any greater indemnity to Customer. CERES 14 shall exclusively control the defense and settlement of any infringement claims it assumes on behalf of Customer. CERES 14 shall not enter any settlement that imposes any liability or obligation on Customer without Customer’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. The parties shall cooperate fully in the settlement or defense, giving each other access to all relevant information. CERES 14 shall not be obligated to indemnify or defend Customer with respect to the claim (or portions of the claim) if Customer fails to promptly notify CERES 14 of the claim and fails to provide reasonable cooperation and information to defend or settle the claim, but only to the extent that such failure prejudices CERES 14’s ability to defend or settle the claim.

15. INDEMNITY. Customer shall indemnify and hold harmless CERES 14, its officers, employees, agents and affiliates, from and against any and all claims, damages, losses, liabilities, costs and expenses, including reasonable legal fees, arising out of or in connection with any breach by Customer of these Terms.
16. INSURANCE. Customer shall maintain, and agrees to continue to maintain, appropriate policies of insurance with respect to its business and the Products purchased, in amounts and against the risks that are customary for businesses, properties and assets of a similar nature.
17. TERMINATION. In the event that Customer breaches any of these Terms or becomes insolvent, commits an act of bankruptcy, enters into any arrangement or composition with its creditors, goes into liquidation, or has a receiver appointed over any part of its business assets, CERES 14 shall have the right to terminate any unfulfilled PO, and to recover from Customer, at Customer’s expense, any Products not paid for as of the date of termination together with any Products for which CERES 14 holds a purchase money security interest. CERES 14’s right to terminate this agreement will be in addition to and without prejudice to any other rights or remedies that CERES 14 may have under the law or in equity.
18. FORCE MAJEURE. Neither party shall be liable to the other party for non-performance or delay in performance of any of its obligations under this Agreement (other than Customer’s payment obligations for Product) due to causes reasonably beyond its control, including, but not limited to: fire, flood, epidemic, natural disasters, strikes, lockouts, labor trouble, other industrial disturbances, lack of raw materials, unavoidable accidents, governmental regulations and/or changes in law, war, riots, terrorism, termination and insurrections. Upon the occurrence of a force majeure event, the affected party shall immediately notify the other party with as much detail as possible and shall promptly inform the other party of any further developments. Immediately after the cause is removed, the affected party shall perform such obligations with all due speed. Should any force majeure event continue for 30 days or more, either party may terminate this Agreement upon notice to the other party.
19. INTELLECTUAL PROPERTY. Customer acknowledges that as between the parties, all intellectual property used on, embodied in, or related to Products belongs to and shall be the exclusive property of CERES 14, and Customer shall not make use of any such intellectual property without the express written authorization of CERES 14.
20. ASSIGNMENT. Customer shall not assign these Terms in whole or in part without the prior written consent of CERES 14, and any assignment without such prior written consent shall be void. CERES 14 may, by providing notice to Customer, assign these Terms to any person. Subject to the foregoing, these Terms shall enure to the benefit of and be binding upon the parties and their respective successors and assigns.
21. GOVERNING LAW. These Terms shall be governed by and construed in accordance with the laws of the jurisdiction from which the Product is shipped and shall be treated in all respects as a contract executed in such jurisdiction. Each party hereto irrevocably submits to the exclusive jurisdiction of the courts of such jurisdiction with respect to any matter arising hereunder or in relation to this Agreement and shall be the exclusive forum for all actions arising hereunder. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
22. ENTIRE AGREEMENT. These Terms and the Supply Agreement, if any, constitute the entire agreement between CERES 14 and Customer with respect to Products and supersede all prior agreements, arrangements, understandings, negotiations, and discussions, whether oral or written, except for any non-disclosure and/or confidentiality agreements, which shall continue until they expire pursuant to their terms. No supplement, modification, or waiver of these Terms shall be binding unless executed in writing by the parties. No waiver of any particular term, condition, or breach of these Terms shall constitute a waiver thereof, nor a waiver of a party’s right at any time thereafter to require strict compliance with all the terms and conditions of these Terms.
23. SURVIVAL. The parties’ rights and obligations, which by their nature would continue beyond the termination, cancellation, or expiration of this Agreement, including but not limited to those rights and obligations of the parties set forth in the Sections entitled LIMITED WARRANTIES, LIMITATION OF LIABILITY, INTELLECTUAL PROPERTY, and THIRD-PARTY CLAIMS, shall survive such termination, cancellation or expiration.
24. SEVERABILITY. If any one or more of the provisions contained in these Terms is declared invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired. In such case, the parties hereto oblige themselves to reach the purpose of the invalid provision by a new, valid, and legal stipulation.

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