1. AGREEMENT

1.1.       The conditions on the sales contract between the parties shall supersede any conflicting terms in these Conditions of Sale. If Buyer, as defined in the purchase documents, and The Hanson Group LLC (“Seller”) have not entered into a written sales contract, the conditions on the attached document, including any acknowledgement or invoice, shall supersede any conflicting terms in these Conditions of Sale (the attached document and these Conditions of Sale shall be defined as “Agreement”). Except as otherwise specified in this Agreement, no other conditions shall be applicable to this Agreement or otherwise accepted by Seller. All other terms and conditions are hereby expressly rejected. Seller’s acceptance of Buyer’s offer to purchase or Buyer’s purchase order is expressly made conditional on Buyer’s assent to Seller’s terms and conditions as set forth herein and the rejection of any other terms. Terms defined herein are capitalized.

1.2.       Acceptance by Buyer of goods or services (“Product(s)”) or payment for same shall constitute unequivocal acceptance of the terms and conditions contained herein. None of any past practice, industry standards, course of dealing or usage of trade shall constitute a modification of any term or condition contained herein, nor shall same add any term not contained herein.

2. DELIVERY

2.1.       Buyer will provide to Seller written, detailed shipping instructions within a reasonable time prior to shipment. Buyer will be responsible for any increased costs or delays in delivery resulting from Buyer’s failure to supply such instructions in a timely manner.

2.2.       Buyer may not withhold payment in the event of delay caused by Buyer.

2.3.       Seller shall not be required to deliver in any month more than the monthly quantity specified, or if no monthly quantity is specified, more than the monthly pro rata amount of the annual quantity specified.

2.4.       All specified delivery dates refer to the completion of manufacture and availability for shipment of Product(s) and are Seller’s good faith estimates only. Seller reserves the right to modify the delivery dates with notice to Buyer.

3. FORCE MAJEURE

3.1.       Neither party shall be held responsible for any loss, damage, delay or lack of delivery or any other contractual obligation except the obligation to pay monies when due, to the extent, whether foreseen or unforeseen, or beyond the affected party’s reasonable control or not, arising from fire; strikes, lockouts, injunction or other labor troubles; governmental intervention including prohibition or extraordinary taxation upon import or export; war; riots; acts of terrorism; explosion; weather; flood; acts of God or nature; epidemic; pandemic or outbreak; inability to obtain on financial terms acceptable to Seller, or a shortage of, fuel, power, raw materials, labor, containers or transportation; accident; failure or breakage of machinery or other apparatus; disruption, including but not limited to declarations of force majeure, of normal supplier channels of purchase or distribution.

3.2.       Neither party shall be held responsible for any loss, damage, delay or lack of delivery, or any other contractual obligation except the obligation to pay monies when due, whether foreseen or unforeseen, to the extent caused by any event or act or forbearance not specifically mentioned herein, beyond the affected party’s reasonable control.

3.3.       Buyer may cancel, without liability, deliveries suspended for at least sixty (60) days by Seller for reasons stated in the previous section, but the Agreement shall otherwise remain in effect.

3.4.       Seller reserves the right to allocate and fairly apportion Product(s) among its internal and external customers during force majeure events in any manner Seller, in its sole discretion, deems appropriate. Seller further has the right to allocate Product(s) among its internal and external customers in a fair and reasonable manner during periods in which Seller experiences a shortage in its ability to supply Product(s), whether or not such shortage is caused by a force majeure event.

3.5.       Seller shall have no obligation to acquire, by purchase or otherwise, any Product(s) that Seller is unable to supply to Buyer due to force majeure events.

4. WARRANTY

4.1.       Seller warrants Product(s) will conform only to Seller’s standard external specifications for same existing at the time of shipment, unless otherwise agreed to herein. This warranty applies only to the original purchaser of the Product(s).

4.2.       Buyer shall inspect all Product(s) for conformance to this warranty. Buyer shall notify Seller of any non-conformance no later than the earlier of a) thirty (30) days from date of shipment by Seller; or b) the date of use of the Product(s) by Buyer.

4.3.       Buyer’s sole remedy and Seller’s sole liability for claims of breach of warranty shall be Seller’s choice of either a) replacement by Seller of conforming for nonconforming Product(s); or b) refund of monies paid by Buyer to Seller for the non-conforming Product(s).

4.4.       Seller assumes no liability for any errors that are caused by the inaccuracy or incompleteness of Buyer-supplied data.

4.5.       Seller shall have the opportunity to inspect all Product(s) that Buyer claims are non-conforming. Buyer shall hold, at no cost to Seller, the Product(s) pending such inspection. The conditions of any test of the Product(s) for conformance with any specification shall be mutually agreed upon and Seller shall be notified of, and may be represented at, all tests that may be made by or for Buyer.

4.6.       Buyer assumes all risk for use and misuse of the Product(s).

4.7.       THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, STATUTORY OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHICH ARE EXPRESSLY DISCLAIMED. To the extent permitted by law, this limited warranty is intended to be the exclusive remedy of Buyer with respect to any claims relating to the Product(s), whether arising at law or in equity.

4.8.       The PARTIES hereby agree that Seller does not represent or warrant that the importation, use or sale of the Product(s) is/are free from infringement of any third party patent(s), trademark(s), or copyright(s).

5. TERMINATION

5.1.       Seller may terminate this Agreement by written notice to Buyer at any time if Buyer: (a) commits a non-monetary breach of this Agreement and, in case of such a nonmonetary breach that is capable of being remedied, Buyer fails to remedy the breach within 30 days of being required to do so in writing; (b) files for bankruptcy, is adjudged as bankrupt, makes a general assignment for the benefit of creditors, has a receiver appointed or becomes insolvent; or (c) fails to make any payment required to be made by Buyer under this Agreement within five (5) days after the due date. If Buyer is in default, Seller may suspend shipments during such cure period without liability. Termination of this Agreement pursuant to this Article 5 does not terminate, limit or restrict the rights and remedies of Seller.

6. LIMITATION OF LIABILITY

6.1.       NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT OR ELSEWHERE TO THE CONTRARY: (A) SELLER’S MAXIMUM LIABILITY HEREUNDER AT ANY TIME FOR ANY CAUSE WHATSOEVER, INCLUDING THIRD PARTY CLAIMS, SHALL NOT EXCEED THE PRICE PAID FOR THE PRODUCT(S) AT ISSUE; AND (B) SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND OR NATURE, ARISING AT ANY TIME, FROM ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE OR LOST PROFITS, REGARDLESS OF WHETHER SUCH LOSS OF REVENUE OR LOST PROFITS ARE CHARACTERIZED AS DIRECT, SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR THAT SUCH DAMAGES WERE FORESEEABLE.

6.2.       These limitations of liability shall apply notwithstanding any finding that any remedy fails its essential purpose.

7. GOVERNING LAW AND VENUE

7.1.       This Agreement shall be construed, interpreted and controlled by the laws of the State of Georgia, and all claims, conflicts or otherwise arising out of or related to the parties’ relationship created by this Agreement, whether in contract, tort, statutory or otherwise, and whether substantive or procedural, shall be governed and decided pursuant to the laws of the State of Georgia, including Georgia’s statutes of limitations but not including its choice of laws rules. Buyer irrevocably submits to the personal jurisdiction of the state courts of the State of Georgia sitting in Gwinnett County, Georgia, and of the United States District Court for the Northern District of Georgia, Atlanta Division, and the parties agree that such courts shall be the exclusive venue for any dispute arising out of or relating to this Agreement. Each party waives any objection to venue in such courts and any defense of inconvenient forum. Each party knowingly, voluntarily and intentionally waives its right to a trial by jury in any legal proceeding, whether based in tort, contract or otherwise, arising out of or relating to this Agreement, and the transactions it contemplates.

8. PRICES; PAYMENT TERMS

8.1.       Unless otherwise stated herein, payment terms shall be Net 30 Days from the date of Seller’s invoice, and payments shall be made electronically, and not in the form of cash, credit card or check, in U.S. dollars. All prices shown are exclusive of any applicable tax. Any tax that Seller is required to collect pursuant to the sale of Product(s) hereunder shall be in addition to the price and shall be entirely for Buyer’s account.

8.2.       Seller may revise the unit price, payment terms or delivery terms at any time by written notice to Buyer. Such changes shall be effective beginning with the next shipment.

8.3.       If, in the sole judgment of Seller, Buyer’s financial ability to perform hereunder is altered, Seller reserves the right, among any other right or remedy, to change payment terms, require full or partial advance payment or to cancel any outstanding order without liability. Seller also has the right to set off any amounts owed Buyer against any amount due Seller.

8.4.       Any discount or rebate provided for in this Agreement shall be accounted for exclusively on the basis of sales made to Buyer.

8.5.       Notwithstanding any other provision in this Agreement or elsewhere to the contrary, Seller shall have the unilateral right to levy surcharges on price of Product(s) based on tariffs, duties, fuel, freight, energy and/or similar charges.

8.6.       Should Buyer at any time any shipment is due under this Agreement receive a bona fide offer from another domestic producer at a lower price on equivalent or substitutable material of equal quality, in like quantity as the shipment involved, Buyer shall first provide written proof (reasonably satisfactory to Seller) of same and Seller shall then either supply such shipment at the lower price, or (if applicable) permit Buyer to purchase the specified quantity elsewhere, and the quantity so purchased elsewhere will be deducted from the minimum quantity that Buyer is required to purchase under this Agreement, however, this Agreement shall otherwise remain unaffected. Adjustments resulting from the Seller’s having met a good-faith offer from another supplier will be made with Buyer within thirty (30) days.

8.7.       All unit prices in this Agreement are exclusively for Product(s) sold directly to Buyer or Buyer’s agent by Seller.

8.8.       Seller shall retain a purchase money security interest in the Product(s) sold hereunder until all payments (including deferred payments, whether evidenced by notes or otherwise) shall have been received in full by Seller and, if requested in writing to do so, Buyer agrees to do all acts necessary to perfect and maintain such security interest in Seller.

8.9.       Seller shall not be required to provide any rebates or refunds of any kind otherwise due hereunder unless Buyer’s account is Current. “Current” shall be defined as when the sum of the average number of days outstanding (the number of days between each invoice date and each payment receipt date) for each month of the defined rebate or refund period divided by the number of months in the defined rebate or refund period is less than or equal to the payment terms, and shall also mean that no past due amounts exist at the time of the required rebate or refund payment. Seller reserves the right to apply any rebate or refund otherwise due hereunder to the outstanding balance on Buyer’s account.

8.10.     If weights are to be billed in pounds or kilograms, then all weights shipped shall be rounded to the nearest whole unit for billing purposes.

8.11.     Seller is entitled to recover from Buyer all collection costs, including reasonable attorneys’ fees, incurred by Seller in enforcing this Agreement.

9. PROPRIETARY INFORMATION

9.1.       Any information disclosed by Seller to Buyer incident to the performance of this Agreement, including but not limited to information related to pricing, volumes or the financial terms of this Agreement and the existence of the Agreement itself, is disclosed in confidence for the sole and exclusive use of Buyer. Buyer shall not publish or otherwise disclose such information to others without the express written consent of Seller.

9.2.       Nothing herein shall limit the Buyer’s right to disclose any information provided by the Seller hereunder which (a) was furnished by the Seller prior to this Agreement without restriction; (b) legitimately becomes knowledge available within the public domain; or (c) is received by Buyer from a third party without restriction and without breach of this or any other Agreement.

9.3.       In the absence of a signed agreement to the contrary, no information disclosed by Buyer to Seller shall be considered confidential.

9.4.       In the event Buyer competes with Seller in sales of Product(s), the parties shall enter into a separate non-disclosure agreement to control the exchange and use of Proprietary Information. The separate non-disclosure agreement shall include a definition of Proprietary Information and the following provisions: (a) the parties shall restrict access to Proprietary Information disclosed thereunder, particularly that related to pricing, volumes or the financial terms of this Agreement and the existence of this Agreement, solely to those individuals within their respective organizations with a need to know; (b) each of those recipients shall be contractually or otherwise bound by obligations regarding confidentiality and restriction of use of information at least as restrictive as those contained in the non-disclosure agreement; (c) the parties shall treat the Proprietary Information as absolutely confidential and shall not disclose it or make it otherwise available to any third party; (d) the parties shall only use the Proprietary Information to fulfill the purpose of this Agreement according to the terms and conditions of this Agreement; and (e) the parties shall not exploit the Proprietary Information for any other commercial purpose.

10. INDEMNIFICATION

10.1.     To the fullest extent permitted by law, Buyer shall indemnify, defend and hold harmless Seller and Seller’s employees, agents and Affiliates (as defined in Article 11.1) from and against any claims and damages incurred by, asserted against or awarded against Seller or Seller’s employees, agents and Affiliates to the extent such claims or damages arise, directly or indirectly, from, or are related in any way to, (a) Buyer’s acts or omissions; (b) Buyer’s use of Product(s); (c) failure of Buyer to comply with all federal, state and local laws, regulations and ordinances in connection with Buyer’s performance hereunder; (d) any breach by Buyer of any term or condition of this Agreement; or (e) any contamination of or damage to the environment or any property or damage to natural resources at a facility owned or operated by Buyer or its customers, or a facility/location chosen by Buyer for its disposal of wastes. Seller has the right to control the defense, compromise and settlement of any third party claims to which Buyer’s indemnity obligations apply pursuant to this Article 10. This Article will apply regardless of the type of assertion being made including, without limitation, any legal, equitable, or admiralty causes of action or rights (including, without limitation, negligence, strict liability in tort, other tort, express or implied warranty, indemnity, contract, contribution or subrogation), whether the assertion is made by a party to this Agreement or any third party.

11. ADDITIONAL TERMS

11.1.     This Agreement may not be assigned by either party to any other party without the prior written consent of the other party hereto; provided, however, that Seller may without the consent of Buyer (a) assign any or all of its rights and obligations hereunder to any Affiliate of Seller by written notice to Buyer; and (b) assign its rights and obligations hereunder, by written notice to Buyer, to a third party successor or transferee (whether by merger, consolidation, purchase or otherwise) of either (1) all or substantially all of the assets of Seller; or (2) all or substantially all of the assets of the particular division of Seller to which this Agreement pertains. “Affiliate” shall mean, with respect to a party, any individual, corporation or other business entity that, either directly or indirectly, controls such party, is controlled by such party or is under common control with such party. “Control” means possession of the power to direct or cause the direction of the management and policies of a corporation or other entity whether through the ownership of voting securities, by contract or otherwise. This Agreement shall be binding upon and inure to the benefit of the parties and their respective legal representatives, successors and permitted assigns. Any attempted assignment in violation of this Article 11.1 is null and void.

11.2.     Return of Product for any reason whatsoever shall require prior written approval of Seller.

11.3.     Unless such use is explicitly stated in this Agreement, Buyer warrants that it has no knowledge that any Product, or part of any Product, will be utilized in any type of (a) nuclear use whatsoever; (b) medical (human or animal), food processing or FDA regulated use or any adjuvants to same; (c) any insecticide, fungicide, or rodenticide or FIFRA regulated use or any adjuvant to same; (d) isocyanate or polyaspartic Product(s) sold by Buyer in an unreacted state, or into any “do-it-yourself” or domestic consumer markets; Buyer will immediately notify Seller in writing upon obtaining such knowledge and indemnify and hold Seller harmless for any damage, penalty or other claim arising out of such use(s); and regardless of whether or not explicitly stated in this Agreement, shall abide by all U.S. and any other applicable law(s) regarding such use(s). Breach by Buyer of this Article 11.3 shall be considered a material breach of this Agreement. If Seller does not explicitly agree in writing with such use after notification from Buyer, Buyer will immediately ensure such use is terminated or will terminate its arrangement(s) with its down-stream customer if such use originates there.

11.4.     Buyer represents and warrants that (a) it understands the nature and characteristics of the Product(s) and any hazards associated with its use; and (b) it will adequately instruct, train and warn all persons, including all third parties, who may come in contact with, or will be in the vicinity of, the Product(s) in the proper safe use, handling, and disposal of the Product(s). Appropriate literature has been assembled which provides information concerning the health and safety precautions that must be observed when handling Product(s). Before working with Product(s), Buyer acknowledges it has read and is familiar with the available information on Product hazards, proper use, handling, and disposal. Breach by Buyer of this Article 11.4 shall be considered a material breach of this Agreement.

11.5.     All information and technical assistance is given without warranty or guarantee and is subject to change without notice. Buyer represents and warrants (a) it is not relying upon any representation, statement or other assertion made by Seller or its representatives or agents, with respect to the suitability of the Product(s) for any purpose and that Buyer has made its own independent inquiry and testing and has formed an independent opinion concerning the suitability of the Product(s) for the end use, conversion or application intended; and (b) it will not assert any claim against Seller or hold Seller liable, with respect to any information, testing or design furnished, or failure to be furnished, by Seller, including, without limitation, technical advice or recommendations.

11.6.     Buyer acknowledges that Product(s) may not meet applicable government procurement requirements, and that Seller may not be able to provide information required by government procurement regulations; and Seller shall have no liability whatsoever with respect to any requirements relating to, or arising from, any government procurement regulations, unless first agreed to in writing, signed by an authorized representative of Seller.

11.7.     No type of contractual obligation between Buyer and its customer(s) shall be applicable to, or create any liability with respect to, Seller, whether via “pass-through”, “flow-down” or otherwise, and Buyer shall not otherwise represent to its customer(s) such purported Seller liability.

11.8.     The rights and obligations under Articles 4, 6, 7, 9, 10 and 11 herein shall survive the cancellation, termination or expiration of this Agreement.

11.9.     Should any part of this Agreement be deemed invalid by a court of law, the remaining provisions of this Agreement remain in full force and effect if the economic and legal substance of the transactions this Agreement contemplates are not affected in a manner materially adverse to a party.

11.10.   The waiver of any failure to meet the requirements of any term or condition of this Agreement shall not operate as a waiver of any subsequent failure to meet the requirements of such term or condition or as a waiver of any other rights in this Agreement. Failure of Seller to affect any available right or remedy shall not be construed to operate as a waiver of same.

11.11.   This Agreement constitutes the complete and final agreement between the parties. All prior agreements, negotiations, representations or understandings, whether oral or written, between Buyer and Seller concerning the subject matter of this Agreement are expressly merged into and superseded by this Agreement. The parties intend this statement of their agreement to constitute the complete, exclusive, and fully integrated statement of their agreement. As such, it is the sole expression of their agreement, and they are not bound by any other agreements of whatsoever kind or nature regarding this Agreement. The parties also intend that this Agreement may not be supplemented, explained, or interpreted by any evidence of trade usage or course of dealing or performance. The parties did not rely upon statements or representations not contained within this Agreement.

11.12.   Any amendment or modification of this Agreement or any term or condition herein, other than unit price or quantity, shall be unenforceable unless it is evidenced by a writing signed by an authorized representative of each party.

11.13.   Buyer and Seller agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

11.14.   Seller’s acceptance of (a) payment; or (b) specially endorsed checks shall not waive or limit any right or remedy of Seller.

11.15.   Nothing contained herein is intended nor shall be construed as creating a partnership, joint venture, agency, distributorship or any other relationship except buyer and seller; nor shall either party be construed as acting as an agent, distributor (in the absence of a separate, executed Distribution Agreement), or representative of the other party; nor shall the employees of one party be deemed to be employees of the other party. This Section shall apply notwithstanding any communications of any kind between the parties to the contrary.

11.16.   Buyer shall not resell or distribute Product(s) except to its Affiliates for use in the manufacture of goods only, without a separate, concurrent Distribution Agreement with Seller.

11.17.   Each party giving or making any notice, request, demand or other communication (each, a “Notice”) pursuant to this Agreement shall give Notice in writing and use one of the following methods of delivery: personal delivery, registered or certified mail (in each case, return receipt requested and postage prepaid), nationally recognized overnight courier (with all fees prepaid), or e-mail. Any party giving a Notice shall address the Notice to the appropriate person at the receiving party at the address listed in this Agreement or to another addressee or another address as designated by a party in a Notice pursuant to this Article.

11.18.   All headings herein are for reference only and do not affect the interpretation or construction of this Agreement.

11.19.   Buyer warrants that it has a robust, effective compliance program in effect, including but not limited to what is required by applicable laws or regulations, the primary precepts of which are available for review by Seller.

11.20.   Counterparts: If this Agreement requires signatures, the parties signing this Agreement don’t all need to sign the same copy. Any executed copy of the Agreement may be treated as an original.

11.21.   Buyer warrants that it will not use, return, dispose of, sell or give away any packaging of Product(s), including but not limited to drums or totes, except as directed by Seller and in accordance with all applicable regulations. If Seller does not provide direction, Buyer shall dispose of all Product packaging in a safe, responsible and compliant manner and in accordance with all applicable regulations.

11.22.   Buyer and Seller each agree that they will not share any information that could be, and no information that is shared shall be, considered “private” under any applicable law or regulation, except as described elsewhere herein, or in a non-disclosure agreement executed by the Buyer and Seller and referencing this Agreement.

11.23.   Buyer shall at all times during the term and afterwards, maintain Adequate Insurance, defined as general liability insurance to cover product liability, acts of omission or commission, negligence, professional liability or other fault; environmental or pollution insurance, liability insurance pertaining to the operation of automobiles or other vehicles and workers’ compensation insurance for employees who are engaged in any work pertaining to this Agreement, all in amounts and coverages typical of companies engaging in contracts such as this Agreement. Upon request of Seller, Buyer shall provide a certificate of insurance indicating adherence to the foregoing.

11.24.   Buyer hereby acknowledges that it, as well as the Product(s) or services being provided hereunder, may be subject to export controls, embargoes, sanctions and similar laws, regulations and requirements. Buyer warrants and represents that it is not the subject of any trade or economic sanctions promulgated by the government of the United States (including any executive order of any branch or department) or any other jurisdiction in which it is located or operates, including but not limited to, United Kingdom, or the European Union (collectively, “Sanctions”). Buyer shall comply with the requirements of all laws, rules, regulations and orders of any jurisdiction in which it is located or doing business, or which are otherwise applicable to Buyer, including, without limitation, (a) all Sanctions, (b) all export control regulations and trade restrictions, (c) all laws and regulations that relate to money laundering, any predicate crime to money laundering, or any financial record keeping and reporting requirements related thereto, (d) the U.S. Foreign Corrupt Practices Act of 1977, as amended, and (e) any other applicable anti-bribery or anti-corruption laws and regulations. Buyer will not allow a Blocked Person to have an ownership interest in or control of the Product(s), nor shall Buyer divert shipment of Product(s) to a Blocked Person. “Blocked Person” means any person or entity that is now or at any time (a) on a list of Specially Designated Nationals issued by the Office of Foreign Assets Control (“OFAC”) of the United States Department of the Treasury or any sectoral sanctions identification list, or (b) whose property or interests in property are blocked by OFAC or who is subject to Sanctions, or (c) otherwise designated by the United States or any regulator having jurisdiction or oversight over a party, to be a person with whom a party is not permitted to extend credit to or with regard to whom a business relationship may result in penalties against such party or limitations on such party’s ability to enforce a transaction. Buyer shall promptly notify Seller of any violations of any of the laws or regulations, including those described above. In addition, Buyer shall indemnify, defend and hold Seller and all of its affiliates harmless from any cost, expense or loss related in any way to Buyer’s or its employees’, subcontractors’ or agents’ breach of the warranty and representation contained herein. Any such breach by Buyer or its employees, subcontractors or agents shall be considered a material breach of this Agreement and shall give Seller the right to terminate this Agreement upon notice to Buyer.