TERMS AND CONDITIONS OF SALE

APPLICABILITY: These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the product identified on the invoice (“Product”) by MGI International LLC (“Seller”) to the buyer named on the invoice (”Buyer”). The accompanying invoice (the “Invoice”) and these Terms comprise the entire agreement between the parties , and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. Buyer shall be deemed to have accepted these Terms if Buyer shall fail to make written objection to Seller within five (5) days after receipt by Buyer of these Terms, and in any event, Buyer shall be deemed to have accepted these Terms upon Buyer’s acceptance or use of the Product. Notwithstanding anything to the contrary herein, if there is an executed written agreement in effect between Buyer and Seller covering the transaction(s) specified herein, the terms of such executed written agreement shall govern.

PAYMENT TERMS: Unless otherwise set forth on the invoice, Buyer shall pay all invoice amounts to Seller no later than thirty (30) days after the date of shipment. Buyer shall make all payments hereunder by wire transfer, ACH or check and in the invoiced currency. Should any invoice not be paid in full by the due date, (i) the outstanding amount shall bear interest, from the due date to the date of payment, at a rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly, until paid in full; (ii) Buyer shall be liable for Seller’s costs of collection, including attorneys’ fees, (iii) Seller may declare all outstanding bills of Buyer immediately due and payable; and/or
(iv) Seller may cancel this and any other agreement with Buyer. The taking of any such action (s) shall not constitute an election of remedies and Buyer shall remain liable for damages suffered by Seller. Should a dispute arise between the parties with respect to Product covered by any invoices rendered hereunder to Buyer by Seller, Buyer shall nevertheless pay all invoices or portions of invoices not in dispute, without offset.

TAXES: Any tax (except income taxes), excise, or other governmental charge that now or in the future may be imposed, increased, or levied upon the production, value added , sale, transportation, storage, handling, delivery, use, or disposal of the Product sold hereunder which Seller may be required to pay, shall be paid by Buyer to Seller in addition to the purchase price. Upon request, Buyer shall provide Seller with properly completed exemption certificates for any tax from which Buyer claims exemption.

TITLE AND RISK OF LOSS: Title and risk of loss passes to Buyer upon delivery of the Product to the carrier designated by Buyer (or, if Buyer does not so designate, then designated by Seller). As collateral security for the payment of the purchase price of the Product, Buyer hereby grants to Seller a lien on and security interest in and to all of the right , title, and interest of Buyer in, to, and under the Product, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code .

CREDIT: Seller may in its sole discretion at any time and from time to time change the terms of Buyer’s credit, require payment in full before delivery of any or all of the Product specified herein, and/or require anticipated payment of any or all amounts due or to become due under this Invoice, if Seller believes that Buyer’s ability to make the payments called for hereunder is or may be impaired, including the withdrawal of any prior factor approval. In such a case, Seller may renounce further performance hereunder without penalty, upon notice to Buyer, and Buyer shall remain liable to pay for any Product already shipped. Such action by Seller shall not constitute a change of payment terms hereunder.

DELIVERIES: Any delivery times or dates quoted by Seller shall be approximate. Delivery of Product or of any installment of such Product, within (30) thirty days after the date specified therefor shall constitute a timely delivery. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Product to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order. If Buyer has not furnished delivery instructions in a timely manner, or, if no time is specified, within fifteen (15) days after demand by Seller therefor, Seller may ship to Buyer at its address herein set forth and invoice the Product as supplied, or Seller may treat the agreement as being in default. Any sale of products hereunder is made subject to Seller’s ability to obtain the necessary raw materials or Product.

DEMURRAGE: If the railcar is not RELEASED empty to the railcar origin from the Buyer within 60 days of placement, Buyer shall pay Seller a daily demurrage charge as follows based on the number of days the product remains at Buyer’s location or not returned to the railcar origin: (i) for 60 days or less, there shall no charge; (ii) for 61-90 days, there shall be a charge of $75 per day; (iii) for 91-119 days, there shall be a charge of $150 per day; (iv) for 120 days or more, there shall be a one-time charge of $5,000 plus a charge of $150 per day.

QUANTITY: If Seller delivers to Buyer a quantity of Product that is up to five percent (5%) more or less than the quantity set forth in the Invoice, Buyer shall not be entitled to object to or reject the Product or any portion of it by reason of the surplus or shortage and shall pay for such Product the price set forth in the Invoice adjusted on a pro rata basis.

FORCE MAJEURE: Seller shall not be liable for delay in performance or non -performance in whole or in part caused by circumstances reasonably beyond the control of Seller , including but not limited to acts of God, terrorist activity, transportation failure, breakdowns, equipment failure, shortage, or inability to obtain the Product or raw material for the Product, or good-faith compliance with any governmental order or request (whether valid or invalid). Regardless, however, of the occurrence or nonoccurrence of any such circumstances, if for any reason supplies of Product from any of Seller’s existing sources are curtailed or are inadequate to meet Seller’s own requirements and /or its obligations to its customers, Seller’s obligation to deliver Product during such period shall be reduced to the extent necessary, in Seller’s sole judgment, to apportion fairly among Seller’s own requirements and its customers (whether under contract or not) such Product as received and as may be available in the ordinary and usual course of Seller’s business from any existing sources of supply at the location (s) from which deliveries like those covered hereby are normally shipped. Seller shall not be obligated to purchase or obtain Product to replace deliveries omitted or curtailed as described herein.

WARRANTIES: SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF FITNESS FOR PARTICULAR USE, MERCHANTABILITY OR OTHERWISE WITH RESPECT TO PRODUCT, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS. WITHOUT LIMITING THE FOREGOING, SELLER DOES NOT RECOMMEND OR ENDORSE THE USE OF THE PRODUCT IN ANY MEDICAL APPLICATION AND SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF SUITABILITY OR FITNESS FOR USE OR OTHERWISE, WITH RESPECT TO THE PRODUCT’S USE IN ANY MEDICAL APPLICATION. BUYER REPRESENTS AND WARRANTS THAT THE PRODUCT PURCHASED HEREUNDER WILL NOT BE USED IN OR RESOLD INTO ANY COMMERCIAL OR DEVELOPMENTAL MANNER IN CONNECTION WITH MEDICAL APPLICATIONS WITHOUT SELLER’S PRIOR EXPRESS WRITTEN ACKNOWLEDGEMENT. FURTHER, BUYER AGREES THAT IT WILL MAKE NO REPRESENTATIONS, EXPRESS OR IMPLIED, TO ANY PERSON TO THE EFFECT THAT SELLER RECOMMENDS OR ENDORSES THE USE OF THE PRODUCT PURCHASED HEREUNDER IN ANY MEDICAL APPLICATION. WITHOUT LIMITING THE FOREGOING, MATERIALS NOT SPECIFICALLY DESCRIBED AS “PRIME” IN THIS INVOICE ARE TO BE CONSIDERED “OFF GRADE” AND SOLD “AS IS” WITHOUT ANY RESPONSIBILITY OF PERFORMANCE MADE BY SELLER. BUYER SHALL INDEMNIFY SELLER WITH RESPECT TO ANY LOSS, HARM, DAMAGE, OR CLAIMS OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION, FROM THIRD PARTIES), WHETHER ARISING DIRECTLY OR INDIRECTLY, FROM THE DELIVERY, USE, OR HANDLING OF THE PRODUCT SOLD TO BUYER HEREUNDER INCLUDING THE USE OF SUCH PRODUCT IN COMBINATION WITH OTHER SUBSTANCES.

INSPECTION AND CLAIMS: Buyer shall inspect the Product upon arrival shall, within ten (10) days after receipt, give written notice to Seller of any damage, defect, or shortage or claim that the Product does not conform with the agreed upon terms, and Buyer shall be bound to accept and pay for the Product in accordance with the agreed upon terms. Buyer shall assume full responsibility for the inspection of all shipments when received. Buyer expressly waives any rights to revoke acceptance after such ten (10) day period. Any claim of late delivery is barred unless made prior to receipt of the Product, and the receipt of any Product shall constitute a waiver of any claim that it was delivered late. Any claims for shortages must be supported by certified scale tickets and Seller shall have an opportunity to have an independent weighing. All claims for any cause whatsoever, whether based in contract, negligence or other tort, strict liability, breach of warranty or otherwise, shall be deemed waived unconditionally and absolutely unless Seller receives written notice of such claim not later than ninety (90) days after Buyer’s receipt of the Product as to which such claim is made. Defective or nonconforming Product shall, at Seller option, be replaced by Seller without additional charge, or Seller may refund the purchase price upon return of such Product at Seller’s, and such refund or replacement shall constitute Buyer’s sole and exclusive remedy. No Product may be returned to Seller without receiving a return authorization from Seller prior to shipment.

LIMITS OF SELLER’S LIABILITY: The liability of Seller for defective or non -conforming Product shall be to refund or replace such Product as described herein .

NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SELLER’S TOTAL LIABILITY TO BUYER FOR ANY AND ALL CLAIMS, LOSSES, OR DAMAGES ARISING OUT OF ANY CAUSE WHATSOEVER, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCT THAT SUCH CAUSE AROSE FROM, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES.

SAFETY, HEALTH, AND INDEMNITY: Seller shall furnish to Buyer a Material Safety Data Sheet (“MSDS”) for the Product. Buyer shall fully comply with applicable state, federal and international environmental, health, and safety laws (“EHS Laws”) applicable to Buyer’s operations and activities in connection with the Product, and to ensure that the MSDSs are provided to all whom Buyer can reasonably foresee may be exposed to any potential hazards, including but not limited to Buyer’s employees, agents, contractors, or customers. Buyer shall be solely responsible for providing any legally required instruction or information to its employees, agents, contractors, and customers as to the safe handling, use, selling, storing, transportation and disposal practices, etc. for the Product. IF BUYER FAILS TO COMPLY WITH THE TERMS OF THIS PARAGRAPH, BUYER SHALL DEFEND, HOLD HARMLESS AND INDEMNIFY SELLER AGAINST ANY AND ALL LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH FAILURE, INCLUDING BUT NOT LIMITED TO LIABILITY FOR ANY VIOLATION OF EHS LAWS, INJURY, SICKNESS, DEATH, AND PROPERTY DAMAGE.

INTELLECTUAL PROPERTY INFRINGEMENT: Seller shall not be responsible for any infringement of patent, trademark, copyright, service mark, or any other intellectual property right of any third party, and Buyer shall hold harmless and indemnify Seller in respect thereof.

CHANGES: These Terms may only be amended or modified in a writing that specifically states that it amends these Terms and is signed by an authorized representative of each party.

CANCELLATION: Orders made under these Terms cannot be cancelled, terminated, or modified by Buyer, unless agreed to in writing by Seller. If Buyer submits its order and subsequently cancels the resulting agreement for whatever reason, then Buyer shall be responsible for the costs incurred by Seller up to its receipt of a written cancellation, including raw materials, labor, shipping, storage, and all other costs plus reasonable profits.

CONFIDENTIALITY: Buyer acknowledges that Seller is in part able to provide the Product based upon its confidential information regarding the source of specialized goods or services from third parties ("Sources"), and that the commercial success of Seller is based on its ability to utilize such Sources. Buyer agrees that it will not hereafter use any Source of Seller not heretofore used by Buyer in respect of the subject matter hereof, whether the identification of the Source has been by disclosed to Buyer by Seller or hereafter independently and knowingly obtained by Buyer, unless such use in any future business dealings shall be with the advance permission of Seller or pursuant to separate agreement with Seller.

COMPLIANCE WITH LAW: Buyer shall comply with all laws, regulations, rules, and ordinances applicable to the Product and its activities in connection therewith. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Product under this Agreement or any resale of the Product by Buyer .

EXPORT COMPLIANCE: The transaction(s) specified herein, unless otherwise indicated, constitute domestic sales within the United States. Buyer shall comply with all applicable laws relating to export controls and economic sanctions, including, but not limited to, those administered by the US Department of the Treasury (Office of Foreign Assets Controls) and the US Department of Commerce (Bureau of Industry and Security and Bureau of the Census). If Buyer elects to export Product, Buyer shall constitute the Exporter for all purposes under applicable law. Buyer expressly assumes responsibility for determining export licensing requirements and obtaining license authority. If requested, Seller shall provide Buyer with the correct Export Control Classification Number (ECCN), or with sufficient technical information to determine classification. In addition, Seller shall provide to Buyer any other information in its possession that it knows will affect the determination of license authority. In the event of export of Product, Buyer or its U .S. forwarding or other agent shall comply with all applicable requirements to file Electronic Export Information (EEI) via the Automated Export System (AES) administered by the U.S. Bureau of the Census, Department of Commerce. In the event of export of Product with an ECCN other than “EAR 99” Buyer shall cause a Destination Control Statement to be entered on the invoice and on the bill of lading, air way bill, or other export control document that accompanies the shipment from its point of origin in the United States to the ultimate consignee or end -user abroad, as follows: “These commodities, technology or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to
U.S. law is prohibited.”

ASSIGNMENT: This acceptance may not be assigned, modified, or canceled without Seller’s prior written consent, and any attempt to assign, modify or cancel it without such consent shall be absolutely void.

WAIVER: Waiver by Seller of the strict performance of any provision hereof, or of any breach by Buyer, shall not constitute a continuing waiver and shall not affect or impair such terms or conditions in any way or Seller’s right at any time to avail itself of such remedies as it may have for any breach or breaches of such terms and conditions. Seller shall always retain the right to insist upon Buyer’s strict adherence to all provisions hereof and to enforce its rights with respect to any subsequent breach .

GOVERNING LAW: The agreement herein contained shall be construed under and governed by the law of the State of New York. The agreement herein shall expressly not be governed by the United Nations Convention on the International Sale of Goods

ARBITRATION: Any dispute between the parties with respect to the Product to be provided hereunder, or the interpretation, construction or enforcement of any provision hereof , shall be referred to JAMS for arbitration in accordance with its Comprehensive Arbitration Rules and Procedures, or its International Arbitration Rules if Buyer is a natural or legal person domiciled or having its principal place of business in any jurisdiction other than the United States. The tribunal will consist of three arbitrators. The place of arbitration will be New York, New York (USA). The language to be used in the arbitral proceedings will be English. Monetary awards shall be expressed in U .S. Dollars and all awards shall be final and binding on the parties. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.

RIGHTS AND REMEDIES OF SELLER: Subject to the foregoing and anything else provided herein not to the contrary, Seller shall have and retain all rights and remedies granted to a seller under the provisions of the Uniform Commercial Code (or its equivalent) in the event of any breach hereof by Buyer.

NO VARIATION: If the terms and conditions of this agreement differ in any way from the terms and conditions of Buyer’s order, this agreement shall be deemed and construed as a counteroffer and shall not be effective as an acceptance of Buyer’s terms and conditions which conflict herewith. The terms and conditions contained herein will be the complete and exclusive statement of the terms of the agreement between the parties. Buyer’s acceptance of the Product sold hereunder will manifest Buyer’s assent to the terms and conditions hereof.

BANKRUPTCY, REPUDIATION: In the event that Seller has any concerns about Buyer’s financial responsibility, or if Buyer becomes bankrupt, insolvent or makes an assignment for its creditors, or if Buyer fails to perform or repudiates (or attempts to repudiate) this agreement, Seller may suspend performance of any order or require payment in advance and Buyer shall in each case be liable to Seller for all losses, damages and expenses incurred thereby. Moreover, in any such event Seller shall have the right to cancel the whole or any part of this agreement, without liability.