These Terms of Sale (“Terms of Sale”) apply to and form a part of any contract or agreement with Surface-Tech, LLC, an Oregon limited liability company (“SurfaceTech”) for products, equipment, parts, materials, or other tangible goods (“Products”), and/or design, formulation, engineering, development, procurement, customization, or other services (“Services”), and any supply or provision of the same by SurfaceTech are expressly limited to these Terms of Sale, unless otherwise agreed in a separate written agreement signed by SurfaceTech expressly intended to supersede some or all of these Terms of Sale.  Any additional or different terms provided or delivered by you, the buyer (“you”) or on your behalf, or added to any request, purchase order, confirmation, business form, or email are expressly rejected, and no subsequent performance by SurfaceTech will be considered an acceptance of any such inconsistent or additional terms or a modification or amendment of these Terms of Sale. The submission of an Order is your express agreement that: (a) these Terms of Sale are expressly incorporated into your Order; and (b) excepting any terms or conditions confirmed in an Acknowledgement, any additional or inconsistent terms stated included in your Order are expressly waived by you (notwithstanding their inclusion) and shall be severed from your Order, including without limitation, any terms or conditions intended, or which may be construed, to reject all or any portion of these Terms of Sale.

Quotes/Orders. Unless otherwise stated in a price quote (“Quote”) issued by SurfaceTech, all quoted prices are: (a) valid for 30 days, but subject to adjustment in the event of increases to costs incurred by SurfaceTech for performance, sourcing, production, compliance, transport, or otherwise; (b) apply only to the project(s) specified in the Quote; and (c) exclusive of Taxes and Fees (defined below) and related Services. Quantity estimates set forth in a Quote, or otherwise provided, are estimates only, and you bear sole responsibility for determining the appropriate quantity of Product for the applicable project. You may place an order for Products by issuing a binding written purchase order by facsimile or email as instructed by SurfaceTech (an “Order”). In response to an Order, SurfaceTech may issue an acknowledgement (“Acknowledgement”) to some or all of your Order, upon which, the Acknowledgement and these Terms of Sale shall form the entire agreement between SurfaceTech and you regarding its subject matter, unless you notify SurfaceTech in writing within one business day of delivery of an Acknowledgment. Any proposed shipped by/delivery date are estimates only and not a guarantee. You may not alter, cancel, reschedule, or delay delivery without the express written consent of SurfaceTech.

Tender/Delivery. Products will be shipped Incoterms Ex Works (EXW) from any SurfaceTech facility. Upon tender to the carrier, goods will be deemed delivered and risk of loss and title to Products passes to you. In the absence of instructions, SurfaceTech will, at your expense, arrange carriage (including insurance against normal in-transit risks up to the applicable purchase price). SurfaceTech assumes no responsibility for carrier charges, shipping, handling, freight, or insurance. You may not return Product to SurfaceTech without prior written authorization of SurfaceTech and a valid Return Materials Authorization (“RMA”) number. Any authorized Product return must contain the RMA number and SurfaceTech-provided RMA form.

Payment.  Unless otherwise stated, payment terms for qualified purchasers meeting SurfaceTech credit requirements are NET 30 of invoice, without set-off, excepting credits issued by SurfaceTech. SurfaceTech reserves the right to alter or amend your payment terms upon notice in its business judgment or where economic circumstances dictate, including where you owe past due amounts, up to and including requiring prepayment in full. Payment shall be in US dollars and in immediately available funds. SurfaceTech reserves the right to assess interest on overdue payments at a rate of one-and-one-half percent (1½%) per month (or the maximum rate allowed by applicable law, whichever is less). In addition to all other remedies, SurfaceTech shall be entitled to suspend delivery of any Products or performance of any Services if you fail to pay any amounts when due. You shall reimburse SurfaceTech for all costs incurred in collecting any payments, including, reasonable attorneys’ fees. You are responsible for, all legally imposed transaction taxes, duties, and import or export taxes or charges, including, sales, excise, use, value added, consumption and business taxes, and other similar transaction-based taxes, (exclusive of taxes on the net income of SurfaceTech) as well as, profit, stamp, or other taxes, duties, imports, or other charges imposed by any person in connection with the supply or performance of Products or Services (collectively, “Taxes & Fees”).

Services.  With respect to any Services provided on or with respect to Products (e.g. design, formulation, engineering, development, or customization): (a) whether or not included in any Quote, SurfaceTech will assess and you agree to pay, SurfaceTech’ prevailing rates and fees, together with expenses incurred by SurfaceTech in connection with such Services, including costs of permits, licenses, authorizations, and approvals required by law; and (b) you agree to promptly respond to any request or approvals necessary to perform Services.. SurfaceTech warrants that Services will be provided by SurfaceTech in a professional and workmanlike manner, and in the event of any breach of such warranty SurfaceTech shall reperform the applicable Services, as your sole and exclusive remedy.

Intellectual Property. Neither these Terms of Sale, nor any Quote, Purchase Order, Acknowledgement, or performance shall evidence or operate to transfer to, or create in, you any rights in or to any intellectual property. Unless set forth in a written agreement signed by SurfaceTech: (a) all designs, inventions, discoveries, improvements, and other intangible property, that SurfaceTech, solely or jointly, may conceive, develop, fix in a tangible medium, reduce to practice, or produce in connection with the performance of Services, and any used to create, embodied in, or otherwise relating to any Products, and any work in progress, and all intellectual property rights in and to the same belong to, subsist in, and shall by retained by SurfaceTech; (b) you irrevocably assign to SurfaceTech your entire interest in and to the same; and (c) you agree not to challenge SurfaceTech’ rights in or to, or the validity of, the same, or any other intellectual property right of SurfaceTech in any jurisdiction.

Warranty Disclaimer. The only warranty made by SurfaceTech with respect to the Products is as set forth in the SurfaceTech Limited Warranty, which states your sole and exclusive remedy arising out of or related to the Products. SurfaceTech disclaims all other representations, warranties, and conditions of any kind, to the maximum extent permitted by law.

Limitation of Liabilities. To the maximum extent permitted by law, SurfaceTech is not, in any event, liable or responsible to you or any other Person for any indirect, special, incidental, collateral, exemplary, punitive, or consequential damages or losses of any nature whatsoever, resulting from or arising out of any representation, warranty, or condition, or otherwise, under any legal theory even if SurfaceTech knows, should know, or has been advised of the possibility of such damages.

Export Control. You agree to comply with all applicable export control laws or regulations promulgated and administered by the laws of the United States or the government of any other country with jurisdiction over the parties or the transactions between the parties.

Force Majeure. SurfaceTech will not be responsible for any default or delay in performance if such default or delay is caused by: (a) fire, flood, elements of nature or other acts of god; (b) outbreak or escalation of hostilities, acts of terrorism, war, riots, civil disorders, or sanctions; (c) general failure of infrastructure or communications resources; (d) inability or delay in obtaining supplies of suitable materials; or (e) other causes or circumstances beyond the reasonable control of SurfaceTech.

Governing Law and Venue.  These Terms of Sale are governed by the laws of Oregon, USA, without giving effect to any conflict-of-law principle. The parties agree that the 1980 United Nations Convention on Contracts for the International Sale of Goods does not govern the rights and obligations of the parties. Any action or proceeding arising out of these Terms of Sale will be litigated exclusively in courts located in Multnomah County, Oregon, and each party consents and submits to the jurisdiction of any local, state, or federal court located in Multnomah County, Oregon.

General.  If a provision of these Terms of Sale is unenforceable in any respect, the enforceability of the provision in any other respect and of the remaining provisions of these Terms of Sale will not be impaired, and parties will substitute for such provision an enforceable and valid provision, which most closely approximates the intent and economic effect of the unenforceable or invalid provision. These Terms of Sale and the applicable Acknowledgement contain the entire understanding of the parties regarding the subject matter of these Terms of Sale and supersedes all prior and contemporaneous negotiations and agreements, whether written or oral, between the parties with respect to the subject matter of these Terms of Sale.

Effective May 25, 2021