Terms and Conditions of Sale

Last Updated: March 23, 2016

  1. ACCEPTANCE OF TERMS; ORDERS 
    1. Customer’s Acceptance of Terms and Conditions.  By placing an order containing the Basic Purchase Order Terms, (“Purchase Order”) for the purchase of products (“Products”) manufactured and/or supplied by Blue Marble Energy Corporation or its affiliates (“Supplier”), you represent and warrant that you have the right and authority to legally bind yourself or your company (the “Customer”) and are agreeing to be legally bound by these Terms and Conditions of Sale (“Terms and Conditions”).
    2. Submission of Orders and Supplier Acceptance.  By placing a Purchase Order, Customer makes an offer to purchase the Products it orders on these Terms and Conditions and the Basic Purchase Order Terms in the Purchase Order and on no other terms.  The “Basic Purchase Order Terms” include:  (a) the identity of the Product(s) being ordered; (b) the quantity of each Product being ordered; (c) billing address; (d) email and postal address and the identity of the individual to receive notices pursuant to Section 10.3; and (e) the address to which Products should be shipped (“Shipping Address”).  Supplier has the right, in its sole discretion, to accept or reject any Purchase Order.  Supplier may accept any Purchase Order by confirming the order in writing (whether by written confirmation, invoice or otherwise) or by commencing performance of the order, whichever occurs first (each, an “Accepted Order”).  No Purchase Order is binding on Supplier unless accepted by Supplier as provided in this Agreement and it becomes an Accepted Order.  
    3. Agreement.  These Terms and Conditions, together with the Basic Purchase Order Terms of the Accepted Order, constitutes the “Agreement.” Except with respect to the Basic Purchase Order Terms, any variations made to these Terms and Conditions, including terms and conditions submitted by Customer in any document it transmits to Supplier which are inconsistent with, or in addition to, these Terms and Conditions are rejected and have no effect.  This Agreement is the sole and entire Agreement of the parties and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Agreement, if any.  No trade usage, prior course of dealing or course of performance under this Agreement shall be a part of this Agreement or be used in the interpretation hereof.
  2. FULFILLMENT OF ORDERS
    1. Fulfillment of Product Orders; Modifications to Accepted Orders.  Supplier will use reasonable efforts to promptly fill all Accepted Orders for Products in accordance with the terms of the Agreement.  Any change or modification by Customer to an Accepted Order requires Supplier’s written consent.  Supplier reserves the right to reject any such change or condition such change on a reasonable increase in the Purchase Price, charges to cover additional costs to third parties and internal overhead expenses, and the extension of any anticipated shipment dates or delivery dates that may have been indicated by Supplier to Customer.  
    2. Product Shipment Terms; Title and Risk of Loss.  All Products delivered pursuant to this Agreement will be suitably packed for shipment pursuant to Supplier’s standard practices, marked for shipment to the Shipping Address, and delivered to Customer or its carrier agent E.X.W. Supplier’s facility or the facility of its contract manufacturer (INCOTERMS 2010) (“Delivery Point”).   Risk of loss and title will pass to Customer upon delivery to the Delivery Point.  Unless otherwise agreed to in writing by Customer and Supplier, Customer will select the carrier and make suitable arrangements for shipment from the Delivery Point to the Shipping Address.  Customer has the right to select the exact method of shipment in its sole discretion, and will provide Supplier with information on the method of shipment, identity of the carrier, scheduled arrival of the carrier at the Delivery Point, and any other information relating to its carrier or the shipment within a reasonable period of time following submission of the Purchase Order or following Supplier’s request.  Supplier will provide or make available to Customer (via electronic mail) or its carrier agent with:  (a) a bill of sale or other document of title; (b) then-current material safety data sheets for the Products if required by applicable law; and (c) a certificate of analysis showing the lot number of the Product, the date of any test to determine that the Product complies with the Limited Warranty pursuant to Section 5.1 (“Certificate of Analysis”).  Such documents are “made available to Customer” if published on Supplier’s website in an area where Customer can access.  Customer agrees to pay directly or if agreed to in writing by both Customer and Supplier, reimburse Supplier for all freight, insurance, and other shipping expenses, any special packing expenses, as well as all applicable taxes, duties, and similar charges that may be assessed against the Products after delivery to the Delivery Point.    
    3. Partial Shipments.  Supplier may, in its sole discretion, make partial shipments or deliveries in installments without liability to Customer or Customer having a right to reject any shipment on such grounds.  Partial shipments or installments shall constitute a separate sale.  Supplier will use commercially reasonable efforts to inform Customer reasonably in advance of its carrier’s arrival at the Delivery Point if the Product will be delivered in installments or partial shipments.  Supplier is not responsible for any additional charges, costs or expenses that Customer incurs to its carrier as a result thereof.
    4. Delivery, Shipping and Receiving Delays.  Any quotation of a delivery date, shipment date, or a date on which Customer will receive the Products, are good faith estimates only and do not constitute a commitment or guarantee by Supplier that Products will be delivered, shipped or received on such dates.  Supplier is not liable for any loss or damage incurred by Customer arising from any delay.  Delay in the delivery or shipment of any Products shall not relieve Customer of its obligations under this Agreement, including its obligation to accept other installments of Products; however, if Supplier has failed to deliver to the Delivery Point (and cause the shipment of all Products subject to an Accepted Order if Supplier has agreed to arrange the carrier pursuant to Section 2.2), by a date that is sixty (60) days from the date quoted or specified as the delivery date for reasons not due to a Force Majeure Event or due to the acts or omissions of Customer (including, without limitation, a requested change to the Accepted Order), Customer may, by written notice and as its sole and exclusive remedy, cancel the Accepted Order with respect to the quantity of Products not delivered and tendered to the carrier as of such date.  Supplier assumes no responsibility for delays by, or any other action or omission of, the carrier agent.   
    5. Allocations Due to Product Shortages.  If Supplier cannot supply both the quantity of Products specified in the Purchase Order and the Products ordered by its other customers, then Supplier may allocate Products among any or all of its customers, including Customer, on any basis Supplier deems fair, reasonable and practical and without liability to Customer for nonperformance.  The foregoing shall not affect Customer’s right to cancel pursuant to Section 2.4.   
    6. Inspection and Acceptance.  All Products when delivered to the Delivery Point shall conform to the Limited Warranty set forth in Section 5.1.  Customer agrees to inspect the Products immediately upon receipt at the Shipping Address and notify Supplier within 5 business days of any shortages or the Product’s failure to comply with the Limited Warranty.  If Customer fails to provide such notice within the foregoing time period, then such Products shall be deemed irrevocably accepted and in conformance with the Agreement. 
    7. Shortages Upon Delivery.  The quantity of any installment of Products as recorded by Supplier on dispatch from the Delivery Point is conclusive evidence of the quantity received by Customer unless Customer can provide conclusive evidence proving the contrary within the inspection period set forth in Section 2.6.  If Customer notifies Supplier of a shortage in accordance with Section 2.6, Customer’s sole remedy for non-delivery of the Products (shortages) will be Supplier’s delivery of a quantity or volume corresponding to the shortage within a reasonable time or an adjustment to the invoice respecting such Products to reflect the actual quantity of conforming Products received by Customer in Supplier’s sole discretion.  Customer may not reject a shipment for shortages. 
    8. Rejection.  The Certificate of Analysis shall be conclusive in the absence of evidence to the contrary (i.e., samples retained by Supplier or the carrier of the shipment prior to delivery also being defective) that the Product complies with the Limited Warranty upon delivery.  If Customer determines that the Product fails to conform to the Limited Warranty within the inspection period set forth in Section 2.6, Customer may notify Supplier in accordance with Section 2.6 that it rejects the defective Product and request a return material authorization (“RMA”) from Supplier.  If Supplier concurs, Supplier will promptly provide a RMA to Customer and direct Customer how to return or dispose of the Product.  Customer’s sole remedy following rejection will be Supplier’s delivery of an equivalent quantity or volume of replacement Products within a reasonable time or an adjustment to the invoice respecting such Products to reflect the actual quantity of conforming Products received by Customer in Supplier’s sole discretion, as well as reimbursement of any reasonable, documented disposal costs and costs of return shipping if paid by Customer at Supplier’s direction.  
    9. Product Returns.  Supplier will accept returns of any Products if:  (a) the amount shipped to Customer exceeds the amount stated in an accepted order; (b) the Products are rightfully rejected prior to acceptance pursuant to Sections 2.6 and 2.8; (c) in connection with a valid warranty claim and as permitted by Section 5.2; or (d) if recalled by Supplier pursuant to Section 5.4.  Except in the foregoing circumstances, Customer shall have no right to return the Products following their shipment and Supplier may refuse to accept any attempted return.
  3. PRICE AND PAYMENT
    1. Price.  The purchase price for Products (“Purchase Price”) will be as set forth in a written price quotation on Supplier’s website, as specified in its current catalogue of prices, or otherwise specified in writing signed by an authorized Supplier sales executive (“Price Quotation”).  Supplier reserves the right to change the Purchase Price at any time, and Price Quotations provided in writing signed by an authorized sales executive are only firm for the period provided in the Price Quotation (if any).  Accepted Orders are subject to any additional restrictions that may be set forth in the applicable Price Quotation.  The Purchase Price is E.X.W. Delivery Point (INCOTERMS 2010) and excludes the items specified in the last sentence of Section 2.2 and Section 3.5.  
    2. Changes to Purchase Price.  If Customer requests shipment of Products more than six (6) months after the date of the Purchase Order, Supplier reserves the right to charge the price for the Product that is current at the time of shipment.  If Supplier’s cost of raw materials for production of the Products increases by more than ten percent (10%) at any time prior to delivery of the Products, Supplier has the right to cancel the portion of the Accepted Order relating to the undelivered Products by written notice to Customer or condition continued performance on Customer’s written consent to a corresponding increase in the Purchase Price. 
    3. Payment.
      1. Invoices.  Supplier will submit an invoice to Customer no sooner than the date the Products covered by the invoice have been shipped.  Supplier may invoice Customer with respect to each individual installment or shipment or may consolidate several shipments on a single invoice with each shipment itemized.  The invoice will state the Purchase Price for all Products, and the items specified in the last sentence of Section 2.2 and in Section 3.5, and any other items paid by Supplier to be reimbursed by Customer under this Agreement, will be set forth as separate line items on the invoice(s).   
      2. Payment Date.  When Products will be shipped within the United States, Customer will pay all invoices no later than 30 days after the date of the invoice, regardless of whether additional installments of Products remain to be delivered.  When Products will be exported outside of the United States, payment must be made through a letter of credit, payable 30 days after presentation of proper documentation, issued by a commercial bank acceptable to Supplier and delivered to Supplier no later than 5 days after issuance of the first Purchase Order under this Agreement.  
      3. Advance Payment; Payment Defaults.  Notwithstanding Sections 3.3, 3.3(b) or 10.9, Supplier reserves the right to require payment of 100% of the amounts to be invoiced for any shipment at any time prior to delivery as a condition of performance in its sole discretion.  If Supplier (i) requires advanced payment and payment is not received, (ii) has reasonable grounds for insecurity regarding the performance of any obligation under this Agreement by Customer (whether or not then due) and Customer fails to provide sufficient security in the form, amount, for a term, and from an issuer, all as reasonably acceptable to Supplier within 5 days of Supplier making a demand therefor, or (iii) if Customer fails to make timely payment on any invoice when due to Supplier under Section 3.3(b) or this Section 3.3(c) or under any other agreement between them, Supplier may, without prejudice to any other right or remedy available to it under applicable law or equity, (A) delay delivery or shipment of all or any portion of the undelivered Products or (B) cancel the Purchase Order with respect to the remaining undelivered quantities of Products, sell any such undelivered products for Customer’s account and apply such proceeds as a credit against the Purchase Price without setoff or deduction by Customer. Customer agrees to pay any deficiency between the amount credited from such sale and the Purchase Price upon demand.  Customer agrees to pay all costs and expenses, including reasonable attorneys’ fees and costs of collection, resulting from Customer’s failure to make payment when due.      
    4. Currency and Late Payment.  Unless otherwise stated in the applicable Price Quotation, all Purchase Prices are set forth in, and payments must be made in, U.S. dollars.  Supplier may charge interest on late payments (accounting for any sale of undelivered quantities and credits pursuant to Section 3.3(c)) in its discretion, up to the highest rate allowed by applicable law.
    5. Taxes
      1. General.  Unless otherwise stated in the applicable Price Quotation, Purchase Prices do not include, and are net of, any foreign or domestic governmental taxes or charges of any kind that may be applicable to the sale, licensing, or distribution of the Products, including without limitation excise, sales, use, or value-added taxes; customs or other import duties; or other taxes, tariffs or duties.  Customer will be responsible for, and will pay in a timely manner, all such taxes and charges levied against Supplier, excluding taxes on the income of Supplier.  When Supplier has the legal obligation to pay or collect such taxes, the appropriate amount will be invoiced to Customer, excluding taxes on the income of Supplier, and paid by Customer within 30 days of the date of invoice unless Customer provides Supplier with a valid tax exemption certificate authorized by the appropriate taxing authority.
      2. Withholding Taxes.  All payments by Customer will be made free and clear of, and without reduction for, any withholding taxes.  Any such taxes that are otherwise imposed on payments to Supplier will be the sole responsibility of Customer.  Customer will provide Supplier with official receipts issued by the appropriate taxing authority or such other evidence as is reasonably requested by Supplier to establish that such taxes have been paid.
    6. Grant of Security Interest.  As collateral security for the payment of all amounts under this Agreement when due, Customer hereby grants to Supplier a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and all replacements or modifications of the Products, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision is a purchase money security interest under the Montana Uniform Commercial Code. Customer authorizes Supplier to file financing statements in such regard, and Customer will take such further action as requested by Supplier in connection with perfecting its security interest, including, without limitation, execution of UCC Financing Statements.
  4. TERMINATION
    1. Termination without Cause.  Supplier may terminate this Agreement without cause upon 45 days’ prior written notice to Customer.  If any amounts have been paid by Customer as of such date, Supplier will refund such amounts no later than the end of such 45-day period.  Except as expressly provided in these Terms and Conditions, Customer will have no right to cancel an Accepted Order without Supplier’s written consent.
    2. Termination for Cause.  Supplier may, without prejudice to any other rights or remedies available to it under applicable Law and without releasing Customer of any obligations or liabilities accruing at such time, immediately terminate the Agreement if Customer:  (a) becomes bankrupt or insolvent or if Customer’s business is placed in the hands of a receiver, assignee, or trustee, whether by voluntary act of Customer or otherwise; (b) makes an assignment or any general arrangement for the benefit of creditors; (c) is unable to pay its debts as they become due; (d) is in violation of its payment obligations under this Agreement; (e) fails to give assurance of performance as required by Section 3.3(c); (f) fails to maintain credit support after it is required by Supplier; or (g) is otherwise in breach of this Agreement and has failed to cure such breach within ten (10) days of receiving notice thereof from Supplier.  Customer may, without prejudice to any other rights or remedies available to it under applicable Law and without releasing Supplier of any obligations or liabilities accruing at such time, immediately upon written notice terminate the Agreement for cause only if Supplier:  (i) becomes bankrupt or insolvent or if Supplier’s business is placed in the hands of a receiver, assignee, or trustee, whether by voluntary act of Supplier or otherwise; (ii) makes an assignment or any general arrangement for the benefit of creditors; or (iii) is unable to pay its debts as they become due.   
    3. Effect of Termination or Cancellation.  Termination or cancellation of this Agreement will not release either party from making payments due to the other party under the terms of this Agreement.
  5. LIMITED WARRANTY AND DISCLAIMER
    1. Limited Warranty.  Supplier warrants solely to Customer that, upon delivery of the Products at the Delivery Point, the Products shall conform to the specifications and description of such Product as published on Supplier’s website at the time of receipt of the Purchase Order or otherwise made available to Customer (“Limited Warranty”).  The Limited Warranty does not apply where the Products have been: (a) subjected to misuse, neglect, negligence, accident, improper testing, a Force Majeure Event, improper application, improper transport or storage (including transport or storage in contaminated vessels or facilities that would alter Product properties or specifications), improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Supplier or industry standard practices; (b) altered by anyone other than Supplier or its authorized representative; (c) combined with other Product installments; or (d) used or combined with any third-party product that has not been previously approved in writing by Supplier.  
    2. Remedies; Claims.  All claims under the Limited Warranty must be made in writing to Supplier at sales@bluemarblebio.com or the address specified in Section 10.3 within 90 days from the date the Product is tendered by Supplier to the carrier.  Customer’s exclusive remedy and Supplier’s exclusive liability for a Product that is verified by Supplier to have failed to conform to the Limited Warranty shall be, at Supplier’s sole and exclusive option, replacement of a corresponding quantity or volume of Product at Supplier’s sole expense, or a refund of the Purchase Price attributable to such defective Product.  Replacement or refund is expressly contingent upon Customer returning the defective Product to Supplier in accordance with Supplier’s RMA procedures or other instructions.  Supplier will reimburse Customer for reasonable, documented disposal costs if such disposal is directed by Supplier.  
    3. WARRANTY DISCLAIMER.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED TO CUSTOMER UNDER THIS AGREEMENT, SUPPLIER MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER.  SUPPLIER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, AND ACCURACY.  SUPPLIER DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE PRODUCTS OR AGAINST INFRINGEMENT.  THE LIMITED WARRANTY IS NONTRANSFERABLE. 
    4. Withdrawal of Products.  If Supplier determines that any Products sold to Customer may be defective, fail to conform to the Limited Warranty, or otherwise determines the Product should be recalled, upon written notice to Customer, Customer agrees to cease its use or sale of the Products, and return or dispose of the Products in accordance with Supplier’s instructions.  If Customer returns all withdrawn Products or destroys all withdrawn Products and provides Supplier with written certification of such destruction, in either case consistent with Supplier’s instructions, Supplier will (a) replace all such returned or destroyed Products at Supplier’s cost and expense (or refund the Purchase Price corresponding to such Products if a suitable replacement cannot be provided) and reimburse Supplier for its reasonable, documented disposal costs. THIS SECTION 5.4 SETS FORTH CUSTOMER’S SOLE REMEDY AND SUPPLIER’S ENTIRE LIABILITY FOR ANY PRODUCTS THAT ARE WITHDRAWN OR VOLUNTARILY RECALLED.
  6. LIMITATIONS OF LIABILITY
    1. Disclaimer of Damages.  NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE TRANSACTION CONTEMPLATED UNDER THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUES, LOSS OF BUSINESS, LOST TIME, INCREASES IN THE COST OF CAPITAL, LOST GOODWILL, LOSS OF USE, LOSS OF WORK IN PROGRESS, EQUIPMENT OR FACILITY DOWNTIME, LIABILITIES INCURRED BY CUSTOMER TO A THIRD PARTY, OR DAMAGES OR LOSSES ARISING OUT OF THE USE OF THE PRODUCT (INCLUDING, WITHOUT LIMITATION, PROPERTY DAMAGE, PERSONAL INJURY, OR DEATH, UNLESS DUE TO THE GROSS NEGLIGENCE OF SUPPLIER),  EVEN IF SUPPLIER IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
    2. Cap on Liability.  UNDER NO CIRCUMSTANCES WILL SUPPLIER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE PURCHASE PRICE FOR THE PRODUCT IN RESPECT OF WHICH A CLAIM IS MADE.
    3. Independent Allocations of Risk.  EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABLITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES.  THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY SUPPLIER TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES.  EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE WARRANTIES IN THIS AGREEMENT HAVE FAILED OF THEIR ESSENTIAL PURPOSE.  THE LIMITATIONS OF LIABLITY, DISCLAIMER OF WARRANTIES, AND EXCLUSIONS OF DAMAGES IN THIS AGREEMENT SHALL APPLY REGARDLESS OF HOW THE LOSS OR DAMAGE MAY BE CAUSED AND REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BASED UPON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, WARRANTY, OR ANY OTHER THEORY. 
  7. USE OF PRODUCTS
    1. Generally.  By receiving the Products, Customer agrees to comply with instructions from Supplier, if any, furnished by Supplier relating to the use of the Products and to not use the Products in any manner inconsistent with Supplier’s literature, instructions or labeling.  Customer agrees to use or resell the Products solely as consumer goods or in the manufacture of consumer goods for use or resale.
    2. Assumption of Risk for Results of Use.  Should Supplier provide technical assistance to Customer relating to the Products and without the parties entering into a separate agreement relating to such technical assistance, such technical assistance shall not be construed as a representation or warranty of any kind whatsoever, unless acknowledged as such in writing signed by a duly authorized officer or representative of Supplier.  Supplier has no obligation to provide technical assistance.  CUSTOMER ASSUMES ALL RISK AND LIABILITY FOR THE USE OF THE PRODUCTS, AND THE RESULTS OBTAINED, IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SUPPLIER, WHETHER BY WAY OF TECHNICAL ADVICE OR OTHERWISE.  CUSTOMER HEREBY RELEASES, DISCHARGES AND RENOUNCES ANY AND ALL CLAIMS (AS DEFINED IN SECTION 9.1), WHETHER KNOWN OR UNKNOWN, AGAINST SUPPLIER AND SUPPLIER INDEMNITEES (AS DEFINED IN SECTION 9.1) ARISING OUT OF CUSTOMER’S USE OF THE PRODUCTS. 
    3. Regulatory Matters.  Customer assumes the responsibility to ensure that (and Customer shall ensure that) any materials it produces from the Products for its own use or for sale or transfer to third parties comply with all applicable laws and regulations, including, without limitation, the Toxic Substances Control Act (“TSCA”) and the Federal Food, Drug and Cosmetic Act.  The Products, or any materials produced from the Products for sale to third parties, shall not be adulterated or misbranded (within the meaning of the Federal Food, Drug and Cosmetic Act) by Customer.    
    4. Export Restrictions.  Customer will not directly or indirectly import, export, or re-export the Products outside the United States without obtaining all permits and licenses as may be required by, and conforming with, all applicable laws and regulations of the governments of the United States and the foreign territory.  Customer represents and warrants that Customer is not located in, under the control of, or a national or resident of any country on the United States Commerce Department’s Table of Denial Orders. 
  8. INTELLECTUAL PROPERTY
    1. Intellectual Property.  Supplier will retain all right, title, and interest, in any intellectual property rights in and relating to the Products.  Customer does not acquire any ownership interest in any of Supplier’s intellectual property rights under this Agreement. Any goodwill derived from the use by Customer of Supplier’s intellectual property rights inures to the benefit of Supplier or its licensors, as the case may be.  Customer will use Supplier’s intellectual property rights solely for purposes of using the Products under this Agreement.  Customer hereby grants to Supplier a nonexclusive, irrevocable, perpetual, worldwide, unrestricted, royalty-free, fully-paid-up license, with the right to grant and authorize sublicenses, under any and all intellectual property rights in inventions comprising modifications, extensions, or enhancements made by Customer to the Products or any portion of the Products or to the manufacture or use of the Products or any portion of the Products (“Improvements”), to make, have made, use, import, offer for sale or sell any and all products or components, exploit any and all methods or processes, and otherwise exploit Improvements for all purposes.
    2. Prohibited Actions.  Customer will not:  (a) take any action that might interfere with any of Supplier’s rights in or to Supplier’s intellectual property rights, including Supplier’s ownership or exercise thereof; (b) challenge any right, title or interest of Supplier in or to Supplier’s intellectual property rights; (c) make any claim or take any action adverse to Supplier’s ownership of Supplier’s intellectual property rights; (d) register or apply for registrations, anywhere in the world, for Supplier’s trademarks or any other trademark that is similar to Supplier’s trademarks or that incorporates Supplier’s trademarks in whole or in confusingly similar part; (e) use any mark, anywhere that is confusingly similar to Supplier’s trademarks in whole or in confusingly similar part; (f) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Products or any of Supplier’s trademarks; (g) misappropriate any of Supplier’s trademarks for use as a domain name without prior written consent from Supplier; (h) alter, obscure or remove any Supplier’s trademarks, or trademark or copyright notices or any other proprietary rights notices placed on the Products, marketing materials or other documentation that Supplier may provide; or (i) reverse engineer the Products or create any derivative works of the written materials accompanying the Products, including, without limitation, the material safety data sheets, specifications, labels, or similar documentation.
  9. INDEMNITY AND INSURANCE
    1. Customer Indemnity.  To the greatest extent permitted by applicable law, Customer shall indemnify, defend and hold Supplier and Supplier’s directors, officers, employees, and agents (“Supplier Indemnitees”) harmless from and against all losses, damages, liabilities, judgments, awards, fines, interest, penalties, costs, expenses and fees (including reasonable attorneys’ fees) of any kind or character (collectively, “Losses”) to the extent resulting from any claim, suit, proceeding, action, investigation, demand or assessment, whether in law or equity (“Claim”), arising out of or relating to:  (a) Customer’s sale or use of the Products (including any other goods manufactured by Customer using or derived from the Products); (b) Customer’s breach of its representations, warranties and covenants contained in this Agreement; or (c) Customer’s negligence, willful misconduct, fraud, or violation of laws in the course of performing its obligations under this Agreement or in using the Product.  Customer shall not be required to defend, indemnify and hold harmless a Supplier Indemnitee against any Claims or corresponding Losses that result from the Supplier Indemnitee’s negligence or more culpable act or omission, including gross negligence, willful misconduct, or any action or omission for which indemnification is not permitted under applicable law.
    2. Notice.  Customer shall notify Supplier in writing within fifteen (15) days of Customer’s receipt of knowledge of any accident or incident involving the Products which results in personal injury and damage to property.  Customer agrees to fully cooperate with Supplier in any investigation and determination of the cause of such accident and to make available all statements, reports, recordings and test made by Customer or made available to Customer by others.
    3. Insurance.  Customer will, at its own expense, maintain and carry in full force and effect, adequate levels of liability insurance in order to cover Customer’s indemnification obligations to Supplier Indemnitees under this Agreement and shall ensure this Agreement constitutes an insured contract under its policies.  Upon request, Customer agrees to provide Supplier with certificates of insurance showing Supplier as an additional insured under its liability policies.  The limits of any insurance policy shall not constitute a limitation of Customer’s liability hereunder.
  10. GENERAL PROVISIONS
    1. Assignment.  Customer may not transfer or assign this Agreement, in whole or in part, without the written consent of Supplier, which consent will not be unreasonably withheld.  Any attempt by Customer to transfer or assign this Agreement without consent will be null and void.  Supplier may freely transfer or assign this Agreement.
    2. Governing Law and Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the state of Washington without regard or giving effect to its principles of conflicts of laws or to the United Nations Convention on Contracts for the International Sale of Goods.  Supplier and Customer submit to and hereby irrevocably waive any objection to the exclusive personal jurisdiction of, and that venue is proper in, any federal or state court in King County, Washington.  EACH PARTY HEREBY WAIVES ITS RIGHTS TO A TRIAL BY JURY WITH RESPECT TO ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
    3. Notices.  Any notice, request, demand, or other communication required or permitted in this Agreement will be in writing, will reference this Agreement, and will be effective: (a) when delivered personally; (b) when sent by facsimile, with written confirmation of receipt by the sending facsimile machine; (c) when sent by email provided receipt is acknowledged; (d) four business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (e) two business days after deposit with an express courier, with written confirmation of receipt.  All notices to Supplier will be delivered to Blue Marble Biomaterials – 5840 Expressway – Missoula, MT 59808 USA or sales@bluemarblebio.com.  All notices to Customer will be delivered to Customer at the address for Customer specified in the Accepted Order.
    4. Severability.  If for any reason a court of competent jurisdiction finds any provision of this Agreement invalid or unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible and the other provisions of this Agreement will remain in full force and effect.
    5. Waiver.  No failure of either party to exercise or enforce any of its rights under this Agreement will act as a waiver of these rights.  A waiver must reference the right being waived and be signed by the party to whom performance is due.
    6. Relationship between the Parties.  Supplier is an independent contractor under this Agreement.  Nothing in this Agreement creates a partnership, joint, venture, or agency relationship between the parties.
    7. Contractual Statute of Limitations.  No claim, demand, or cause of action that arose out of an event or events that occurred more than one year before filing of the claim, demands or cause of action with a court of competent jurisdiction may be asserted by either party against the other.
    8. Force Majeure.  Supplier is not responsible for delays or failures to manufacture or deliver Products or otherwise perform its responsibilities under this Agreement due to causes beyond its reasonable control (“Force Majeure Event”).  If the performance of Supplier is interfered with for reasons beyond its reasonable control, Supplier, upon prompt written notice to Customer, will be excused from performance to the extent of the interference.  Supplier will take all reasonable steps to remove the causes of non-performance and resume performance as soon as the causes are removed.  If a Force Majeure Event impacts Supplier’s performance of its obligations in the Agreement for one hundred eighty (180) consecutive days, then either party, by written notice to the other, may cancel the unperformed portion of the Purchase Order.  Following cancellation, neither party shall have further liability to the other party except to the extent such liability arose prior to the onset of the Force Majeure Event; however, if Customer cancels the unperformed portion of the Purchase Order under this Section 10.8, Customer shall reimburse Supplier for its reasonable, documented costs and expenses incurred by it for documented costs incurred to third parties prior to the termination and termination-related expenses, including termination fees paid to third parties for Supplier cancelling contracts as a result.
    9. Amendments.  This Agreement may only be modified, or any rights under it waived, by a written document executed by both parties.
    10. No Third Party Beneficiaries.  Nothing in this Agreement, express or implied, is intended to confer, nor will anything contained in this Agreement confer on, any person other than the parties and the respective successors or permitted assigns of the parties, any rights, remedies, obligations or liabilities.