GENERAL TERMS AND CONDITIONS

These are the conditions for sale of products by Digital Specialty Chemicals Limited

1. TERMS OF SALE: All sales of products by Seller to Buyer (all products sold by Seller to Buyer, “Products”) shall be subject to and governed by these General Terms and Conditions (the “Terms”). No variation of any of these Terms will be binding upon Seller unless agreed to in writing and signed by an officer or other authorized representative of Seller, and no modification or waiver of these Terms shall be deemed affected by Buyer’s acknowledgement or confirmation containing other or different terms. Any order submitted by Buyer will constitute an offer to purchase on these Terms and is subject to acceptance by Seller in its absolute discretion.

2. ORDERS: Acceptances by Seller of orders for Products from Buyer will be evidenced by issuance of an order confirmation (the “Order Confirmation”) by Seller. Orders for Products accepted by Seller may thereafter be changed or amended only by written agreement signed by both Buyer and Seller, setting forth the particular changes to be made and the effect, if any, of such changes on the price and time of delivery.

3. SHIPMENT: Shipment of Products shall be made as set out by Seller on the Order Confirmation unless otherwise instructed by Buyer and accepted by Seller in writing. Title and risk of 1oss to Products shall pass to Buyer upon delivery to shipper at 470 Coronation Drive, Toronto, Ontario. Buyer and not Seller is responsible for taxes, insurance, duties, and customs except as specified in writing in the Order Confirmation. The general method of shipment for each Product is listed on Seller’s website. Seller reserves the right, in its discretion, to determine the exact method of shipment. Seller reserves the right to make delivery in instalments, all such instalments to be separately invoiced and paid for when due as set out in the invoice, without regard to subsequent deliveries. Delay in delivery of any instalment shall not relieve Buyer of Buyer’s obligations to accept remaining deliveries.

4. PAYMENT: Unless otherwise agreed in writing by Seller, payment terms are  net thirty (30) days from date of issuance of invoice unless Buyer is otherwise advised in writing by Seller. Late payments will be charged interest at 18% per annum, compounded monthly, minimum $50 per invoice.

5. ACCEPTANCE: Buyer shall make an examination and test of any Product including shortages, defects and changes immediately upon receipt. Failure of Buyer to give notice of any shortage, defect or change within seven (7) days after the receipt of Product shall be conclusively deemed to be unqualified acceptance of such Product.

6. WARRANTIES: SELLER WARRANTS THAT THE PRODUCTS SHALL CONFORM TO SELLER’S STANDARD SPECIFICATIONS AS SET OUT ON SELLER’S WEBSITE AT THE TIME OF THE SENDING OF THE ORDER CONFIRMATION. UNLESS OTHERWISE AGREED BY SELLER IN WRITING, SELLER MAKES NO OTHER WARRANTY WHATSOEVER, EXPRESS OR IMPLIED, WHETHER OF FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF THE PRODUCTS PURCHASED, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS. Buyer’s claims for defective Products and Seller’s liability are in any event subject to the limitations set out in Section 7 hereof.

7. LIMITATIONS OF LIABILITY: Products which do not conform to Seller’s standard specifications as set out on Seller’s website at the time of the Order Confirmation shall be replaced by Seller without any additional charge, or, at the sole option of Seller, Seller may upon return of the Products at Seller’s expense, refund the purchase price. SELLER’S LIABILITY FOR ANY LOSS OR CLAIM WHATSOEVER, INCLUDING A CLAIM FOR BREACH OF WARRANTY, SHALL BE LIMITED SOLELY AND EXCLUSIVELY TO REPLACEMENT OF NON-CONFORMING PRODUCTS OR RETURN OF THE PRODUCTS AND REPAYMENT OF THE PURCHASE PRICE AS SET OUT ABOVE.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES OR LOSS OF PROFIT. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CLAIMS, LOSSES, DAMAGES OR EXPENSES WHICH MAY BE ASSERTED AGAINST OR BE INCURRED BY BUYER, FORESEEABLE OR UNFORESEEABLE, INCLUDING THOSE RESULTING FROM INJURIES TO ANY PERSON OR DAMAGE TO ANY PROPERTY, CAUSED IN ANY MANNER BY ANY ACT OR FAILURE TO ACT OF SELLER IN CONNECTION WITH FURNISHING OF PRODUCTS, OR BECAUSE OF ANY IMPERFECTION OR DEFECT IN SUCH PRODUCTS, OR BASED UPON ANY THEORY OF PRODUCT LIABILITY OR STRICT LIABILITY IN TORT.

8. BUYER’S OBLIGATIONS

(a) Buyer is responsible at its expense for complying with all applicable Canadian federal, provincial and municipal laws and regulations and all applicable foreign laws and regulations commencing at the time loading the Products at Seller’s point of shipment first begins, unless other terms are agreed between Buyer and Seller in writing. Buyer shall be responsible at its expense for return of any container owned by Seller. Buyer shall be responsible for ensuring that any necessary labelling and marking and method of shipment required to comply with the foregoing are carried out. Buyer will comply with all restrictions on use of the Products, whether imposed by Seller or contained in export provisions or pursuant to any other applicable law. Buyer represents and warrants that any use of Products purchased by Buyer will not violate any applicable law or regulation.

(b) Buyer agrees to indemnify and hold harmless Seller, its employees, agents, successors, officers, and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including legal and accounting fees) that Seller may sustain or incur or for which it may become liable, whether based upon negligence, breach of warranty, strict liability in tort, contract, or otherwise, and whether brought by Buyer, its officers, agents, employees, successors or assigns, by Buyer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, arising out of, directly or indirectly, the use of the Products, or by reason of Buyer’s failure to perform its obligations contained herein. Buyer assumes all risk and liability for loss, damage or injury whatsoever to the person or property of Buyer or others or otherwise howsoever  arising out of the purchase, use, possession or sale of any Product purchased by Buyer from Seller. Buyer shall notify Seller in writing within fifteen (15) days of Buyer’s becoming aware of any accident or incident involving any Products which results in personal injury (including death) or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident or incident and shall make available to Seller all statements, reports and tests made by Buyer or made available to Buyer by others. The furnishing of such information to Seller and any investigation by Seller of such information or accident or incident report shall not in any way constitute any assumption of any liability for such accident or incident by Seller.

(c) Buyer expressly represents and warrants to Seller that Buyer will properly test, use, manufacture and market any Products purchased from Seller and/or materials produced with Products purchased from Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted.

(d) Applicable for Products with U.S. destination only: Buyer warrants to Seller that any material produced with Products shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act  (the “Act”) and shall not be materials which may not, under Sections 3404, 505 or 512 of the Act, be introduced into interstate commerce.

(e) Buyer shall be solely responsible to verify the hazards and to conduct any further research necessary to learn the hazards involved in using any Products. Buyer also has the duty to warn Buyer’s customers and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the Products. Buyer agrees to comply with instructions, if any, furnished by Seller relating to the use of the Products and not to misuse the Products in any manner. If the Products purchased from Seller are to be repackaged, relabelled or used as starting material or components of other products, Buyer will verify Seller’s assay of the products. No Products shall, unless otherwise stated, be considered to be foods, drugs, medical devices or cosmetics.

9. PATENT DISCLAIMER: Seller does not warrant that the use or sale of the Products will not infringe the claims of any Canada, United States or other patents covering the Product itself or the use thereof in combination with other products or in the operation of any process.

10. TOXIC SUBSTANCES: Seller does not warrant that the Products are or will be listed in the Toxic Substances Control Act. Buyer shall be solely responsible to ensure that the Products are used in full compliance with the Toxic Substances Control Act, or its successor legislation, and any regulations thereunder.

11. FORCE MAJEURE: Seller shall be entitled to terminate any order or to partially perform any order for any reason without liability to Buyer. No failure or omission by Seller to perform its obligations hereunder will give rise to any claim by Buyer, or be deemed a breach hereof, if such failure or omission arises from any cause reasonably beyond the control of Seller, which causes include but are not limited to: compliance with laws, guidelines, requests, or the like, of any government having jurisdiction or purporting to have jurisdiction over transactions under these Terms; restriction or cessation of production of Product due to imposition of conditions, orders, prorations, requisitions, requests, regulations, or requirements by any government or governmental authority which makes it necessary to cease or to reduce production of Product, or any such government action directly controlling or affecting the price of Product or material required for manufacture of Product or freight or payment terms; strikes, lockouts, or other labour differences or difficulties with workers or unions (whether or not involving employees of Seller); disruption or breakdown of production or transportation facilities, equipment, labour or materials; Seller’s inability to supply Product under this Agreement because the continued availability of necessary raw materials, other feedstocks, energy or power supplies from Seller’s usual and anticipated suppliers is substantially impaired.  Upon the occurrence of one or more of the above conditions (a “Force Majeure Event”), Seller will provide written notification to Buyer of such event and, to the extent possible, inform Buyer of the expected duration of the Force Majeure Event and the quantity of Product to be affected.  In such case, Seller will be relieved of its performance obligations to the extent affected by the Force Majeure Event.  Seller will remedy same with all reasonable dispatch (except for labour disturbances).  If Seller is at any time unable to meet Seller’s total commitment for Product as a result of a Force Majeure Event, Seller will ship such Product as same becomes available.

12. CANCELLATION: Buyer may not cancel any order for Products unless such cancellation is expressly agreed to in writing by Seller. In such event, Seller will advise Buyer of the total charge for such cancellation, and Buyer agrees to pay such charges, including, but not limited to, storage and shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Seller by its suppliers, and any other cost resulting from cancellation of an order by Buyer which is permitted by Seller. Certification of such costs by Seller shall be conclusive on the Buyer.

13. RETURN POLICY: Seller will not be obligated to accept any returns of Products from Buyer for credit unless they are in the original packaging, within thirty (30) days of shipment, and with prior written approval of Seller and in compliance with Seller’s return shipment instructions. Buyer agrees to pay a 40% restocking charge for any such returns.

14. HAZARDS: Buyer acknowledges that all chemicals have potential hazards. Buyer is obligated to exercise extreme caution in handling and storage of Products, using properly trained and certified personnel. At the request of Buyer, Seller will provide material safety data sheets for all Products, but Buyer acknowledges that material safety data sheets contain a summary only and may not be complete.

15. NOTICES: All notices, requests, demands or other communications provided for in these Terms (each, a “Notice”) shall be in writing, and may be sent to the attention of the sales contact of either party by prepaid mail, by e-mail, by facsimile transmission, or by courier. If sent by prepaid mail, a Notice shall be deemed to have been received five (5) business days after mailing; if sent by email or facsimile transmission, on the day of sending, if a business day, and otherwise, on the next following business day, or if by  courier, on the date of delivery, if a business day, and otherwise, on the next following business day.

16. GOVERNING LAW: The validity, performance, construction, interpretation and effect of these Terms shall be governed by the laws of the Province of Ontario. Any dispute arising under or in connection with these Terms shall be submitted to the Courts having jurisdiction in the Province of Ontario for adjudication. Buyer and Seller disclaim the application of the United Nations Convention on contracts for the international sale of goods.

17. GENERAL

(a) Seller’s failure to strictly enforce any term or condition hereof or to exercise any right arising hereunder shall not constitute a waiver of Seller’s right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies hereunder are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity. Any waiver of a default by Buyer hereunder shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.

(b) If any provision hereof shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby. Headings are for convenience only, form no part of the terms and conditions and shall not affect their interpretation.

(c) These Terms shall be binding upon, enure to the benefit of, and be enforceable by, the parties hereto, and their respective successors and assigns.

18. SET-OFF: No set off of claims by Buyer is permitted.

19. CURRENCY:  All dollar amounts are in U.S. dollars, unless otherwise specified.

20. ENTIRE AGREEMENT: These Terms and all Order Confirmations contain the entire agreement of the parties with respect to the purchase and sale of the Products, unless specifically agreed in writing by Seller.