Terms of Sale

ADVANCED COMPOSITES, INC. – TERMS AND CONDITIONS OF SALE

1. Acceptance; Entire Agreement; Application. By submitting an order for products (“Products”) to Advanced Composites, Inc. or its affiliate (as applicable, “ACP”), you (“Buyer”) automatically and irrevocably agree to these terms and conditions (“Terms”) without regard to any other terms or conditions of Buyer included in or attached to any order, or otherwise purported to govern the purchase and sale of Products, and without regard to any UCC or other law or rule that would produce a different result. Without limiting the foregoing: (A) ACP’s acceptance of any order is expressly conditioned upon Buyer’s assent to these Terms, including any terms additional to or different from those contained in any order or other offer to purchase Products; (B) to the extent Buyer is not deemed to have accepted these Terms, these Terms constitute a counteroffer to any other terms and instructions included in, attached to, or purported to govern the purchase and sale of Product; (C) acceptance of or payment for Products will constitute Buyer’s acceptance of these Terms; (D) ACP will not be bound by any other terms or conditions of Buyer included in or attached to any order, or otherwise purported to govern the purchase and sale of Products unless expressly agreed to in writing; and (E) ACP’s invoice or order confirmation and these Terms are the complete and exclusive terms and conditions applicable to the purchase and sale of Products. Notwithstanding the foregoing, these Terms will not apply to any transaction between Buyer and ACP to the extent Buyer and ACP entered into a mutually executed separate written definitive agreement with respect to such transaction.
2. Price; Quantity; Tax; Price Adjustment. Without regard to any course of dealing between the parties: (A) ACP will not be obligated to sell or deliver any Products beyond the amount which, in ACP’s sole judgment, is available for such purpose as of the date of shipment to Buyer; (B) the price of Product will be ACP’s price therefor as of the date of shipment; (C) ACP reserves the right to set minimums and/or premiums or to reject orders for unusual configurations, sizes and folds; (D) unless otherwise specified in writing by ACP, an overrun or underrun of up to ten percent (10%) will constitute due performance of any order; (E) any freight allowances will be those specified by ACP as of the date of shipment; (F) any promised delivery date by ACP is an estimated delivery date only; and (G) any tax payable by reason of the sale, shipment, use or consumption of any of the Products sold to Buyer, other than taxes based on ACP’s net income or profit, will be Buyer’s responsibility, and if paid by or levied or assessed against ACP, such tax will either be added to the price of the Products or billed to Buyer separately as ACP may elect. ACP may change any price, freight or payment term hereof upon no less than thirty (30) days’ prior written notice; provided, however, that ACP may at any time institute or remove a voluntary allowance or other similar competitive allowance without prior notice.
3. Credit. If, in ACP’s sole discretion, the financial responsibility of Buyer is impaired, ACP may require advance cash payment or satisfactory security and may withhold Product shipments until receipt of such payment or security. Such action by ACP will not constitute a change of payment terms. If amounts due are placed with an outside agency for collection, or if an attorney is retained and/or suit is brought for collection, or if collected through bankruptcy or other proceedings, Buyer will pay all costs of collection, including reasonable attorneys’ fees, in addition to other amounts due.
4. Payment. Unless otherwise specified in writing by ACP, payment is due in full no later than thirty (30) days after the date of shipment; ACP reserves the right to impose a finance charge of 1.5% monthly, or at the highest rate allowed by law, whichever is less, on all unpaid amounts after the due date. All invoices will be based on ACP’s designated weights and measurements of the Products.
5. Changes. Any change order by Buyer will not be considered effective unless and until mutual written agreement has been reached between Buyer and ACP.
6. Title; Risk of Loss. Title to all Products will remain with ACP until full payment therefor is received by ACP. ACP will retain a security interest in, and right to repossess, any Products until full payment therefor is received by ACP. Risk of loss will pass to Buyer upon delivery to carrier at ACP’s facility.
7. Inspection. If the Products fail to conform with the applicable warranty offered by ACP, Buyer must notify ACP in writing within ten (10) days following the date of shipment. Failure by Buyer to give such notice within ten (10) days following the date of shipment will constitute a waiver by Buyer of all claims with respect to such Products. If requested by ACP, Buyer will promptly return to ACP, by the method designated by ACP, all unconsumed Products alleged by Buyer to be other than as warranted and ACP will pay freight thereon only for unconsumed Products determined by ACP to have failed to meet the description stated on the invoice.
8. Warranties. ACP warrants, for ninety (90) days following delivery, only that the Products will meet their description stated on the invoice for the Products; provided, (A) ACP makes no warranty with respect to the volume or weight of any Products notwithstanding any stated volume or weight stated on the invoice, (B) that the immediately preceding disclaimer of warranty in clause (A) is not otherwise intended to disclaim any warranty with respect to the number or units of Products stated on the applicable invoice, and (C) all typographical or clerical errors made by ACP in the invoice are subject to correction by ACP. ACP MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. ACP ALSO EXPRESSLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS. THE SALE OF PRODUCTS BY ACP DOES NOT IMPLY ABSENCE OF INTELLECTUAL PROPERTY RIGHTS OR CONSTITUTE A LICENSE OF ANY INTELLECTUAL PROPERTY RIGHTS, NOR IS INFORMATION SUPPLIED BY ACP INTENDED OR IMPLIED AS A RECOMMENDATION FOR THE USE OF PRODUCTS. Buyer acknowledges that no employee of ACP is authorized to orally modify the warranties or disclaimers set forth in these Terms.
9. Safety. ACP may furnish to Buyer material safety data sheets, including warnings and other information concerning Products. Buyer agrees to disseminate such information to give warning of possible hazards to persons that may be exposed, including but not limited to Buyer’s employees, agents, contractors and customers. Buyer will instruct its employees, agents, contractors and customers on the safe handling, use, selling, storing, transportation and disposal for the Products.
10. Limitation of Remedies. Buyer’s exclusive remedy with respect to any claim related to the Products, whether in contract, in tort, under warranty, or otherwise, will be limited solely, at ACP’s option, to either the refund of the purchase price or replacement of all Products shown to be other than as warranted by ACP. THE REMEDY PROVIDED FOR IN THIS SECTION CONSTITUTES THE SOLE RECOURSE OF BUYER AGAINST ACP FOR BREACH OF ANY OBLIGATIONS. BUYER MUST INITIATE LEGAL ACTION WITHIN ONE (1) YEAR AFTER THE DATE OF WHICH ANY CLAIM AROSE OR THE CLAIM WILL BE BARRED NOTWITHSTANDING ANY STATUTORY PERIOD OF LIMITATION.
11. Indemnification. To the fullest extent not prohibited by law, Buyer will indemnify, defend, and hold harmless ACP, its affiliates, and each of ACP’s and such affiliates’ respective equityholders, directors, managers, officers, employees, independent contractors, agents, and representatives from and against all losses, claims, damages, costs, liabilities, and expenses (including reasonable attorneys’ fees) arising from or related to Buyer’s: (A) breach of these Terms, and/or (B) violation of applicable law.
12. Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT WILL ACP BE LIABLE FOR INCIDENTAL, SPECIAL, INDIRECT, EXEMPLARY, PUNITIVE, LIQUIDATED, OR CONSEQUENTIAL DAMAGES, NOR WILL ACP’S LIABILITY FOR ANY CLAIMS OR DAMAGES ARISING OUT OF OR CONNECTED WITH THE MANUFACTURE, SALE, DELIVERY, OR USE OF THE PRODUCTS, OR OTHERWISE, EXCEED THE AMOUNT PAID FOR THE PRODUCTS GIVING RISE TO THE CLAIM. MULTIPLE CLAIMS WILL NOT INCREASE THE FOREGOING CAP. THE REMEDIES AND LIMITATIONS SET FORTH IN THIS SECTION WILL APPLY TO ALL CLAIMS AND DAMAGES, WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT, WARRANTY, TORT, PRODUCT LIABILITY, OR OTHERWISE, AND WHETHER OR NOT SUCH CLAIMS AND/OR DAMAGES WERE FORESEEABLE.
13. Termination. ACP may terminate any order and/or these Terms upon immediate written notice to Buyer on the happening of any of the following events: (A) failure of Buyer to accept delivery of Products; (B) failure of Buyer or to pay any amounts to ACP when due; (C) failure of Buyer to honor any promise on Buyer’s part or to perform any of its obligations, other than the payment of any amounts to ACP; (D) the material inaccuracy of any information set forth in any document furnished to ACP; and (E) Buyer ceases to function as a going concern, or makes an assignment for the benefit of creditors, or any proceeding under any federal or state bankruptcy, receivership, or insolvency laws is instituted by or against Buyer, or the liquidation, dissolution, merger, or consolidation of Buyer occurs, or a receiver or trustee for Buyer or any of its assets or property is appointed or applied for. These Terms will remain fully operative as to, any obligations or liabilities incurred by Buyer prior to the effective date of such termination; provided, that all amounts owed by Buyer to ACP will become immediately due and payable on the effective date of termination without demand, and ACP may deduct from any sums it owes to Buyer.
14. Force Majeure. ACP will not be responsible or be liable for any nonperformance or any default or delay in performance if caused, directly or indirectly, by acts of God, war, fire, the elements, pandemic, epidemic, supply chain disruption, riot, civil commotion, strikes, lock-outs, slowdowns, picketing or other labor controversies, accidents, delays or defaults of carriers, shortages of labor, delays in obtaining materials from regular sources, inability to obtain materials at pricing or on other terms deemed acceptable to ACP, action, requests or regulation of or by any government or government authority, failure of any party to perform any contract with ACP, or any other happening or contingencies beyond ACP’s reasonable control, or without ACP’s fault, whether similar or dissimilar to the foregoing. Deliveries or other performance may be suspended for an appropriate period of time or canceled by ACP upon notice to Buyer in the event of the foregoing, but the balance of these Terms will otherwise remain unaffected.
15. Miscellaneous. ACP reserves the right at any time to modify these Terms. In the event of such modification, these Terms, as modified, will apply to all transactions between Buyer and ACP entered into after the time of such modification. Notwithstanding the foregoing, but without limiting Section 2, these Terms as applicable to current or past transactions between Buyer and ACP may not be modified except by written instrument executed by ACP. These Terms will be governed by and interpreted in accordance with the laws of the State of Ohio. The parties agree that the proper venue for all actions arising in connection with these Terms and Products sold to Buyer will be deemed exclusively proper only in state court in Montgomery County, Ohio or in the federal court for the Southern District of Ohio, Western Division, and the parties agree to submit to such jurisdiction. ACP’s waiver of any term or condition of these Terms will not preclude ACP from seeking to enforce that term and condition on any other occasion and will not constitute a waiver by ACP of any other term and condition set forth in these Terms. Sections 1-8, and 10-15 will survive any termination of these Terms and/or any order. Buyer will not assign its rights or delegate its duties without the prior written consent of ACP, and any such assignment, without such consent, will be void.

4188549.5

Terms and Conditions of Sales of all Products of Advanced Composites-REV7 09/01/2024
Restocking Fee Terms