Terms & Conditions of Sale

This writing constitutes an offer by W.E. Lott Co., and its affiliates (collectively “Seller”) to sell the products and/or services described herein in accordance with these terms and conditions. These terms and conditions are not an acceptance of any offer made by Buyer, and the consummation of any transaction between Seller and Buyer is expressly conditioned upon Buyer’s assent to these terms and conditions, and the payment of any amounts due hereunder, or acceptance of the purchased items shall constitute Buyer’s acceptance of the terms set forth in these terms and conditions. No additional or different terms or conditions will be binding upon Seller unless specifically agreed to in writing, and Seller’s failure to object to any provisions contained in any purchase order or other communication from a Buyer shall not constitute a waiver of any terms contained herein, nor shall the failure to object be construed according to the internal laws of the State of Ohio. Any related order acknowledgement and invoice for goods shipped pursuant to this offer, as well as these terms and conditions (collectively, the “Agreement”), 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. In the event of any conflict between these terms and conditions, the order acknowledgement, and related invoice, these terms and conditions shall govern, unless the order acknowledgement, and/or related invoice, expressly states otherwise. These terms and conditions shall prevail over any of Buyer’s general terms and conditions regardless of whether or when Buyer has submitted its request for proposal, a purchase order, or any other form of such terms. The provision of products and/or services does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these terms and conditions.
No order may be cancelled or altered by the Buyer except upon terms and conditions acceptable to the Seller, in its sole and absolute discretion. The minimum charge for a cancellation of an accepted order will be $500up to a maximum of 100% of ordered amount, depending upon the status of Seller’s fulfillment of the order. Seller reserves the right to cancel or modify any order of products or services.
All prices are subject to change without notice for material surcharge or currency exchange rate fluctuations.
Seller reserves the right to ship 10% over or under the quantity specified by this contract. Claims for shortages or other errors in delivery must be made in writing to Seller within 10 days after receipt of shipment and failure to give such notice shall constitute unqualified acceptance and waiver of all such claims by Buyer. All goods are shipped FOB Seller’s warehouse. Claims for loss or damage to goods in transit should be made to the carrier and not to Seller. All delivery dates are approximate. Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including, without limitation, any act of God, act of the Buyer, embargo or any other governmental act, fire, accident, war, delay in transportation, or inability to obtain necessary materials or manufacturing facilities. Buyer’s exclusive remedy for other delays and for Sellers inability to deliver for any reason shall be rescission of this agreement. For the avoidance of doubt, if Seller’s performance of its obligations under these terms and conditions is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, the Seller shall not be deemed in breach of its obligations under these terms and conditions or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Seller warrants that products manufactured and services rendered hereunder to be free from defects in materials and workmanship for a period of twelve months from date of shipment; provided, however, that Seller shall not be responsible for any defects that arise after any products purchased under the Agreement have been delivered to the carrier. If within such period any such product shall be proved to Seller’s satisfaction to be defective, such product shall be repaired, replaced, or the purchase price for such product credited against Buyer’s account, in Seller’s sole and absolute discretion. SUCH REPAIR, REPLACEMENT, OR CREDIT SHALL BE SELLER’S SOLE OBLIGATION, AND ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY UNDER THIS SECTION, AND SHALL CONSTITUTE BUYER’S EXCLUSIVE REMEDY HEREUNDER AND SHALL BE CONDITIONED UPON SELLER’S RECEIVING WRITTEN NOTICE OF ANY ALLEGED DEFECT WITHIN 10 DAYS AFTER ITS DISCOVERY AND AT SELLER’S OPTION, RETURN OF SUCH PRODUCTS TO SELLER, F.O.B. ITS WAREHOUSE. THIS WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AND EXCEPT FOR THE WARRANTY SET FORTH IN THIS SECTION 5, SELLER MAKES NO WARRANTY WHATSOEVER, AND EXPRESSLY DISCLAIMS, ANY WARRANTY WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY OF MECHANTABILITY; (ii) WARRANTY OR FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. FURTHER, SELLER EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, OBLIGATIONS, RESPONSIBILITIES OR LIABILITIES THAT MAY ARISE EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS.
Products may be returned to Seller only when Seller’s written permission shall be obtained in advance. Returned products must be securely packaged to reach Seller without damage and any cost incurred by Seller to put products in marketable condition will be charged to Buyer.
Except otherwise agreed in writing, Seller’s liability with respect to the products and/or services sold hereunder shall be limited to the warranty provided herein and, with respect to other performance of the contract, shall be limited to the contract price. FOR THE AVOIDANCE OF DOUBT, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO SELLER PURSUANT TO THIS AGREEMENT. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. Without limiting the generality of the foregoing, Seller specifically disclaims any liability for property or personal injury damages, penalties, special or punitive damages, damages for lost profits or revenues, loss of use of products or any associated equipment, cost or capital, cost of substitute products, facilities or services, down-time, shut-down or slow-down costs, or for any other types of economic loss, and for claims of Buyers customers or any third party for any such damages. SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER. Buyer shall indemnify Seller against any and all losses, liabilities, damages and expenses including, without limitation, attorneys’ fees and other costs of defending any action) which Seller may occur as a result of any claim by Buyer or others arising out of or in connection with the products and/or services sold hereunder and based on product or service defects not proven to have been caused solely by Seller’s negligence.
All sales of merchandise are F.O.B. Seller’s warehouse. Any exceptions must be approved at the time of order entry.
Extra charges may be added to the net amount of our invoice to cover the cost of freight charges, fuel surcharges, demurrage charges, special packing, special handling, or other unusual cost that may arise throughout the course of performance. Buyer hereby acknowledges and agrees that Buyer shall be responsible for the payment of the purchase price, as well as any and all additional charges, that may arise in the course of performance, including, without limitation, any of the charges referenced in the immediately preceding sentence.
No material shall be returned for credit without written approval from a duly authorized W.E. Lott Company Official. Material returned for any reason other than defective will be subject to inspection to insure the items to be in resalable condition. A minimum 25% handling and restocking charge as well as freight both ways will be deducted from the credit.
Buyer agrees to pay all invoiced amounts due to Seller within 30 days of Buyer’s receipt of Seller’s invoice, subject to the approval of Seller’s Credit Department. Buyer shall make all payments hereunder in US Dollars by check, or other methods as mutually agreed between the parties.
Any terms and conditions proposed by Buyer in accepting Sellers offer inconsistent with or in addition to those set forth herein shall be void unless accepted by Seller in writing.
Seller’s prices do not include Antidumping, Countervailing or Section 301 duties if assessed on imported goods. The assessment of such duties or other similar duties by Government Agencies is outside of Seller’s reasonable control. If these or similar duties are assessed by Government Agencies on goods sold to the Buyer, the full amount of the assessment will be charged to the Buyer and identified separately on Seller’s invoice.
All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names, and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all documents, work product, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Seller in the course of performance, including any items identified as such in these terms and conditions, the acknowledgement, and/or the invoice shall be owned by Seller. Seller hereby grants Buyer a license to use all Intellectual Property Rights free of additional charge and on a non-exclusive, worldwide, non-transferable, non-sublicensable, fully paid, royalty-free, and perpetual basis to the extent necessary to enable Buyer to make reasonable use of the products and/or services provided.
All non-public, confidential or proprietary information of Seller, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the provision of the products and/or services and this Agreement is confidential, and shall not be disclosed or copied by Buyer without the prior written consent of Seller. Confidential Information does not include information that is (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third-party that is not subject to any confidentiality agreements or provisions. Further, Buyer agrees to use the Confidential Information only for the reasonable use of the products and/or services provided. Moreover, Seller shall be entitled to injunctive relief for any violation of this Section.
In addition to any remedies that may be provided under this Agreement, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics or pandemics, including COVID-19, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; [and] (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the control of the Impacted Party. The Impacted Party shall give notice within 10 business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
This Agreement may only be amended or modified in a writing which specifically states that it amends this Agreement and is signed by an authorized representative of each party.

74437108v6