1. INTERPRETATION.
    In these terms and conditions "the Company" means Fb Systems, LLC and/or its affiliates, the “Buyer" means the party with whom the Company is contracting and "goods," where the context so permits and requires, means the goods and/or services which the Company contracts to supply and/or to provide and "Conditions" means the following terms and conditions of sale.
  2. THESE CONDITIONS APPLY.
    Unless the Company shall otherwise expressly agree in writing, every offer, tender, quotation, acceptance and contract for the sale or supply of goods, including services ancillary thereto, by the Company is made subject to these conditions and all other terms and conditions proposed by the Buyer are expressly excluded. No modification of these terms and conditions shall be effective unless reduced to writing and signed by a person duly authorized by the Company. No binding contract shall be created by the acceptance of a quotation or offer made by the Company until notice of acceptance of the order in writing signed by a person duly authorized shall have been given to the Company by the Buyer.
  3. PRICES.
    All prices are FOB Company's facility unless otherwise stated.
  4. INVOICING AND PAYMENT.
    1. 4.1 The Company will invoice the Buyer on or about the date on which the goods are ordered. Unless the Company notifies the Buyer otherwise, 50% of the payment is due upon submission of any Purchase Order, with the remainder being due and owing upon the Company’s notice that the goods are ready for shipment. The goods remain the property of the Company until the full payment is received by the Company, and the Company retains a purchase money security interest in the goods until such full payment. Time for payment is of the essence. Anything herein to the contrary, the Company reserves the right to handle Special Orders on a case by case basis. Special Orders include, but are not limited to, any orders for more than 100,000 units; fire retardant products; acid resistant products; and hypoallergenic products (which generally require 75% deposit upon order and 25% to ship).
    2. 4.2 Unless otherwise expressly agreed in writing by the Company, payment in full without discount shall be made in U.S. Dollars and the Buyer shall not be entitled for any reason to withhold payment of the amount shown on the invoice as due.
    3. 4.3 Payment is made and received only at the time when cash is handed to a duly authorized representative of the Company who issues an official written receipt therefore, or when any check, draft or wired funds sent or delivered to the Company is cleared and/or the Company's bank account credited with the relevant amount, and not at any earlier time.
    4. 4.4 If goods are for delivery outside the U.S., the Company, unless otherwise agreed with the Buyer, shall be entitled to payment by irrevocable letter of credit confirmed by a bank approved in writing by the Company. The Buyer shall reimburse to the Company any costs and expenses which are incurred by the Company in receiving payment by irrevocable letter of credit.
    5. 4.5 The Company reserves the right to charge interest at the rate of one and one-half percent (1.5%) per month, or portion thereof, compounded monthly, on all overdue accounts from the due date until the date of actual payment.
    6. 4.6 Failure to make payment on due date shall constitute a breach of contract, and without prejudice to any other rights which it may have against the Buyer, the Company may suspend all further deliveries of goods under all contracts then in existence between the Company and the Buyer until payment of all sums payable by the Buyer under that contract and of all other sums then due and payable to the Company by the Buyer has been made in full, and/or may terminate the contract.
  5. DELIVERY.
    1. 5.1 Although the Company will make every effort to deliver on the agreed date, time for delivery is not of the essence of the contract. Any quoted delivery date or period is a business estimate only. The Company shall be not liable for any loss or damage whatsoever caused by delayed delivery of goods. Delay in delivery will not entitle the Buyer to rescind the contract. Unless the Company notifies the Buyer otherwise, the expected delivery date will be referenced on the Invoice, and if not so referenced on the invoice, will be 90 days from invoice.
    2. 5.2 If any carrier of any consignment of goods receives an unqualified receipt therefore by or on behalf of the Buyer, the Company shall have no liability to the Buyer for loss of or damage in transit to such goods or for misdelivery or non-delivery thereof.
  6. FAILURE TO TAKE DELIVERY.
    1. 6.1 If goods are ready for delivery and the Buyer fails to take delivery at the time required by the contract the Company shall be entitled to invoice such goods forthwith; and to charge at rates giving an economic return for the handling and storage of such goods, and for their insurance, from the date of invoice to the date when the Buyer takes delivery or the Company disposes of the same.
    2. 6.2 If the Buyer fails to take delivery within thirty days of date of invoice it shall be deemed to have repudiated the contract and without prejudice to any other right which it may have against the Buyer, the Company shall be entitled to resell the goods.
  7. WARRANTY.
    1. 7.1 The Company represents and warrants as follows:
    2. 7.1.1 That the Products are free and clear of all liens and encumbrances except for Licensor's purchase money security interest defined in condition 4.1 above.
    3. 7.1.2 That, when compared to other commercially available water absorbents, the Products will absorb water more quickly, absorb more water and swell greater.
    4. 7.1.3 That the Products swell in water with an estimated product to liquid ratio of 1:510.
    5. 7.1.4 That the outer bag can be recycled.
    6. 7.1.5 That the Products will deflate within ten (10) days when protected from precipitation, placed on a dry and aeratable surface and with ambient humidity at less than 48%.
    7. 7.1.6 That the Products correspond with their MSDS specification.
    8. Buyer shall not offer any warranty on any Company product without Company's prior written approval. Company shall not be responsible for any warranty offered by Buyer, and Buyer agrees to hold Company harmless and indemnify Company with respect to any and all claims, expenses or losses including attorney's fees arising as a result of any such warranties.
    9. 7.2 The warranty contained in condition 7.1 above is given in lieu of and shall be deemed to exclude all other warranties and conditions whether express or implied and whether arising by common law, statute or otherwise other than relating to title to the goods. THIS CONSTITUTES THE SOLE WARRANTY MADE BY LICENSOR EITHER EXPRESS OR IMPLIED. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED WHICH EXTEND BEYOND THE FACE HEREOF, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
    10. 7.3 The warranty contained in condition 7.1 above does not apply to, and the Company accepts no responsibility for, defects in goods which have been tested in accordance with the Buyer's express contractual requirements and have satisfied such tests.
    11. 7.4 Unless otherwise expressly agreed by the Company, the warranty contained in condition 7.1 does not apply to and the Company accepts no responsibility for:
    12. 7.4.1 damage occurring in transit;
    13. 7.4.2 goods which have suffered or been subject to use otherwise than in accordance with the instructions or advice of the Company or undue wear and tear, accident, misuse, improper application, neglect or overloading; or
    14. 7.4.3 goods which have not been operated and maintained in accordance with written operation and maintenance instructions supplied by the Company.
  8. RISK.
    Risk in the contract goods shall pass to the Buyer on delivery FOB the Company’s facility.
    1. LIMITATION OF LIABILITY/ EXCLUSIVE REMEDY/ INDEMNIFICATION.
    2. 9.1 The Company shall be under no liability in respect of the quality, condition or description of the goods or for loss or damage, and in no event shall be liable for any incidental, punitive, special or consequential loss or damages howsoever caused to the Buyer or to any other person, and whether for breach of any express or implied provision of the contract or for negligence, breach of statutory or other duty on the part of the Company or otherwise arising out of or in connection with the performance or non-performance or purported performance of the contract. BUYER’S SOLE REMEDY SHALL BE REPLACEMENT OF NONCONFORMING PRODUCTS.
  9. INDEMNITY BY BUYER.
    The Buyer shall indemnify the Company against all liabilities, costs and expenses which the Company may incur by reason of any claim by any subsequent purchaser or user of the goods or of any product incorporating the goods or by reason of any claim by any relative or dependent of such purchaser or user arising from any defect or alleged defect in the goods or in such product, except and to the extent that such liabilities, costs and expenses arise from a breach by the Company of its obligations under these conditions, in which event the Company’s liability shall be limited as provided herein.
  10. RETURNED GOODS.
    1. 11.1 No contract for goods ordered may be cancelled by the Buyer, and except as otherwise provided in these conditions, no goods may be returned without the prior written consent of the Company.
    2. If the Company agrees to accept return of any goods the Buyer shall be obliged to affect the return of such goods in good condition and at its own risk and cost.
    3. 11.3 Notwithstanding any agreement to accept return of goods, the Company will not be obliged to accept delivery of any returned goods unless they are returned in packaging which are undamaged and which have not been opened since their dispatch by the Company.
  11. HEALTH AND SAFETY.
    1. 12.1 The Company has available up-to-date information and/or product literature concerning the conditions necessary to ensure that the goods supplied will be safe and without risk to health when properly used. This information is and will remain available from the Company.
    2. 12.2 The Buyer shall be solely responsible for and shall keep the Company indemnified against any loss, liability or expenses arising directly or indirectly from use of the goods other than in accordance with their specification or the Company's operating instructions or the information and product literature referred to in condition 12.1 or (where no such specifications or instructions exist) in a manner which could not reasonably be considered to be safe and without risk.
  12. EXPORT.
    In the case of any goods to be exported from the U.S., the Buyer is responsible for obtaining import authorizations, and the Company shall have no obligation to dispatch the goods unless and until the Buyer has provided all documentation and information necessary for export and import of the goods to be effected.
  13. TECHNICAL DATA.
    While every effort has been made to ensure the accuracy of any technical data provided to the Buyer, the Company accepts no liability arising from errors or omissions therein. Illustrations, photographs, weights, dimensions and descriptions are illustrative and for general guidance and do not form the basis of any sale by description. Performance figures quoted by the Company for its products are similarly illustrative and for general guidance, are based upon experience and are not warranted.
  14. FORCE MAJEURE.
    The Company shall not be liable for failure to comply with any of its obligations under the contract or agreement of the parties in the event that compliance is delayed or prevented by any cause whatsoever beyond its reasonable control, including, but not limited to, war, riot, strike, lockout, act of God, storm, fire, earthquake, explosion, flood, confiscation, action of any government or government agency or shortage.
  15. NOTICE.
    Any notice shall be in writing sent by first class prepaid postage or facsimile transmission confirmed by first class prepaid postage. Any notice to the Company shall be addressed to the Company at its registered office and to the Buyer at the address notified by the Buyer to the Company for that purpose or if none is so notified to the address of the Buyer last known to the Company. A notice given by post shall be deemed served forty-eight hours after posting and by facsimile at the time of transmission thereof.
  16. GOVERNING LAW.
    These conditions and the contract shall be subject to and construed in accordance with the law of the state of Tennessee, and the federal laws of the U.S., if applicable, and the parties hereby agree to accept the exclusive jurisdiction of the state and federal courts located in Hamilton County, Tennessee, U.S. in all matters connected therewith or relating thereto.