PRIME ELEMENT TERMS AND CONDITIONS OF PURCHASE

The following Standard Terms and Conditions of Purchase (“Terms”) apply to transactions that do not have a written agreement, duly executed by these parties. If there is such an agreement, then those terms shall be the terms that govern the transaction and relationship of the parties. In the absence of such a written agreement, duly executed by both parties, then these Terms provide you (“Seller”) with the guidelines and legal stipulations concerning this purchase order (“Order”) issued by PRIME ELEMENT (“Buyer”) for the goods and/or services that are described on the face of the Order. Any proposal or document from Seller that includes different or additional terms that vary from these Terms are objected to and disallowed. Notwithstanding the foregoing, any such counterproposals by Seller shall not operate as a rejection of the contract of purchase, but as a rejection of the additional or different term(s)

Warranty. Seller represents and warrants that with respect to all materials, supplies and equipment (herein collectively referred to as “materials”) delivered and services furnished hereunder: (i) title shall be good, merchantable, rightful and the materials free of any security interest, lien or encumbrance; (ii) that materials will be new, free from defects in material and workmanship, be of quality, size, description and dimension required by Buyer, be fit for the purpose for which they are purchased and will meet the specifications, if any, and that Seller’s services will be performed in a skillful and workmanlike manner; and (iii) the materials, the process by which they are made, the use for which they are designed by Seller and Buyer’s use of the materials will not infringe any patent, trademark, copyright or other rights of any third parties (“Intellectual Property Rights”), (iv) the prices for the goods or services sold to Buyer under this Order are not less favorable than those currently extended to any other customer for the same or similar goods and/or services in equal or lesser quantities, and (v) Seller shall not act in any fashion or take any action that will render Buyer liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act 2010), which prohibits the offering, giving, or promising to offer or give or receiving, directly or indirectly, money or anything of value to any third party to assist it, them or Buyer in retaining or obtaining business or in procuring the goods or services. Buyer’s inspection, test, acceptance, or use of the goods shall not affect Seller’s obligations under these warranties. Seller shall replace or correct, at Buyer’s option and at Seller’s cost, defects of any goods not conforming to these warranties. If Seller fails to correct defects in or replace nonconforming goods within ten (10) days from the date the Buyer notifies Seller of the defect or defects, Buyer may, on ten (10) days prior written notice to Seller, either (i) make such corrections or replace such goods and charge Seller for all costs incurred by Buyer, or (ii) revoke its acceptance of the goods in which event Seller shall be obligated to refund the purchase price and make all necessary arrangements, at Seller’s cost, for the return of the goods to Seller. All warranties of Seller herein or that are implied by law shall survive any inspection, delivery, acceptance, or payment by Buyer. Any attempt by Seller to limit, disclaim, or restrict these warranties or any remedies of Buyer, by acknowledgment or otherwise, in accepting or performing this Order, will be null, void, and ineffective without Buyer’s written consent. The foregoing is in addition to any and all other express or implied warranties applicable to the materials purchased hereunder.
Compliance with Laws; Standards and Testing. Seller represents and warrants that all materials furnished hereunder, and Seller’s manufacturing thereof, complies with all applicable laws, ordinances, rules and regulations (“Laws”) and each chemical substance sold hereunder has been reported to the US Environmental Protection Agency (EPA) as required by the Toxic Substances Control Act and regulations, for inclusion in the inventory of chemical substances compiled by the Administrator of the EPA. Seller shall treat materials prior to shipment to Buyer in accordance with testing standards requested by Buyer and shall furnish Buyer certifications in support thereof.
Indemnity. Seller will defend, indemnify and hold harmless Buyer, its affiliates, vendors, and their officers, directors, shareholders, employees, and agents from and against any and all loss, liability and expense by reason of (i) any actual or alleged violation of Laws, (ii) any actual or alleged infringement of Intellectual Property Rights, (iii) injury, death or property damage resulting, in whole or in part, from any negligent act or omission on the part of the Seller or which may result from the installation, operation or use of the materials furnished hereunder, (iv) a defect in the manufacture or design of the materials supplied hereunder, or (v) any breach or alleged breach by Seller of any representation, warranty, or other provision of these terms and Conditions of Purchase. If the use or sale of goods is enjoined because of an actual or threatened infringement claim, Seller shall, at its own expense, either obtain on behalf of the Buyer the right to continue to use or sell the Goods, substitute an equivalent product reasonably acceptable to Buyer in its place, or reimburse Buyer the purchase price of such Goods. Upon notification, Seller shall promptly assume full responsibility for the defense of any suit or proceeding which may be brought against Buyer or any of its subsidiaries, affiliated companies, agents and vendors in connection with the above, or for alleged unfair competition resulting from similarity in design, trademarks, or appearance of the materials or equipment. Seller shall further indemnify and hold Buyer, its subsidiaries, affiliated companies, agents and vendors harmless from any and all expenses, losses, claims, royalties, profits, and damages, including court costs and attorneys’ fees, resulting from the bringing of such suits or proceedings or the threat thereof and from any settlement, decree or judgment therein. Buyer reserves the right to control any such suit or proceeding.
Cover; Delivery. In case of default by Seller, Buyer may obtain materials and services from other sources and hold Seller responsible for any damages occasioned thereby. The dates of delivery and quantities specified herein are of the essence for this Order and delivery must be effected within the specified time period. If deliveries are not made on time and in the quantities specified, Buyer reserves the right to cancel and to purchase the materials and/or services elsewhere and hold Seller accountable therefore. Seller shall cooperate with Buyer in respect to all customs formalities applicable to the import or export of the materials, shall be responsible for determining proper import or export classifications, and shall provide Buyer documentation to Buyer’s satisfaction for such classifications.
Prices. Orders shall not be filled at prices higher than those quoted or charged to Buyer or specified herein. Unless otherwise agreed in writing, prices include packaging, labeling, crating, taxes, and duties. Unless otherwise agreed in writing, all prices include shipping and delivery ex-works INCOTERMS 2022.
Inspection and Rejection. Materials are subject to inspection, test, and acceptance by BUYER and the ultimate Buyer. Buyer shall have a reasonable number of days from the date of arrival to inspect the materials and notify Seller of any non-conformity to the Order specifications (including quantity and delivery dates). Such inspection may not occur until final sale of the materials to Buyer’s customers. Buyer reserves the right to reject any material, even after delivery and inspection at customer’s site, which does not fulfill the specifications of the Order or time of delivery and (i) return rejected materials to Seller at Seller’s risk and expense for full credit at the Order price without prejudice to any right to other damages for such breach, (ii) to require Seller at Seller’s expense to replace rejected materials at the unit price of this Order, or (iii) consider this Order breached as to the rejected quantity and cancelled as to any unfulfilled portion of this Order, and to hold Seller liable for such breach and cancellation. Seller is not relieved of the responsibility imposed by this clause, either as to proper packaging, quantity of materials or specifications, by reason of acceptance by Buyer.
Changes: At all times Buyer will have the right to make changes to this Order, including changes to drawings, designs, configurations, specifications, quantities, methods of shipment or packing and delivery schedules or location of delivery. If any such changes cause an increase or decrease in the cost of or the time required for the performance of any work under this Order, an equitable adjustment will be made in the contract price or delivery schedule, or both, and this Order will be modified in writing accordingly. Nothing in this Section, including any disagreement with Buyer as to any claimed adjustment, will excuse Seller from proceeding with this Order as changed. Any claim by Seller for adjustment under this Section 7 must be detailed in writing and delivered to Buyer within five (5) days after the date Seller receives notification of change. Any change will be authorized only by a duly executed amendment to this Order. Information, such as technical information or guidance provided to Seller by representatives of Buyer, will not be construed as a change within the meaning of this Section. If Seller considers that the conduct of any of Buyer’s employees has constituted a change under this Order, Seller will immediately notify Buyer’s central procurement office, in writing, as to the nature of the change and any proposed adjustment, which will be then subject to this Section 7.
Confidential or proprietary information: Notwithstanding any document marking to the contrary, any knowledge or information that the Seller has disclosed or may later disclose to Buyer, and which in any way relates to the goods or services covered by this Order will not, unless otherwise specifically agreed to in writing by Buyer, be deemed to be confidential or proprietary information, and will be acquired by Buyer, free from any restrictions.