PDX Chemical LLC - Credit Application Terms and Conditions

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ALL TRANSACTIONS BETWEEN PDX CHEMICAL LLC, A TEXAS LIMITED LIABILITY COMPANY (“PDX”), AND THE BUYER AND/OR APPLICANT FOR BUSINESS CREDIT (“APPLICANT”) ARE GOVERNED BY THESE TERMS AND CONDITIONS. ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM THESE TERMS AND CONDITIONS ARE HEREBY OBJECTED TO, REJECTED AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY COUNTERPROPOSALS BY APPLICANT SHALL NOT OPERATE AS A REJECTION OF ANY CONTRACT BETWEEN PDX AND THE APPLICANT, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S).

Authorization and Credit Information

Applicant hereby authorizes all applicable banks and businesses to release information concerning Applicant’s business credit and historical balances to PDX. Applicant further authorizes PDX to contact any references, banks, or credit reporting agencies to obtain or verify credit information, including consumer and/or commercial credit reports, at any time before or during PDX’s business relationship with Applicant.

Any misrepresentation in this application will be considered evidence of fraud since this information is the basis for extending credit. As an inducement to grant credit, the Applicant warrants that all information submitted is true and correct.

1. Credit Terms and Payment Obligations

All invoices are due and payable per the terms stated on each invoice or project/job agreement. If not otherwise specified, terms are Net 30 from the invoice date. A finance charge of 1.5% per month (18% annually) will apply to all past-due balances. Applicant agrees to make payments sufficient to keep the account current and within the established credit limit. PDX reserves the right to modify, suspend, or terminate credit terms at any time.

2. Collection and Legal Fees

In the event any third party is employed to collect outstanding amounts owed by Applicant to PDX under any contract between Applicant and PDX, including any purchase order submitted by Applicant and accepted by PDX, Applicant agrees to pay all reasonable collection costs, including attorneys’ fees and court costs, whether or not litigation is initiated. Applicant and Guarantor each agree to pay and perform all obligations incurred by Applicant under all such contracts with PDX, regardless of credit limit extended by PDX to Applicant.

3. Credit Investigations and Reporting

Applicant and any Guarantor authorize PDX Chemical LLC to obtain business and/or personal credit reports and to perform background credit investigations from time to time. This includes contacting trade references, creditors, and financial institutions. Applicant agrees to execute all documents and take all such actions reasonably requested by PDX in connection with such investigations.

4. Title to Products, Returns and Restocking

PDX retains the right and title to the products sold to Applicant until PDX is paid in full for the products. Applicant shall obtain the right and title to the products upon payment to PDX of the purchase price and any taxes, excise or other charges. Except as specifically set forth to the contrary in a written instrument executed by PDX, all sales are final and no items may be returned without the prior written approval of PDX. Approved returns may be subject to a restocking fee of up to 15%. Custom or special-order products are not eligible for return under any circumstances.

5. Change in Business Ownership or Structure

Applicant shall not, at any time during which Applicant’s obligations to PDX remain unperformed in whole or in part, without the prior written consent of PDX, which consent shall not be unreasonably withheld, take any action that would result in a change in the voting control of Applicant, whether by means of a sale or transfer of equity interests, substantially all of Applicant’s assets, merger, reorganization or business combination, or a change in Applicant’s name, legal structure, business form or jurisdiction of organization. Applicant and Guarantor remain liable for all obligations incurred before such notice is received.

6. Security Interest

Applicant hereby grants PDX a purchase-money security interest in all products sold by PDX to Applicant, including inventory containing such products, and in any accounts receivable arising from their resale. Applicant authorizes PDX to file any necessary UCC financing statements and take all such other actions as may be necessary to perfect its security interest. Applicant agrees to execute all documents and take all such actions reasonably requested by PDX to perfect or continue to perfect such security interest.

7. Product Use and Indemnity

Applicant assumes full responsibility for the proper selection, handling, storage, use, application, and disposal of all products purchased by Applicant from PDX. Applicant agrees to comply with all applicable federal, state, and local laws and regulations governing such products. Applicant shall indemnify and hold harmless PDX against any claims, losses, or liabilities arising from or related to the acts or omissions of Applicant.

8. Disclaimer of Warranties

EXCEPT FOR ANY WARRANTIES EXPRESSLY GRANTED BY PDX TO APPLICANT IN A WRITTEN DOCUMENT SIGNED BY PDX WITH RESPECT TO A PRODUCT SOLD BY PDX TO APPLICANT, PDX MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO APPLICANT OR ANY OTHER PERSON WITH RESPECT TO THE PRODUCTS, AND PDX SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD BY PDX ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY PDX IN WRITING. PDX’S SOLE OBLIGATION FOR A REMEDY TO APPLICANT SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. APPLICANT ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES. UPON APPLICANT’S REQUEST, PDX WILL TRANSFER TO APPLICANT ANY TRANSFERRABLE WARRANTIES GIVEN BY A THIRD-PARTY MANUFACTURER FOR ANY PRODUCTS SOLD BY PDX TO APPLICANT, BUT APPLICANT AGREES THAT PDX SHALL HAVE NO LIABILITY OF ANY KIND FOR THE ENFORCEMENT OF OR ANY CLAIMS ARISING UNDER SUCH MANUFACTURER WARRANTIES.

9. Limitation of Liability

No claim by Applicant of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of product delivered or non-delivery or any actions or omissions of PDX in connection with investigating Applicant’s creditworthiness or extending or refusing to extend credit to Applicant, shall be greater in amount then the purchase price for the products in respect of which damages are claimed. IN NO EVENT SHALL PDX BE LIABLE TO APPLICANT FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE PRODUCTS SOLD BY PDX TO APPLICANT OR THE INVESTIGATION OF APPLICANT’S CREDITWORTHINESS OR THE EXTENSION OF OR REFUSAL TO EXTEND CREDIT TO APPLICANT, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.

10. Dispute Resolution and Governing Law

Any dispute, controversy or claim arising out of or related in any way to these terms and conditions or any sale and purchase of products between PDX and Applicant or any transaction contemplated hereby which cannot be amicably resolved by the parties shall be solely and finally settled by arbitration administered by the American Arbitration Association in accordance with its commercial arbitration rules. Judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place before a panel of arbitrators sitting in Houston, Harris County, Texas. The arbitrators will be bound to adjudicate all disputes in accordance with the laws of the State of Texas. The decision of the arbitrators shall be in writing with written findings of fact and shall be final and binding on the parties. The arbitrator shall be empowered to award money damages, but shall not be empowered to award incidental damages, consequential damages, indirect damages, statutory damages, special damages, exemplary damages, punitive damages or specific performance. Each party shall bear its own costs relating to the arbitration proceedings irrespective of its outcome. This section provides the sole recourse for the settlement of any disputes arising out of, in connection with, or related to these terms and conditions.

11. Application of Payments

PDX may apply any payments received toward any outstanding balances, invoices, or fees in any order it deems appropriate.

12. No Right to Setoff

Applicant shall have no right of set-off or withholding, and no deduction of any amounts due from Applicant to PDX shall be made without PDX’s prior, express written approval.

13. Reservation of Rights

If Applicant should fail in any manner to fulfill the terms and conditions hereof, PDX may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to PDX.

14. No Assignment

This contract between Applicant and PDX is not transferable by either party without the prior written consent of the other party, except that PDX may assign this Agreement without Applicant’s consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of PDX’s assets.

15. Waiver of DTPA (Texas Only)

If applicable under Texas law, Applicant waives its rights under the Texas Deceptive Trade Practices-Consumer Protection Act (DTPA), Section 17.41 et seq., Business & Commerce Code, after consultation with legal counsel of Applicant’s choice. Applicant affirms that this waiver is knowing and voluntary.

16. Miscellaneous

These terms and conditions are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated hereby, notwithstanding any other terms that might be contained in any purchase order or other document received from Applicant or submitted to PDX. These terms and conditions constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. No waiver by PDX of any of these terms and conditions or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these terms and conditions. If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. The paragraph headings are for convenience only and shall not be used in interpreting or construing these terms and conditions. These terms and conditions may be executed in counterparts and delivered electronically.