1.        GENERAL.  These Terms and Conditions of Sale and the non-conflicting provisions in West Coast Waterjet’s quotation, if any, and acknowledgment or invoice from West Coast Waterjet (collectively, the “Agreement”) govern in all respects all services (“Services”) provided by West Coast Insulation, Inc. d/b/a West Coast Waterjet (“West Coast Waterjet”) to the purchaser (“Customer”) for precision cutting of material to provide finished product (“Product”). No terms stated by Customer in any purchase order, acceptance or acknowledgement will become part of the Agreement unless expressly agreed to and accepted by West Coast Waterjet in writing and West Coast Waterjet hereby rejects any additional or different terms. The Agreement constitutes the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral, written, or electronic and all other communications between the parties relating to the subject matter of the Agreement. West Coast Waterjet’s quotations are offers that may only be accepted in full. All typographical or clerical errors made by West Coast Waterjet in any quotation, acknowledgment or publication are subject to correction.

2.        FEES AND PAYMENT.  Fees for Product and Services will be itemized separately on West Coast Waterjet’s invoice. Prices for materials quotations are valid for 10 business days from quotation and prices for precision cutting services are valid for 30 days from quotation, unless otherwise specified. New pricing may be necessary once those deadlines are exceeded. Fees are exclusive of all shipping and handling charges, duties, tariffs, value added taxes, sales taxes, use taxes, or assessments levied by any federal, state, municipal or other government authority that may be owed by Customer as a result of the purchase of the Product and Services, or other charges which may be imposed upon the sale or use of the Product so that West Coast Waterjet receives the full amount of fees payable without reduction for any such taxes or other fees or charges. Such charges paid by West Coast Waterjet will be for Customer’s account. Any claim for exemption from such charges must be plainly designated on the face of the order and accompanied by all required exemption certificates. Unless specifically stipulated on an invoice or otherwise agreed to in writing by the parties, fees are in U.S. Dollars and are due upon Customer’s receipt of the invoice, without right to deductions or set-off. West Coast Waterjet may require payment to be made C.O.D. or via irrevocable letter of credit in favor of, and acceptable to, West Coast Waterjet, established at Customer’s expense, or require Customer to provide further assurance of payment satisfactory to West Coast Waterjet. If payment is not made when due, West Coast Waterjet may suspend all future delivery or other performance with respect to Customer without liability or penalty and, in addition to all other sums payable under the Agreement, Customer shall pay to West Coast Waterjet (a) the reasonable costs and expenses incurred by West Coast Waterjet in connection with all actions taken to enforce collection or to preserve and protect West Coast Waterjet’s rights hereunder, whether by legal proceedings or otherwise, including without limitation reasonable attorneys’ fees, court costs and other expenses, and (b) interest on all amounts unpaid after 30 days charged at the lesser of (i) the rate of 1.5% per month (18% annum) or (ii) the highest rate permitted by law.

3.        SHIPMENT; DELIVERY; FORCE MAJEURE.  Unless otherwise agreed to in writing by the parties, shipment and delivery of the Product are EXW West Coast Waterjet’s facility (Incoterms^® 2010). Risk of loss and title are transferred to Customer upon delivery to the carrier. All shipment, insurance or similar charges for delivery of Product shall be borne by Customer and must be prepaid prior to shipment unless otherwise agreed in writing by West Coast Waterjet. All claims for loss or damage in transit or for non-delivery shall be made by Customer against the carrier. At West Coast Waterjet’s option, Product may be shipped in advance of the requested shipment date or in installments. Any claims against West Coast Waterjet for shortages by it in making shipments must be made in writing to West Coast Waterjet within 10 days after receipt of shipment and any claims for shortages occurring thereafter must be made by Customer to the carrier. All delivery information (including time for shipment) is approximate. West Coast Waterjet’s sole responsibility is to use reasonable commercial efforts to meet specified shipment dates. Customer expressly absolves West Coast Waterjet from any liability for any loss or damage resulting from a failure to deliver or delays in delivery caused by any conditions related to, or caused by, labor dispute, fire, flood, governmental act or regulation, riot, inability to obtain supplies or shipping space, plant breakdown, power failure, delay or interruption of carriers, accidents, acts of God, acts or omissions of Customer, or other causes beyond West Coast Waterjet’s reasonable control.

4.        CANCELLATION; FAILURE TO TAKE DELIVERY.  The Agreement, in whole or in part, cannot be canceled or postponed by Customer except with West Coast Waterjet’s prior written consent and upon terms that will indemnify West Coast Waterjet against loss. In the event of approval of a return request, (a) any applicable packing, shipping, and delivery costs will be at Customer’s expense and (b) all returns must be shipped freight prepaid at Customer’s expense. If Customer delays, fails, or refuses to take delivery of Product or indicates its intention to do so, then the Product will be deemed to have been delivered when West Coast Waterjet was willing and able to so deliver. If shipment of Product is postponed or delayed by Customer, Customer shall reimburse West Coast Waterjet for any and all reasonable additional expenses, including but not limited to storage and transportation, resulting therefrom.

5.        MATERIAL.

5.1      Customer-Supplied Material.  When supplying material for cutting, Customer is responsible for ensuring the material is flat (e.g., not bowed or warped). Customer shall not provide any material containing toxic or hazardous elements (e.g., lead, asbestos, etc.) and assumes all liability for costs of cleanup of toxic or hazardous waste. All scrap metal becomes the property of West Coast Waterjet unless Customer requests, prior to cutting, return of the scrap material. Customer accepts responsibility for the performance of any material supplied by Customer and any damage that may occur during the cutting process. Buyer must notify West Coast Waterjet prior to drop off of materials; West Coast Waterjet is not responsible for lost materials for which it has not received such drop off notification.

5.2      High Risk Materials. West Coast Waterjet’s is not responsible for damage to High Risk Material (as designated on the quotation), which may shatter or otherwise be damaged during cutting due to the inherent nature of the material. West Coast recommends that Customer be present during the cutting of High Risk Material to observe performance of the material.  Customer shall bear the cost of replacement material if High Risk Material is damaged during the cutting process.

6.        DUTY TO INSPECT.  Customer must inspect the Products upon receipt at the destination. Customer must notify West Coast Waterjet of any Product non-conformity within 10 days after delivery of Product. Customer’s failure to inspect the Products and give written notice to West Coast Waterjet of any alleged defects or non-conformity within 10 days after delivery constitutes Customer’s irrevocable acceptance of the Products delivered.Any use or alteration of the Products by Customer, its agents, employees, customers, transferees or licensees, for any purpose after delivery thereof, constitutes Customer’s irrevocable acceptance of the Products.

7.        LIMITED WARRANTY; REMEDY; WARRANTY DISCLAIMERS.

7.1      Limited Warranty.  West Coast Waterjet warrants it will perform the Services to provide Product as described in the Agreement and will perform the Services in a good and workmanlike manner.

7.2      Warranty Exclusions.  West Coast Waterjet’s warranty is void and of no effect if a defect in Product has arisen from damages occurring to the Product subsequent to delivery. To the extent that Customer or any of its agents has supplied specifications, (including without limitation, cut, quality and tolerance), information, representation of operating conditions or other data to West Coast Waterjet that are used in the preparation of West Coast Waterjet’s quotation and the performance of the Services, and actual operating or use conditions or other conditions differ from those represented by Customer, any warranties or other provisions contained in this warranty that are affected by such conditions are null and void.

7.3      Remedy.  All warranty claims must be brought within 10 days after delivery of Product. Customer’s sole and exclusive remedy, and West Coast Waterjet’s only obligation for breach of its limited warranty, shall be, at West Coast Waterjet’s option in its sole discretion, to either (a) re-perform the Services at West Coast Waterjet’s expense using new material, or (b) return defective or nonconforming Product to West Coast Waterjet and issue a credit to Customer in the amount of the unit cost of the defective Product. Buyer must return defective or non-conforming Product to West Coast Waterjet, freight prepaid, after Customer has provided acceptable documentation, and received a return merchandise authorization number from West Coast Waterjet. The warranty is conditioned upon West Coast Waterjet’s examination of the items disclosing to its reasonable satisfaction that the claimed Product defect or nonconformity was not caused by (i) abuse, improper handling, installation, or repair, misuse, alteration or accident, or (ii) inaccurate or inadequate specification by Buyer. Modification of Product by anyone other than West Coast Waterjet will invalidate the warranty.

7.4      Disclaimers.  THE EXPRESS WARRANTY SET FORTH IN THIS SECTION ARE IN LIEU OF, AND WEST COAST WATERJET DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THE SERVICES AND THE PRODUCT, INCLUDING WITHOUT LIMITATION ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT WEST COAST WATERJET HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING. IN ADDITION, WEST COAST WATERJET EXPRESSLY DISCLAIMS ANY WARRANTY OR REPRESENTATION TO ANY PERSON OTHER THAN CUSTOMER WITH RESPECT TO THE SERVICES AND THE PRODUCT.

Except for West Coast Waterjet’s express warranty under this Section 7, Customer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Products, either alone or in combination with other products or components, and shall indemnify, defend, and hold West Coast Waterjet harmless for any such loss, damage or injury.

8.        PRODUCT SUITABILITY.  West Coast Waterjet’s quality controls are designed to meet stated ISO quality standards. West Coast Waterjet cannot guarantee that the Product meets all applicable safety and quality requirements in each jurisdiction. Customer assumes responsibility for compliance with the safety and quality standards and regulations in the localities in which Product will be shipped, sold and used.

9.        EXPORT COMPLIANCE.  Customer shall strictly comply with and refrain from exporting or re-exporting the Products in violation of United States’ laws regarding trade restrictions and embargoes, as such laws may be amended from time to time.

10.      LIMITATION OF LIABILITY; TIME FOR CLAIMS; INDEMNIFICATION.  West Coast Waterjet is not liable for incidental, special, indirect, consequential or other similar damages, including but not limited to loss of profit or revenues, damage for loss of use of the Product, damage to property, or claims of third parties, including personal injury or death on account of use of the Product or failure of West Coast Waterjet to adequately warn against, or instruct on, the dangers of the Product or the safe and proper use of the Product, whether or not West Coast Waterjet has been advised of the potential for such damages. West Coast Waterjet’s total liability under the Agreement from any cause (except liability from personal injury caused by West Coast Waterjet’s gross negligence), whether arising under contract, warranty, tort (including negligence), strict liability, product liability or any other theory of liability, is limited to the lesser of Customer’s actual damages or the price paid to West Coast Waterjet for the specific Product that is the subject of Customer’s claim. All claims against West Coast Waterjet must be brought within one year after the cause of action arises, and Customer expressly waives any longer statute of limitations. Customer shall defend, indemnify, and hold West Coast Waterjet and its officers, directors, agents, representatives, employees, suppliers, and affiliates harmless from any and all sums, claims, costs, duties, suits, actions, losses, damages, legal fees, obligations, liabilities, and liens arising out of (a) Customer’s purchase, use, possession, ownership, operation, condition, transfer, export, transportation or disposal of the Product, (b) Customer’s violation or alleged violation of any foreign, federal, state, county or local laws or regulation, including without limitation, the laws and regulations governing product safety and labor practices, and (c) Customer’s breach of the Agreement.

11.    INTELLECTUAL PROPERTY.  All equipment, designs (including drawings, plans and specifications), estimates, prices, notes, electronic data and other documents or information prepared or disclosed by West Coast Waterjet in connection with the Product sold under the Agreement remain West Coast Waterjet’s exclusive property. Customer shall not disclose any such material to third parties without West Coast Waterjet’s prior written consent.

12.      MISCELLANEOUS.  The Agreement will be governed by and construed in accordance with the laws of the State of Washington, U.S.A., without regard to its conflicts of law doctrines. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement. The exclusive jurisdiction and venue for all actions arising out of the Agreement, including any amendments or changes thereto, is exclusively in the federal or state courts having jurisdiction in King County, Washington, U.S.A. and Customer agrees to submit to such jurisdiction and venue. West Coast Waterjet’s rights and remedies under the Agreement are cumulative and in addition to any other rights or remedies provided by law or equity. The Agreement is binding upon and inures to the benefit of the parties to the Agreement and their respective successors, permitted assigns and transferees. Nothing in the Agreement confers upon any person other than West Coast Waterjet and Customer any right or remedy under or by reason of the Agreement. West Coast Waterjet’s failure to insist on strict performance of the Agreement or to enforce a default upon the occurrence of any single, repeated, or continuing violation of any particular term or condition of the Agreement, shall not be considered a waiver of West Coast Waterjet’s right to insist on strict performance of the Agreement or to enforce a default with respect to the violation of any other term or condition or, at any later time or upon any subsequent occurrence, with respect to that particular term or condition. If any of the provisions of the Agreement are held to be invalid, illegal, or unenforceable, then that provision will be ineffective only to the extent of its invalidity and the unaffected provisions of the Agreement will be unimpaired, and remain in full force and effect. Each party’s obligations that by their nature are intended to survive beyond the termination, cancellation or expiration of the Agreement will survive.