TERMS
& CONDITIONS

1. Terms

• The terms and conditions contained herein (these “Terms and Conditions”) are a material part of, and are incorporated by reference into, each quotation or quote form and each purchase order submitted by the customer (“Buyer”) and accepted by Macro Oceans, Inc., a Delaware corporation (“Seller”) (collectively with these Terms and Conditions, the quotation, quote form, purchase order and/or Seller’s acknowledgement form, the “Agreement”). The Agreement is made by and between Seller and Buyer and is the exclusive binding agreement between the parties regarding the products or services purchased from Seller (“Product(s)”), unless otherwise expressly agreed in writing by Seller and Buyer. Seller and Buyer may be referred to herein individually as, a “Party,” and together as, the “Parties.”

• The acceptance of any or all of Buyer’s purchase orders is conditional upon Buyer’s assent to these Terms and Conditions, in lieu of the terms contained in Buyer’s purchase order. Seller hereby rejects all provisions contained in Buyer’s purchase order and/or communications from Buyer that are in addition to, conflict with, or are inconsistent with the terms and/or conditions contained herein. Seller’s failure to object to any of the provisions contained in Buyer’s purchase order and/or communication shall not be deemed a waiver of these Terms and Conditions under any circumstances.

2. Orders

• Buyer will be billed at the prices specifically quoted in writing by Seller to Buyer. All orders are subject to acceptance or rejection by Seller.

• All published prices are subject to change without notice.

• Except to the extent expressly specified in the Agreement, all prices quoted and billed shall be exclusive of transportation fees, insurance, taxes (including without limitation any use tax, sales tax or similar tax), license fees, withholding taxes, customs fees, duties, and other charges related thereto, and Buyer shall report and pay any and all such shipping charges, premiums, taxes, fees, duties and other charges related thereto, and shall indemnify and hold Seller harmless therefrom. Seller may add any applicable sales tax to the prices applicable to order of Products unless it receives adequate documentation from Buyer of Buyer’s exemption from such sales tax.

• The sale of any of Seller’s Products to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property license or rights whatsoever.

• Once accepted by Buyer, the Agreement, including payment obligations thereunder, constitute a binding order by Buyer. The Agreement will be deemed accepted by Buyer when Buyer places an order by either (i) issuing a purchase order for the Products on the Agreement, or (ii) sending an email or other writing accepting the Agreement. All orders issued by Buyer in accordance with the Agreement shall be deemed accepted by Seller unless Seller notifies Buyer of Seller’s rejection of an order. The Agreement and orders issued electronically shall be deemed valid writings and may be relied upon by Seller and Buyer.

3. Fees & Payments

• Unless otherwise agreed to in writing, payment shall be paid net 30 days from the date of invoice. The Agreement may specify additional payment terms, including, without limitation, terms applicable to international orders. Past due balances shall be subject to a finance charge of the lesser of 1.5% per month or the maximum amount allowed by law. Buyer agrees to accept partial shipments in satisfaction of a single order; when partial shipments are made, pro-rata payments shall become due in accordance with the designated terms for each shipment. Seller may withdraw credit, suspend or cancel performance under any orders or delay delivery of Products in the event Buyer fails to comply with these payment terms.

• If Buyer becomes insolvent or bankruptcy proceedings are instituted against Buyer or Buyer makes an assignment for the benefit of its creditors, any such event shall be deemed a material default, entitling Seller to cease performance under an accepted order and to avail itself of all legal or equitable remedies it may have against Buyer. In the event of a default by Buyer under these terms, and the matter is placed in the hands of an attorney for collection, or suit is brought at law, or in equity, to enforce the provisions herein, Buyer agrees to pay reasonable attorneys’ fees together with costs in addition to the amount due under said order.

4. Delivery / Title / Risk

• Unless otherwise agreed to in writing by Seller, shipment shall be Ex Works (Incoterms 2020) Seller’s shipping location and the manner of shipment shall be any commercially reasonable option determined at Seller’s option or as agreed by the Parties. Buyer shall be responsible for all shipping charges unless otherwise agreed by the Parties. Seller reserves the right to ship Products freight collect and to select the means of transportation and routing.

• Unless otherwise requested by Buyer, Seller may insure the full value of the Product or declare full value to the transportation company at the time of delivery and all such freight; provided that such insurance costs shall be for Buyer’s account.

• Any and all taxes levied on or with respect to Products after delivery to the Ex Works point described in Section 4(a) above, including without limitation taxes levied on or assessed to Seller by reason of its retention of title, shall be paid by Buyer. In the event Seller, in its sole discretion, chooses to pay such taxes, then Buyer shall reimburse Seller in full upon demand.

• Shipping dates are approximate estimates only and are based upon prompt receipt of all necessary information from Buyer. Seller shall not be liable for delay in delivery or non-delivery due to causes beyond Seller’s reasonable control, including but not limited to, any Force Majeure Event (as defined below). Seller reserves the right, in its sole discretion, to allocate inventories and current production and to deliver partial shipments when, in its opinion, such allocation is necessary due to any such circumstances or causes. No penalty clause of any kind shall be effective.

• Risk in the Products shall pass from Seller to Buyer upon delivery of the Products by Seller from Seller’s factory, warehouse, or shipping location to the Ex Works point described in Section 4(a) above. Notwithstanding delivery and the passing of risk in the Products, or any other provision set forth herein, title in the Products shall not pass to Buyer until Seller receives in cash or cleared funds payment in full of the price of the Products and until all other sums due from Buyer to Seller have been finally paid in full; and until such time, if deemed necessary by Seller, Buyer automatically grants to Seller a purchase money security interest in the Products to secure the payment of the purchase price of the Products and all other amounts due to Seller from Buyer. In furtherance thereof, Buyer shall provide Seller with financing statements and other documents requested by Seller to evidence the same.

5. Inspections & Claims

• Buyer shall inspect the Products upon delivery. If the Products do not meet Seller’s written specifications or standards for the particular Products or the quantity ordered, Buyer must notify Seller within fourteen (14) days of delivery.

• Buyers must make a notation of damage, missing Product, or missing security tape on the proof of delivery presented by the driver for signature.

• If Buyer so notifies Seller that the Products do not meet the agreed upon Seller specifications, standards or quantity, Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive obligation, is a re-delivery of the Product(s) by Seller so long as Seller reasonably can validate such failure or deficiency.

• No returns may be made unless Buyer has obtained the prior, written authorization from Seller.

6. Cancellations & Rescheduling

• All orders and the Agreement are firm and non-cancelable by Buyer except as set forth below. Buyer is responsible for the full price of Products as ordered. Termination of an order or the Agreement by mutual agreement will be subject to a mutually agreed upon cancellation charge.

• Buyer may contact Seller to request a cancellation of an order and/or the Agreement. Cancellation of orders approved by Seller that have been staged for pickup will incur a cancellation fee of fifty dollars ($50). Restocking fees may also apply.

7. Liability

• IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, REMOTE, COVER, SPECIAL, EXEMPLARY, PUNITIVE, OR EXEMPLARY DAMAGES, OR DAMAGES FOR LOST PROFITS OR REVENUES, LOSS OF ANTICIPATED PROFITS, LOST BUSINESS, LOSS OF USE, COSTS FOR REPLACEMENT GOODS OR FOR FINISHED GOODS OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THE AGREEMENT OR ANY PRODUCTS ORDERED HEREUNDER, EVEN IF SELLER WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.

• IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, EXCEED THE FEES PAID BY BUYER TO SELLER UNDER THE AGREEMENT.

• THE LIMITATIONS DO NOT APPLY IF THE DAMAGE WAS CAUSED BY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF SELLER, WHICH LED TO BODILY HARM OR PERSONAL INJURY.

• THESE LIMITATIONS ON LIABILITY SHALL SURVIVE FAILURE OF ANY ESSENTIAL PURPOSE. CERTAIN JURISDICTIONS DO NOT PERMIT THE LIMITATION OF CERTAIN TYPES OF LIABILITY, SO THESE LIMITATIONS MAY NOT APPLY.

8. Limited Warranties & Disclaimer

• Seller makes the following express warranties: (1) Seller’s Product(s), as of the date of delivery to Buyer, are not adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act; and (2) Seller’s Product(s) shall conform to Seller’s respective specifications throughout the shelf life of the Product.

• No warranty is made with regard to conformance to Buyer’s specification(s) or Buyer’s finished goods or products. If the Products fail to comply with such warranty, Seller shall, at its option, replace the Products. The immediately preceding sentence sets forth Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive liability, for a breach of the above limited warranty. This warranty shall not apply to any Products that have been damaged or failed as a result of Buyer’s alteration, accident, misuse, abuse, use of the Product in a manner not in accordance with Seller’s specifications and/or Buyer’s combination of the Products with any products not provided by Buyer (“Excluded Claims”).

• EXCEPT AS EXPRESSLY STATED IN THIS SECTION 8, SELLER MAKES NO OTHER WARRANTIES REGARDING THE PRODUCTS OR SERVICES. SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER ARISING OUT OF COURSE OF DEALING OR IMPLIED UNDER LAW, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, TITLE AND NON-INFRINGEMENT OF THIRD-PARTY RIGHTS. SELLER DOES NOT WARRANT THE PRODUCTS WILL MEET BUYER’S REQUIREMENTS, NOR DOES IT GIVE ANY WARRANTY ABOUT THE RESULTS THAT MAY BE OBTAINED BY USING THE PRODUCTS. SELLER MAKES NO WARRANTIES REGARDING THE PRODUCTS IF BUYER COMBINES THE PRODUCTS WITH ANY MATERIALS OR OTHER PRODUCTS OR IF BUYER MODIFIES THE PRODUCTS.

9. Confidentiality

• Each Party shall, during the term of this Agreement and thereafter, keep secret and confidential all information disclosed to it pursuant to this Agreement by the other Party that it reasonably should know is of a confidential nature including the terms of this Agreement (and shall ensure that its affiliates, external advisors, agents and employees similarly protect such information), shall not disclose the same to any person save as expressly authorized in writing to be disclosed by the other Party, and shall not use the confidential information for any other purpose than what is stipulated in this Agreement.

• The obligation of confidentiality set forth in Section 9(a) above shall not apply or (as the case may be) shall cease to apply to information which: (i) at the time of its disclosure by the disclosing Party is already in the public domain or which subsequently enters the public domain otherwise than by breach of the terms of this Agreement by the receiving Party; (ii) is already known to the receiving Party (as evidenced by written records) at the time of its disclosure by the disclosing Party and was not otherwise acquired by the receiving Party from the disclosing Party under any obligations of confidence; or (iii) is at any time after the date of this Agreement acquired by the receiving Party from a third party having the right to disclose the same to the receiving Party without breach of obligation owed by that third party to the disclosing Party.  In the event a Party is required to be disclosed by applicable law or order of a court of competent jurisdiction or government department or agency, such required disclosure shall not be considered a breach of this Section 9; provided that, prior to such disclosure the receiving Party shall advise the disclosing Party of the proposed form of the disclosure (to the extent such disclosure is legally permitted).

10. Force Majeure

• Where any Party is unable, either wholly or in part, to carry out any obligation under the Agreement due to any event which that Party could not take reasonable measures to prevent (“Force Majeure Event”):
  
  i. as soon as practicable, that Party shall give the other Party notice of the occurrence of that Force Majeure Event; and use all reasonable endeavors to remedy the effect of that Force Majeure Event and to continue to perform its obligations under this Agreement.
  
  ii. that Party’s affected obligations under the Agreement are suspended for so long and to the extent that it is affected by the Force Majeure Event.
  
  iii. That Party is not liable for any failure or delay in the performance of any of its obligations under the Agreement to the extent that the failure or delay is attributable to Force Majeure Event, regardless of the length of time for which the Force Majeure Event continues.
  
  iv. Either Party may terminate the Agreement where a Force Majeure Event continues for at least one (1) month. Neither party is entitled to any costs or compensation where the Agreement is terminated in accordance with this clause.

11. Miscellaneous Provisions

• This Agreement is the entire agreement between Seller and Buyer with respect to the order to which it applies.

• If any provision set forth in the Agreement is or becomes wholly or partly ineffective or inoperable, the remaining provisions set forth in the Agreement will not be affected thereby. The ineffective or inoperable provision will be deemed to have been replaced by a provision approximating as closely as possible to the economic intention of the Parties. The same applies by analogy to missing provisions.

• The Agreement is deemed to have been entered into in the State of California, and its interpretation, construction, and the remedies for its enforcement or breach are to be applied pursuant to and in accordance with the laws of the State of California. The Parties agree that all actions or proceedings arising in connection with this Agreement shall be tried and litigated exclusively in the State or Federal Courts located in the State of California. The Parties’ consent to jurisdiction in the State Courts of San Francisco County of California. The Parties waive the right to contest exclusive venue by any motion to transfer, motion for forum non-conveniens or related motions.

• To the fullest extent not otherwise prohibited or required by law to be resolved in a different manner, by entering this Agreement, Buyer agrees that any controversy between Buyer and Seller involving the construction or application of any of the terms, covenants, or conditions of the Agreement shall be submitted to binding arbitration. The arbitration shall be conducted in San Francisco, California, and be in accordance with the then-current Commercial Arbitration Rules established by the American Arbitration Association, and include limited discovery to be in accordance with and governed by the provisions of the California Arbitration Act, Sections 1280 through 1294.2 of the California Code of Civil Procedure. The prevailing Party shall be entitled to recover its reasonable costs and expenses of arbitration, including reasonable attorneys’ fees. Nothing in this section or the Agreement shall limit or impair Seller from seeking and obtaining temporary and permanent injunctive relief to enforce the terms of the Agreement.

• Buyer shall defend, indemnify and hold harmless Seller and its directors, officers, employees, and agents from and against any and all liabilities, losses, damages, costs, and other expenses (including attorneys’ and expert witnesses’ costs and fees) arising from or relating to any Excluded Claims and/or Buyer’s breach of any term set forth in this Agreement and/or claims or actions brought by any third party against Buyer or Seller relating to this Agreement. Before bringing a claim for indemnification, Seller will notify Buyer of the indemnifiable proceeding, and deliver to Buyer all legal pleadings and other documents reasonably necessary for Buyer to indemnify and/or defend the indemnifiable proceeding.