Terms & Conditions

Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046

GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY Snomax LLC

These General Terms and Conditions of Sale and Delivery (herein, “Terms and Conditions”) are applicable to all customers (collectively, the “Customers” and each, individually, a “Customer”) of Snomax LLC, a Delaware limited liability company (the “Company”).

1. Terms and Conditions of Sale:
Company shall sell and deliver to Customer, and Customer shall purchase and accept from Company, the Snomax and Icemax water additive (the “Water Additive”) and the Snomax injection system (the “Injection System”) (the Water Additive together with the Injection System, collectively the “Products”) and services (collectively, the “Services”) described on or in any email or telephone order, agreement or quotation, or any combination thereof (the “Order”), pursuant to the terms and conditions of the Order and those specified below, which taken together shall constitute the entire agreement between Company and Customer regarding the Products and the Services (this “Agreement”). The Products will be delivered from any one of the three following Snomax facilities: 8465 Concord Center Drive, Englewood, Colorado 80112 or 2 Rockwood Street, Suite 300, Rochester, NY 14610 or 21 Albert Street (PO Box 100), Trenton, ON K8V 5R1, CA (the “Shipping point”). The Shipping will be selected at Snomax’s sole discretion, without requirement of notification to Customer.
1.1. No other terms or conditions shall be of any effect unless otherwise specifically agreed to by Company in a separate written agreement duly signed by an officer or an authorized person of Company. In the event of any discrepancy or contradiction between these Terms and Conditions and the individually negotiated agreement between Company and Customer, the terms and conditions of the individually negotiated agreement shall prevail. Customer will be deemed to have assented to these Terms and Conditions if any part of the Products or any Services rendered are accepted by Customer. If Customer finds any part of these Terms and Conditions not acceptable, Customer must so notify Company at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Customer’s Order or in any other form issued by Customer shall be deemed objected to by Company and shall be of no
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
effect. No general terms and conditions of a Customer shall at any time form a part of the content of any contract or agreement between Customer and Company, even if they are not further expressly rejected by Company.
1.2. Unless otherwise agreed in writing or otherwise stated on the quotations, all quotations for Products and Services are valid for a period of thirty (30) business days from the date of issue. Subsequent modifications in quantity or quality, if such are requested by Customer, generally will cause a modification of the quoted price. Drawings and samples enclosed with any quotation remain the property of Company. All drawings and samples shall be treated confidentially by Customer. Company reserves the right to request drawings, samples and other documents to be returned to Company after usage.
1.3. No Order is binding upon Company until the acceptance of the Order via the delivery of the Products to Customer or the rendering of Services. Notwithstanding any prior acceptance of an Order by Company in writing, Company shall have no obligation to deliver any Products or render any Services if Customer is in breach of any of its obligations under this Agreement or any other agreement between Customer and Company at the time Company’s performance was due.
1.4. Customer shall bear all costs associated with the cancellation or modification of an Order.
1.5. Orders placed with Company may not be canceled except upon Company’s written consent prior to shipment and Customer’s acceptance of Company’s cancellation charges which shall protect Company against all costs and losses. Company reserves the right to cancel any Order hereunder in Company’s sole discretion without liability to Company (except for refund of monies already paid).
1.6. With respect to the Services, Customer shall (i) cooperate with Company in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by Company, for the purposes of performing the Services; (ii) respond promptly to any Company request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Company to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Company may request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.

2. Prices:
2.1. Unless otherwise stated by Company in writing, all price quotations, are EXW (per Incoterms 2010) from a Shipping Point, and do not include costs for shipping, packaging, postage or other freight charges, customs duties, insurance or taxes, if any.
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
2.2. The price of the Products and Services shall be Company’s current prices in effect from time to time or by special price quotes made to Customer in writing.
2.3. Prices in catalogues and brochures are not binding unless confirmed in writing by the Company.
2.4. Company may, without notice to Customer, increase the purchase price of the Products by the amount of any new or increased tax or duty (excluding franchise, net income and excess profits taxes) which Company may be required to pay on the manufacture, sale, transportation, delivery, export, import or use of the Products or the materials required for their manufacture or which affects the costs of such materials.
2.5. Customer agrees to reimburse Company for all reasonable travel and out-of-pocket expenses incurred by Company in connection with the performance of the Services.

3. Terms of Payment:
3.1. Unless otherwise agreed to in writing by Company, invoices issued by Company are due and payable by Customer within thirty (30) business days from the invoice date. Customer shall make payments by cheque or wire transfer to the account indicated on the invoice without a cash discount or offset, and Company shall not be required to incur any expense to receive timely payment in full as required by this Agreement. Payments by cheque shall be subject to collection and shall be received by Company within said thirty (30) business day period. Any objection to an invoice should be communicated by Customer via registered mail within seven (7) business days following receipt of the invoice. Upon expiration of this period, the relevant invoice shall be considered accepted by Customer and no further complaints shall be accepted by Company. In the event of returned checks, the Company shall be entitled to charge a $25 processing fee.
3.2. Company may, without notice, change or withdraw extensions of credit at any time. If Company ceases to extend credit terms before shipment, Customer's sole remedy shall be cancellation of its Order. If Customer does not receive notice before shipment, its sole remedy shall be rejection of the Products immediately upon delivery.
3.3. If Customer fails to make payment on or before the date required, Customer shall be liable to pay, without further notice, interest on the amount outstanding with effect from the date on which the payment was due, at the rate of one-point five percent (1.5%) per month or such lesser amount permitted by law. The specification or charging of interest shall not be deemed an agreement to extend credit.
3.4. Payment of interest shall be without prejudice to Company’s right to claim a higher compensation in case the incurred damages exceed the interest amount. All extrajudicial and legal costs incurred by Company in the process of compelling the Customer to fulfil its obligations are payable by Customer.
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
3.5. If Customer fails to observe these Terms and Conditions or the terms of any other agreements between Company and Customer, or if Customer becomes insolvent, all balances then due and owing to Company shall become due immediately, notwithstanding any agreed upon payment periods. Any Orders that have not yet been delivered to Customer, shall in such cases become cancelable at the sole discretion of Company, without further notice or payment of compensation to Customer.
3.6. Customer does not enjoy a right of set-off under any circumstances.

4. Transfer of Title and Risk and Delivery Terms:
4.1. Unless otherwise provided on the face hereof, all Products furnished hereunder will be shipped [EXW] (per Incoterms 2010) and title in, risk of loss, and the right of possession to such Products shall pass to the Customer at a Shipping point and Company is not responsible for damage or loss in transit, regardless of whether or not Customer may have the right to reject or revoke acceptance of said Products. Company can arrange for in-transit insurance at Customer’s expense, but will not do so without Customer’s written instructions. Unless otherwise stated in the Agreement documents, all Products will be shipped freight prepaid and billed. Charges for shipping may not reflect net transportation cost paid by Company. Company shall be responsible for all import requirements of any country into which it seeks to import the Products. Company shall be entitled to make partial deliveries or deliveries prior to the agreed-upon delivery date, provided that Company notifies Customer of the same.
4.2. Notwithstanding Section 4.1, regarding Products that need to be installed by Company, title shall pass to Buyer upon installation of the Products.
4.3. Customer shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable GST, HST, VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of Customer or Company, but excluding any taxes payable by Company with respect to its net income.
4.4. The Products shall be packaged as agreed upon the parties in Company’s Order. Customer shall be exclusively responsible for, and shall provide Company with, any information necessary to comply with special labeling requirements applicable at Customer’s place of business. Customer shall be responsible to ensure that the Products comply with all applicable laws in Customer’s jurisdiction. Company is not bound to organize export clearance.
4.5. Customer, shall, subject to Company’s available facilities at the shipping point, determine the type of transportation and shall notify Company thereof at the time Customer places each Order. If Customer shall fail to so notify Company, Company or its agent may select, at Customer’s expense, any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products. Company will make deliveries of the Products in the quantities ordered as near as reasonably possible to the Customer’s requested delivery dates.
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
4.6. Company shall use its commercially reasonable efforts to deliver the Products to Customer by the agreed upon date, subject to Section 4.1., and Company shall use its commercially reasonable efforts to meet any performance dates to render the Services specified in the Order, and any such dates shall be estimates only. However, time shall not be of the essence. In the event of a threatened delay in delivery, Company shall in any event inform Customer thereof and Company and Customer shall consult on the most practical manner to remedy any adverse consequences of such delay. Except in cases of Company's willful misconduct or gross negligence, Company shall not be liable to Customer for delays in delivery or damage to the Products while in transit, irrespective of whether Company or Customer determined the mode of transportation.
4.7. In cases of deliveries of Products manufactured to Customer’s specification (“Special Orders”) and unless otherwise agreed to in writing, all tools, drawings, samples, models, plans, blueprints or other devices and/or documents used and/or developed by Company (the “Tools”) in order to fulfill any Order or Special Order are the property of Company, even if the cost of development and/or manufacturing of such tools, models, plans, blueprints or other devices and/or documents was wholly or partially borne by Customer.
4.8. Customer is obliged to take possession of the ordered Products on the confirmed delivery dates. Should Customer for any reason, except for delivery of defective Products, not take possession of the Products at the time of delivery: (i) the Products shall be deemed to have been delivered and (ii) Company is entitled to store the Products at the sole expense and risk of Customer. Such protective measure does not suspend Customer’s payment obligation.

5. Security Interest: Applicable to Customers located in Canada only
5.1. If the sale of Products are made on credit to a Customer in a province other than Quebec, to secure the full payment and performance by Customer of its liabilities and obligations to Company, Company reserves and Customer hereby grants to Company a purchase money security interest in (i) all Products sold to Customer, (ii) all new goods manufactured by Customer into which the Products are integrated, and (iii) any and all proceeds, debts, accounts, receivables, and claims from the resale of the Products which may be received by or due or owing to Customer from any third party. If the sale of Products is made to a Customer in Quebec, Customer hereby hypothecates in Company’s favour, the Products described in the Agreement (“Hypothecated Property”), for an amount equal to the purchase price of the Hypothecated Property, plus an additional sum equal to twenty (20%) percent of the amount of the hypothec for purposes of guaranteeing the payment of interest and incidental charges that are not already guaranteed by the amount of the hypothec. The hypothec is granted to secure payment of the balance of the purchase price of the Hypothecated Property and all other obligations of Customer to Company hereunder and pursuant to the Agreement. The security interest or hypothec hereby granted shall remain in force until payment in full of the entire purchase price for the Products has been received by Company.
5.2 Customer shall be in default under the Agreement, and the security interest or hypothec created hereunder shall become enforceable if: (a) Customer fails to pay the balance of the invoice value when due; (b) Customer is in default of any other obligation arising from this Agreement
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
and fails to remedy such default within seven (7) business days following a written notice by Company; (c) Customer enters into any composition or similar general arrangement (formal or informal) with its creditors or is unable to pay its debts, is subject to a procedure of judicial reorganisation or bankruptcy, has a receiver or administrator appointed in respect of its undertaking, assets or income or any part thereof, has passed a resolution for its liquidation, or a request is filed or an order is made by any court for its liquidation or for its administration; (d) Customer threatens, appears to or ceases to carry on its business or substantially changes the nature of its business, all as determined by Company in its sole discretion; (e) a prior notice is given by a creditor purporting to hold or holding a prior interest or by a hypothecary creditor of its intention to exercise its purported or prior interest or hypothecary rights or any other security interest, or if such right or security interest is exercised or if a secured creditor takes possession or appoints a receiver with respect to any part of the Products (or Hypothecated Property) sold; or (f) an execution is filed against Customer or a seizure is brought against the Products (or Hypothecated Property) sold and should it not be quashed within ten (10) business days thereafter. Customer acknowledges that this document may be filed with the appropriate authorities as a financing statement and/or hypothec and agrees to execute and deliver such documents as Company may request in order to perfect its security interest or hypothec.

6. Security Interest: Applicable to Customers located in United States only
6.1. As security for the timely payment and performance of all Customer’s indebtedness to Company, Customer hereby grants to the Company a first priority security interest in the Products following delivery thereof to Customer (“Security Interest”). Such Security Interest shall remain in force until payment in full of the entire purchase price for the Products and any other amounts due to Company have been received by Company.
6.2. Customer hereby expressly authorizes Company to file a UCC Financing Statement to reflect Company’s security interest in the Products. Customer shall cooperate in the respective filings and registrations which are required according to applicable local laws for an effective protection of Company’s claim for payment of the Products, including, without limitation, any required documentation duly filed under the UCC in all jurisdictions as may be necessary to perfect Company’s security interest and lien in the Products.

7. Warranty and Disclaimers for Products:
7.1. Customer accepts the Water Additive upon delivery and after the inspection period pursuant to Section 7.4 “as is” and “with all faults.” Company does not give any warranty regarding the Water Additive.
7.2. Subject to the limitations contained in Section 9, Company warrants solely to the Customer of the Injection System that for the Warranty Period (as defined below), the Injection System will be free from defects in materials and workmanship under normal use, and will conform to
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
Company’s published specifications of the Injection System and the Injection System’s operating manual, if applicable. Notwithstanding the foregoing, Company retains its right to deviate from its published specifications due to the latest innovations and improvements in function and design of the Injection System. The warranties set forth herein shall not apply in the event of any modifications, installations or other technical alternations on the Injection System performed by or on behalf of Customer.
7.3. The foregoing warranty is subject to the proper storage, transportation, and proper use of the Injection System by a properly trained person, as defined in the Injection System’s operating manual, and does not include defects due to normal wear and tear or deterioration. Company further does not warrant: (a) damage caused by use of the Injection System for purposes other than those for the use it was purchased for or any other abuse or misuse by Customer, as defined in the Injection System’s operating manual, (b) damage caused by disasters such as fire, flood, wind, and lightning, (c) damage caused by unauthorized alterations of the Injection System or modifications to the Injection System without the prior written consent of Company, or (d) the Injection System which has been damaged by Customer or its customers.
7.4. Customer shall immediately, but in any event no later than seven (7) business days following delivery or installation of the Product, inspect the Products for conformity and visible defects. Customer shall give Company immediate written notice of any non-conformities or visible defects regarding the Products. In the event that Customer fails to provide the Company within seven (7) business days following delivery or installation of the Products with notice of any non-conformities or visible defects, any warranty claims in regard to the Injection System shall be deemed waived.
7.5. Customer shall immediately notify Company in writing of any other defects of the Injection System and return such defective Injection System. Company’s sole obligation under the foregoing warranty is, at Company’s option, to replace or exchange the defective Injection System or issue a merchandise credit for the defective Injection System. Any replaced or exchanged Injection System shall be subject to the warranty set forth in 7.2., following its replacement or exchange. If Company has received notification from Customer, and no defects of the Injection System could be discovered, Customer shall bear the costs that Company incurred as a result of the notice. It shall be in Company’s sole discretion to determine if the Injection System has a defect.
7.6. With respect to orders made to custom, any defects of the Injection System caused by Customer’s specifications are excluded from the warranty set forth in 7.2.
7.7. Company also makes no warranty that the Injection System manufactured under an order made to custom do not infringe the intellectual property or other proprietary rights of any third party and Customer is solely responsible for assuring that such Injection System does not so infringe.
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
7.8. With respect to Special Orders, Company makes no warranty that the Injection System manufactured under a Special Order will be free from material defects in materials and workmanship under normal use, as defined the Injection System’s operating manual, and makes no warranty that such Special Order does not infringe the intellectual property or other proprietary rights of any third party. Customer is solely responsible for assuring that the Special Order does not so infringe.
7.9. The “Warranty Period” begins on the date of delivery of the Injection System to Customer, and continues to be in effect for twelve (12) months. In the event of any newly installed parts during repair due to warranty claims, the Warranty Period on such parts commences on the date of installation.
7.10. Company does not authorize any person or party to assume or create for it any other obligation or liability in connection with the Products except as set forth herein.
7.11. All requests and notices shall be directed to: info@snomax.com

8. Warranty and Disclaimers for Services:
8.1. Company represents and warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
8.2. Company shall not be liable for a breach of the warranty set forth in Section 8.1 unless Customer gives written notice of the defective Services, reasonably described, to Company within seven (7) business days of the time when Customer discovers or ought to have discovered that the Services were defective.
8.3. Subject to Section 8.2, Company shall, in its sole discretion, either:
repair or re-perform such Services (or the defective part); or
credit or refund the price of such Services at the pro rata contract rate.
8.4. EXCEPT FOR THE SERVICE WARRANTY SET FORTH IN SECTION 8.3 ABOVE, COMPANY MAKES NO WARRANTY WITH RESPECT TO THE SERVICES AND ALL PRODUCTS OFFERED ARE PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, FOR SERVICES AND PRODUCTS ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY;
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
8.5. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY.
8.6. CUSTOMER AFFIRMS THAT COMPANY SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS.

9. Limitation of Liability:
9.1. IN NO EVENT SHALL COMPANY IN REGARD TO PRODUCTS OR SERVICES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, SAVINGS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2. NOTWITHSTANDING THE TERMS AND CONDITIONS SET FORTH IN SECTIONS 7.1., 7.2. AND 8.1., COMPANY'S LIABILITY- WHETHER BASED UPON CONTRACT, TORT, EQUITY, NEGLIGENCE OR ANY OTHER LEGAL CONCEPT- SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF CUSTOMER'S ORDER, AS DESCRIBED ON THE ORDER FORM. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN COMPANY AND CUSTOMER, THAT COMPANY’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION AND LIMITATION OF LIABILITY, COMPANY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT.
9.3. IN JURISDICTIONS THAT LIMIT THE SCOPE OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR THAT DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY BY STATE, PROVINCE, COUNTRY OR OTHER JURISDICTION.

10. Indemnity:
10.1. Customer agrees to defend, indemnify and hold Company (and its agents, representatives, employees, officers, related companies, successors and assigns, and customers) harmless from all claims, demands, actions, damages, and liabilities (including attorney’s fees and consequential and incidental damages) arising out of any injury (including death) to any person or damage to any
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
property in any way connected with any act or omission of Customer, its agents, employees, or subcontractors.

11. Confidentiality:
Customer shall not use or communicate to third parties any trade secrets or know-how or any proprietary information relating in any way to the internal affairs of Company, in particular, confidential matters of which it becomes aware or receives access to as a result of placing its order with Company. Notwithstanding the foregoing, excluded from the above restrictions is any disclosure of confidential matters (i) that can be demonstrated to have been in the public domain prior to any disclosure of such information by the disclosing party, whether directly or indirectly; (ii) that becomes part of the public domain by publication or otherwise through no fault or negligence on the part of the disclosing party; or (iii) that is disclosed pursuant to a requirement of a governmental agency or as is required by operation of law. The terms “trade secrets”, “know-how” or “proprietary information”, as used in this section, shall include, but not be limited to, designs and plans regarding product development, materials, components, production plans, computer programs, data bases, technical data, documentation, as well as other information relating to the Products (collectively, the “Confidential Information”). Customer shall not copy such Confidential Information, unless approved in writing by Company. Customer shall instruct its employees and its independent subcontractors to adhere to the terms and conditions of this provision. The obligations under this provision shall survive the termination of the Agreement and/or the delivery of Products for an indefinite period of time.

12. Intellectual Property:
12.1. Customer acknowledges Company and its affiliates are the owners of the brands, trademarks, designs, patents, copyrights and other intellectual property relating to Company’s Products, and that no right or license is conveyed by Company to Customer to manufacture, have manufactured, modify, import or copy such products. Customer agrees that it will reference brands of Company or its affiliates only in connection with the use or sale of Products delivered to Customer hereunder, and not in connection with the sale of any other product, except as separately authorized by Company in writing.

13. Patent Indemnity:
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
13.1. If a Product delivered by Company to Customer becomes or, in Company’s opinion, may become the subject of any claim, suit or proceeding for infringement of any patent, the Company and its affiliates may at its option and expense (i) obtain for Customer the right to use, lease or sell the Product, (ii) replace the Product, (iii) modify the Product, or (iv) remove the Product and refund the purchase price paid by Customer less a reasonable amount for use, damage or obsolescence. Company and its affiliates will not be liable for any infringement arising from any modification of a Product, from any combination of a Product with any other product(s), or from the use of a Product in practicing a process or unintended applications. Company’s and its affiliates total liability to Customer will not, under any circumstances exceed the purchase price paid for the allegedly infringing Product. Customer agrees, at its expense, to protect and defend Company and its affiliates against any claim of patent infringement arising from compliance with Customer’s designs, specifications or instructions and to hold Company and its affiliates harmless from damages, costs and expenses attributable to any such claim.

14. Force Majeure:
14.1. Company shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond its reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.

15. Export Control:
15.1. This Agreement is made subject to any restrictions concerning the export of products or technical information from the United States or other countries that may be imposed on the parties from time to time. Each party agrees that it will not export, directly or indirectly, any technical information acquired from the other party under this Agreement or any products using such technical information to a location or in a manner that at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from the appropriate agency or other governmental entity in accordance with applicable law.

16. Miscellaneous Terms:
16.1. This Agreement and all claims arising out of or related to this Agreement, including tort claims, shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than New York. The application of the Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
16.2. Except where prohibited by law, any controversy or claim arising out of or relating to this Agreement, or the negotiation or breach thereof, shall be exclusively settled by arbitration in accordance with the International Arbitration Rules of the American Arbitration Association (“AAA”). The arbitration shall be held in New York, New York, shall be conducted in the English
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
language, and shall be conducted (i) if the amount in dispute is less than two hundred fifty thousand dollars ($250,000), before a single arbitrator mutually agreeable to Company and Customer, or if no agreement can be reached, then selected by the AAA, or (ii) if the amount in dispute is two hundred fifty thousand dollars ($250,000) or more, before three (3) arbitrators. The arbitrator(s) shall make detailed findings of fact and law in writing in support of his, her or their decision, and shall award reimbursement of attorney’s fees and other costs of arbitration to the prevailing party, in such manner as the arbitrator shall deem appropriate. Either party may initiate arbitration by notifying the other in writing. The ruling and award from such arbitration shall be final and binding. The parties consent to judgment on the award and the judgment and award may be entered in any court of competent jurisdiction.
16.3. If arbitration pursuant to section 16.2 is prohibited by law, then any dispute or claim arising out of or relating to this Agreement or the negotiation or breach thereof may be brought before the State or federal courts located in the State of New York. Customer, acting for itself and its successors and assigns, hereby waives all rights to trial by jury in any litigation arising from or related to this Agreement. Subject to section 16.2, Customer expressly and irrevocably consents to the jurisdiction of the state and federal courts located in the State of New York, and waives the right to assert that any action in any such court is in the improper venue or should be transferred to a more convenient forum.
16.4. If any provision contained in this Agreement is held to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
16.5. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
16.6. Notwithstanding section 16.2, in the event of a violation or threatened violation of Company’s proprietary rights, Company shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Agreement, to seek temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Company would suffer irreparable harm.
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
16.7. The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties. Customer shall not be entitled to assign the rights and delegate the obligations of Customer set forth in this Agreement without the prior written consent of Company. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
16.8. The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.
16.9. This Agreement, including any Order and Schedules attached hereto, contains the entire agreement of the parties with respect to the subject matter of this Agreement, and supersedes all prior agreements between them, whether oral or written, of any nature whatsoever with respect to the subject matter hereof. This Agreement is binding upon the parties hereto, their successors and permitted assigns. It can only be amended in writing which (i) specifically refers to the provision of this Agreement to be amended and (ii) is signed by both parties.
16.10. Each party will comply with all applicable laws, regulations, and ordinances, and Customer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by the Agreement.
16.11. Company has the right to terminate the Agreement with Customer at any time, with immediate effect, without prior notice and without compensation (i) in case the Products are seized by a third party; (ii) in case of breach by Customer of one or more of the obligations arising from this Agreement where the breach has not been remedied within seven (7) business days following a written notice by Company; (iii) if Customer becomes insolvent or enters into any composition or similar general arrangement (formal or informal) with its creditors or is or threatens to be unable to pay its debts, is subject to a procedure of judicial reorganisation or bankruptcy, has a receiver or administrator appointed in respect of its undertaking, assets or income or any part thereof, has passed a resolution for its liquidation, or a request is filed or an order is made by any court for its liquidation or for its administration; or (iv) if the Customer ceases to trade. In case of termination, Company reserves the right to claim compensation for all costs, interests and damages incurred by Company.
16.12. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Snomax LLC – 8465 Concord Center Drive - Englewood, CO 80112 - USA – (800) 724-0046
16.13. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: 7, 8, 9, 10, 11, 12, 13, 14, 15, 16.1, 16.2, 16.6, 16.8, 16.10.
16.14. The parties hereto have expressly requested that these general terms and conditions of sale and all related documents be drafted in English. Les parties aux présentes ont expressément requis que les présentes modalités et conditions générales de vente ainsi que tous les documents qui s'y rattachent soient rédigés en anglais.