STANDARD TERMS AND CONDITIONS OF SALE

1. Exclusive Terms and Conditions. Together with any other terms the parties agree to in writing, these Terms and Conditions of Sale form the exclusive terms (“Agreement”) whereby Buyer agrees to purchase, and Seller agrees to sell Goods and provide advice, instruction and other services in connection with the sale of those Goods (“Services”). Notwithstanding any provisions communicated in any way by Buyer to Seller prior to this Agreement including any terms contained in any request for quote by Buyer, Buyer agrees that this Agreement will control the relationship by accepting Goods and Services from Seller, even if Buyer sends to Seller other terms and conditions to which Seller may not respond. This Agreement may only be revised by Change Orders approved in writing by both parties.

2. Buyer Obligations. Seller will not control the actual operation of either Buyer’s systems or Goods at the site, and unless otherwise specifically agreed in writing, installation of Goods shall be the responsibility of Buyer. Goods and Services provided hereunder are based upon the information Buyer makes available to Seller, and Seller reserves the right to utilize the most compact and feasible design compatible with sound engineering practices, and to make changes in details of design, construction and arrangement of Goods unless precluded by limitations (including, but not limited to actual space and feedwater/substance quality specifications) specified by Buyer in writing at the time an order is placed. If no such limitations are specified, Seller shall not be held responsible for incompatibility of the Goods and Services due to changes in feedwater/substance quality specifications or site conditions nor for incompatibility with actual space or design limitations, which were not initially disclosed by Buyer and become apparent at a later date. For Services to be accurate and Goods to work as intended, Buyer must fulfill the following obligations (“Obligations”): (a) provide Seller complete and accurate information and data relevant to the scope of work to be provided, such as information related to Buyer’s site conditions, systems, related equipment and processes, feedwater or other substances to be treated or measured with the Goods, including any hidden, unapparent, or changing conditions that may affect the effectiveness of the Goods; (b) operate all related systems and the Goods within the agreed to control parameters or, if none, within industry customary operating conditions; (c) maintain all related systems and Goods in good operating condition and repair; and (d) maintain and handle Goods in a proper and safe manner. If Buyer’s fails to fulfill the foregoing Obligations, Seller shall be relieved of any obligations with respect to warranties or any other commitments made to Buyer in writing, and Seller shall have no liability for any loss, damage or injury, which Buyer may sustain or for which Buyer may be liable.

In case of rental equipment, Buyer will return the equipment at the end of the rental period in good condition with no excessive wear and use. The Buyer is responsible for all charges incurred by Seller to service, repair or replace equipment for any excess wear and use. Excess wear and use includes among other things: i) physical damage; ii) broken or missing parts or accessories; iii) missing manuals and software; iv) if the equipment is materially unsatisfactory for any other reason.

3. Payment and Prices. Unless otherwise specified in writing, payment is due net thirty (30) days from the date of Seller’s invoice. Seller will invoice upon the Goods being ready to ship, regardless of whether Buyer has arranged for pickup or shipment. If Seller shall have any doubt at any time as to Buyer's ability to pay, Seller may decline to make deliveries except on receipt of satisfactory security. Seller may require a Letter of Credit or other payment guarantee, in which case the stated amount of the guarantee will be adjusted by Buyer in the event of any currency-based adjustment to prices or payment amounts per the formula in Section 6.1, and Buyer shall deliver the adjusted guarantee within five (5) days of request by Seller [For multi-year agreements, pricing stated shall remain firm for 12 months, after which Seller shall be entitled to adjust pricing upward on an annual basis according to the designated formula used by Seller in Buyer’s country and which shall be notified to Buyer.]

Unless otherwise specified, all prices are EXW Loading Truck at Seller’s facility according to INCOTERMS 2000. Buyer agrees to reimburse Seller for collection costs, including 2% interest per month, should Buyer fail to timely pay. Buyer shall have no rights to any setoffs of any nature relating to any payments due under the Agreement.

Unless otherwise specified, all Services will be invoiced on a weekly basis and Rentals will be invoiced twice a month.

4. Bonds & Taxes. The prices quoted herein do not include bonds or taxes. Buyer shall be directly responsible, and reimburse Seller, for the gross amount of any present or future bond, sales, use, excise, value-added, or other similar tax applicable to the price, sale or delivery of any products or services furnished hereunder. Buyer shall furnish Seller with evidence of tax exemption acceptable to taxing authorities if applicable.

5. Payment for Excessive Usage; Lost and Damaged Goods. If payment for Goods is based on some factor other than the actual amount of Goods delivered (e.g., payment is for a fixed amount, or based on usage or  production), then Buyer agrees to pay for all Goods (a) consumed as a result of Buyer’s failure to comply with Obligations as set forth in Section 2; or (b) lost or damaged after delivery to Buyer. Buyer shall provide Seller all information necessary to calculate amounts due and enable Seller to audit those records.

6. Return of unwanted items. Buyer may not return any “Custom” Goods. If Buyer wants to return “non-custom” Good, Buyer must return Good in original condition to Seller within 30 days of receipt of Good. Seller will impose a 20% restocking fee for all returned Goods.

7. Deliveries. Unless stated otherwise in the Proposal, Seller shall deliver all products to Buyer EXW (Incoterms 2000) Loading Truck at Seller’s facility, and title and risk of loss will transfer upon delivery in accordance with Incoterms 2000. The time and place for delivery of the products to Buyer shall be fixed upon:

(a) acceptance of the Agreement by Buyer and Seller including Seller’s acceptance of the delivery schedule for the products, or,

(b) where specified in the Agreement, upon receipt of Buyers Notification to Proceed with fabrication of the products that satisfies Seller’s requirements for meeting the agreed delivery schedule.

Seller’s sole liability for any delay in delivery of the products shall be as set out in the Agreement. The place of delivery specified therein shall be firm and fixed, provided that Buyer may notify Seller no later than 45 days prior to the scheduled shipment date of the products of an alternate point of delivery. Provided the parties agree a Variation to take into account any additional cost [or delay] incurred by Seller in implementing this change, the alternate place of delivery shall become the agreed place of delivery for all purposes under this Agreement.

8. Storage. If order is to be picked-up at H2O facility by Buyer, then Buyer agrees to storage fee of 2% per month of order value if order is not picked-up within 5 days of “Ship-by” date noted on the order.

9. Consigned Goods. Buyer shall bear all risk of loss and damage to all consigned Goods in Buyer’s possession or control, notwithstanding Buyer’s exercise of reasonable care. Seller shall have the right to enter Buyer’s premises at all reasonable times to inspect such Goods and related records. Upon request, Buyer agrees to return such Goods to Seller pursuant to Seller’s shipping instructions.

10. Limited Warranties. Refer to  ”Standard Limited Warranty” document. H2O Standard Limited Warranty.pdf

11. Use of Equipment, Tanks, and Containers. Tanks and SBC’s owned by Seller shall be used only for the storage of Goods approved by Seller and, at Seller’s request, shall be returned to Seller within thirty (30) days.

12. Compliance with Laws; Permits. Buyer is responsible for compliance with all laws and regulations applicable to the storage, use, handling, installation, maintenance, removal, registration and labeling of all Goods from and after Buyer’s receipt of the Goods, as well as for the proper management and disposal of all wastes and residues (including containers) resulting from Buyer’s use of the Goods. Buyer agrees to ensure that all Goods and Services provided to Buyer for export are exported only in compliance with applicable export control laws and regulations. Permits and licenses of a permanent nature, or which are required to operate apparatus or equipment or to use the Goods, shall be procured by Buyer at Buyer’s sole expense.

13. Installation. For equipment purchase if applicable, installation costs of the equipment and materials supplied shall be the responsibility of the Buyer, unless otherwise provided within the Seller’s proposal. Otherwise, unless stipulated in the Seller’s proposal, Buyer agrees to pay for start-up technical assistance and operator instruction, at the Seller's prevailing rate per day. Buyer also agrees to pay reasonable expenses for transportation room and board for Seller's personnel.

On time completion of startup and commissioning services will require satisfactory installation of all equipment by Buyer. In order to prevent delays and cost overages, Seller will provide an Installation Checklist as part of a full Commissioning Plan to ensure all tasks are identified and scheduled. Seller’s Field Service personnel will be deployed to site for startup and commissioning services only after Installation Checklist is completed by Buyer or Buyer’s Installation Contractor, signed by Buyer, and submitted to Seller. In the event that any installation task identified as being complete on the Installation Checklist is found to be incomplete upon arrival at site, Seller will be entitled to back charge Buyer for delays associated with any and all incomplete tasks, billed at Seller’s Field Service Labor Rates.

Standard terms of sale include one set of operating instructions. If additional sets are required, they are available at an additional charge. Upon receipt of request for additional sets, a price quotation will be forwarded.

14. Differing Site Conditions And Hazardous Materials. In the event that Seller encounters any Hazardous Materials (shall mean toxic substances, hazardous substances, pollutants, contaminants, regulated wastes, or hazardous wastes as such terms may be defined or classified in any law, statue, directive, ordinance or regulations promulgated by any applicable governmental entity) at the Buyer’s site, other than Hazardous Materials introduced by Seller or that are otherwise the express responsibility of Seller under this Agreement, Buyer shall immediately take whatever precautions are required to legally eliminate such hazardous conditions so that the Seller’s work under this Agreement may safely proceed

15. Emergencies. In the event an emergency condition should occur where the protection of either the plant equipment, employees at site, or the surrounding community are threatened, Seller may procure the required and necessary equipment, personnel, or subcontract support. Seller must provide immediate notice to Buyer regarding the emergency and then provide a report after reviewing the events and itemizing all expenditures. Buyer will reimburse Seller for all emergency related expenses.

If the safety of Seller’s personnel is threatened or likely to be threatened by circumstances outside the reasonable control of Seller, including but not limited to war, armed conflict, civil unrest, riots, terrorism, kidnapping, presence of or exposure to hazardous materials, unsafe working conditions, or by the threat of such circumstances or a lack of adequate protections against such circumstances, Seller shall be entitled to take all necessary steps to ensure the security and safety of its personnel including the evacuation of personnel until such circumstances no longer apply.

16. Excusable Delay/Non-Performance. Seller shall not be liable nor in breach or default of its obligations under this Agreement to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond the reasonable control of Seller, including, but not limited to: acts of God, fire, terrorism, war (declared or undeclared) epidemics, material shortages, insurrection, act (or omissions) of Buyer or Buyer’s suppliers or agents, any act (or omission) by any governmental authority, strikes, labor disputes, transportation shortages, or vendor non-performance. Furthermore, in addition to its other rights, if Buyer fails to fulfill any of the payment conditions in this Agreement, Seller may suspend performance and/or delivery and/or thereafter require full or partial payment in advance. The delivery or performance date shall be extended for a period equal to the time lost by reason of delay or non-performance, plus such additional time as may be necessary to overcome the effect of the delay or non-performance. If Seller is delayed by any acts (or omissions) of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, or if the Seller suspends performance and/or delivery in accordance with this clause, Seller shall be entitled to an equitable price and performance adjustment as applicable.

17. Confidentiality and Intellectual Property. Both parties agree to keep confidential the other party’s proprietary non-public information, if any, which may be acquired in connection with this Agreement. Buyer will not, without Seller’s advance written consent, subject Goods to testing, analysis, or any type of reverse engineering. Seller retains all intellectual property rights including copyright which it has in all drawings and data or other deliverables supplied or developed under this Agreement, subject to Buyer’s right to use such drawings and data for its own use without additional cost. Buyer acknowledges that Seller is in the business of selling the Goods subject to this Agreement and agrees that it will not file patent applications on the Goods, or processes and methods of using the Goods, without Sellers express written permission. Buyer further agrees that in any event any such patents will not be asserted against Seller or its other Buyers based upon purchase and use of such Goods. Buyer shall be fully liable for any infringement of patent rights of third parties arising out of the products supplied hereunder where the construction, and other characteristics of such products including modification of the Goods and Services, is prescribed to the Seller, or completed independently, by the Buyer or agent(s). Buyer shall fully defend and indemnify the Seller in case of such claim(s). Any software Seller owns and provides pursuant to this Agreement shall remain Seller’s property. Seller provides to Buyer a limited, non-exclusive and terminable license to such software for the term of this Agreement. Buyer agrees not to copy, sub-license, translate, transfer, reverse engineer, or decode the software. Unless otherwise expressly agreed by Seller, this license shall terminate and the software shall be returned to Seller upon termination of this Agreement, or the material breach of the terms in this section.

18. Limitation on Liability. To the extent permitted by law, the total liability of the Seller for all claims arising out of or relating to the performance or breach of this Agreement or use of any Goods or Services shall not exceed the annual contract value of this Agreement. Seller shall not be liable for any advice, instruction, assistance or any services that are not required under this Agreement or for which Seller does not charge Buyer. In no event will either party be liable to the other for lost profits or revenues, cost of capital or replacement or increased operating costs, lost or decreased production, claims of Buyer’s Buyers for such damages or any similar or comparable damages, or for any incidental, special, consequential or indirect damages of any type or kind, irrespective of whether arising from actual or alleged breach of warranty, indemnification, product liability or strict liability, or any other legal theory. If Buyer is supplying Seller’s Goods or Services to a third party, Buyer shall require the third party to agree to be bound by this clause. If Buyer does not obtain this agreement for Seller’s benefit for any reason, Buyer shall indemnify and hold Seller harmless from all liability arising out of claims made by the third party in excess of the limitations and exclusion of this clause.

19. Conflicts; Survival, Assignment. If there is any conflict between this Agreement and any written proposal or quotation provided by Seller, then the terms and conditions set forth in the proposal or quotation shall prevail. If any term or condition of this Agreement or any accompanying terms and conditions are held invalid or illegal, then such terms and conditions shall be reformed to be made legal or valid, or deleted, but the remaining terms and conditions shall remain in full force and effect, and the Agreement shall be interpreted and implemented in a manner which best fulfills our intended agreement. This Agreement may only be assigned by Seller to any affiliate. Buyer shall only be permitted to assign any portion or all of this Agreement with the prior written consent of Seller.

20. Termination and Cancellation. This Agreement and any performance pursuant to it may be terminated or suspended by either party if the other party

(a) is the subject of bankruptcy or insolvency proceedings; or

(b) defaults in its material obligations under this Agreement, and such default is not cured within thirty (30) days.

Upon the termination of this Agreement:

(a) Buyer agrees to pay for all Goods in Buyer’s possession or for which title has passed to Buyer, at current prices or at such other prices as have been agreed to in writing; and

(b) all amounts owing, if any, for the equipment or tanks relating to those Goods shall immediately become due and shall be paid within thirty (30) days of receipt of an invoice.

In the event of cancellation of an order by Buyer,

(a) a cancellation charge will be made against the Buyer, in proportion to the work completed by Seller, or obligated against the order

(b) Buyer owes any cancellation charges assessed against Seller by Seller’s suppliers.

(d) Prior to executing the Agreement, Buyer and Seller shall agree upon the milestone payments to Seller and a corresponding schedule for payments to Seller in the event the Agreement is terminated for the Buyer’s or Owner’s convenience or default.

21. Governing Law and Dispute Resolution. This Agreement shall be governed by the substantive laws of the State of Lousiana. The UN Convention on the International Sale of Goods shall not apply. In the event of a dispute concerning this Agreement, the complaining party shall notify the other party in writing thereof. Management level representatives of both parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining party shall seek remedies exclusively through arbitration. The seat of arbitration shall be the federal district court in Atlanta, GA, and the rules of the arbitration will be the Commercial Arbitration Rules of the American Arbitration Association, which are incorporated by reference into this clause.

22. Indemnity. Seller shall indemnify and hold harmless Buyer from claims for physical damage to third party property or injury to persons, including death, to the extent caused by the negligence of Seller or its officers, agents, employees, and/or assigns while engaged in activities under this Agreement. Buyer shall likewise indemnify and hold harmless Seller from claims for physical damage to third party property or injury to persons, including death, to the extent caused by the negligence of Buyer, its officers, agents, employees, and/or assigns. In the event such damage or injury is caused by the joint or concurrent negligence of Seller and Buyer, the loss shall be borne by each Party in proportion to its negligence. “Third party” shall not include Buyer or any future owner of the Equipment, their subsidiaries, parents, affiliates, agents, successors or assigns including any operation or maintenance contractor, or their insurer. No portion of the Equipment is “third party property” for the purposes of this Article.

Revision 10/22