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These terms and conditions govern the sale of Products (“Product or Productsâ€) and the provision of services (“Servicesâ€) by FgNano, Inc. (FgNANO) and its affiliates (“Sellerâ€), as well as by third-party vendors and/or service providers of Seller. These terms and conditions (“Agreementâ€) take precedence over Buyer’s supplemental or conflicting terms and conditions, to which notice of objection is hereby given. Neither Seller’s commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. FgNANO’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement. Buyer’s acceptance of the Products and/or Services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.

1. Orders: All orders placed by Buyer are subject to acceptance by Seller. Orders may not be canceled or rescheduled without Seller’s written consent. All orders must identify the products, unit quantities, part numbers, applicable prices, and requested delivery dates of the Products being purchased. Unless otherwise agreed, all materials will be shipped no later than one year from the date that Seller accepts the purchase order. Seller may, at its sole discretion, allocate Product among its Customers. Seller may designate certain Products and Services as non-cancelable, non-returnable (“NCNRâ€), and the sale of such Products shall be subject to any special terms and conditions contained in Seller’s Order Acknowledgement or NCNR Letter, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.

2. Prices: The prices of the Products are those specified on the front of the invoice. Pricing for undelivered Products may be increased in the event of an increase in Seller’s cost, change in market conditions, or any other causes beyond the Seller’s reasonable control. Price quotations shall automatically expire in thirty (30) days from the date issued, or as otherwise stated in the quotation.

3. Taxes: Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state, and local sales, excise and value-added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.

4. Payment: Payment may be made by check, money order, credit card, PayPal, or wire transfer (all fees are borne by the Buyer). A surcharge of 3% for credit card sales and 4% for sales via PayPal will be assessed except for sales shipped to the following states: Colorado, Connecticut, Florida, Kansas, Maine, Massachusetts, and Oklahoma. Where Seller has extended credit to Buyer, terms of payment shall be net thirty (30) days from the date of invoice, without offset or deduction unless otherwise noted. On any past due invoice, Seller may impose interest at the rate of one and a half percent (1.5%) per month. If Buyer fails to make each payment when it is due, Seller reserves the right to change or withdraw credit and thereby suspend or cancel performance under any or all purchase orders or agreements in which Seller has extended credit to Buyer. In the event of default by Buyer, Seller shall be entitled to costs, fees, and expenses, including but not limited to the recovery of attorney fees, court costs and fees, and collection costs.

5. Delivery and Title: All deliveries will be made “EXWORKS†place of shipment. Title and risk of loss pass to the Buyer upon delivery of the Product to the carrier. Seller’s delivery dates are estimates only, and Seller is not liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of the Seller, nor shall the carrier be deemed an agent of the Seller. A delayed delivery of any part of an Order does not entitle Buyer to cancel other deliveries.

6. Returns, Refunds, and Exchanges:

   • Returns: Only products originally shipped from FgNANO or from an authorized supplier (drop-ship) will be considered for return to FgNANO. By requesting the return of products to FgNANO, the Customer certifies that the products were purchased from FgNANO and there has been no substitution of the product from another supplier, distributor, or other source of the product. Any return must be in the original packaging and in unused condition except if approved for failure analysis/warranty evaluation by an FgNANO sales representative via a Return Material Authorization (RMA).
   • Exchanges: Any item for exchange must be in new condition and in the original packaging. Exchanges must be requested within 30 days of the ship date. Defective items may be exchanged/returned for the same item. Items purchased from FgNANO that have been used or altered and any items that have been sold as NC/NR will not be accepted for exchange.
   • Non-Cancelable and Non-Returnable Items: Products listed as NC/NR status (Non-cancelable and Non-Returnable) are identified on the Cart Page for web orders and via Order Acknowledgement for all other orders.
   • Return Freight / Restocking Fee: FgNANO reserves the right to charge cancellation and restocking fees, at a minimum rate of 15% to be deducted from the Customer refund. FgNANO does not refund the original shipping and handling. The Customer is responsible for all return freight charges. FgNANO does not accept COD shipments.
   • Refunds: Upon receipt and inspection of the returned item(s), FgNANO will advise of the refund status. In the case of factory warranty or failure analysis, FgNANO will issue any applicable credit pending manufacturer confirmation of failure. FgNANO initiates credits via the original method of payment within 48 hours of approval. Refunds via credit card can take up to 10 business days to post to the account.

   How to Return an Item:

   1. Contact an FgNANO sales representative within 30 days of the ship date of the item(s) by calling 1-703-229-3288 or by emailing info@FgNano.com.
   2. FgNANO will issue a Return Material Authorization (RMA) number. Once the RMA number is received, the item must be returned within 14 days. FgNANO will provide the Customer with specific instructions on where to mail/return item(s) with the RMA number. In most cases, returned items will be shipped to the FgNANO warehouse.
   3. Include the signed RMA in the return package stating the reason for the return and the original receipt.

7. Limited Warranty: Seller will transfer to Buyer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Seller warrants to Buyer that Products purchased hereunder will conform to the applicable manufacturer’s specifications for such products and that any value-added work performed by Seller on such Products will conform to applicable Buyer’s specifications. If Seller breaches this warranty, Buyer’s remedy is limited to (at Seller’s election) (1) refund of Buyer’s purchase price for such Product (without interest), (2) repair of such Products, or (3) replacement of such Products; provided that such Products must be returned to Seller, along with acceptable evidence of purchase, within 20 days from the date of delivery, transportation charges prepaid. No warranty will apply if the Product has been subject to misuse, neglect, accident or modification, or has been soldered. SAVE AS EXPRESSLY PROVIDED IN THESE TERMS AND CONDITIONS, ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.

8. Limitation of Liabilities: BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COSTS, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, INJURY TO REPUTATION OR LOSS OF BUYERS, PUNITIVE DAMAGES, IPR INFRINGEMENT, LOSS OF CONTRACTS OR ORDERS, OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON (a) SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (b) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN SELLER, or (c) USE IN COMBINATION WITH OTHER PRODUCTS.

9. Export Control: Buyer certifies that it will be the recipient of the Products to be delivered by Seller. Buyer understands that the associated technical data (“productsâ€) listed on their Purchase Order includes items that are governed by the U.S. Export Administration Regulations (“EARâ€), by the U.S. Foreign Assets Control Regulations (“OFACâ€), and the International Traffic in Arms Regulations (“ITARâ€). The Buyer understands that its sale or distribution of said products may constitute exports or re-exports, and as such, must be in accordance with the requirements administered by the Bureau of Industry and Security, Department of Treasury, and Department of State. It is understood that the country of ultimate destination, commodity classification, end-user, or end-use for any said products could affect the applicable license requirements and exportability. The Buyer agrees to consult various resources, such as the EAR, ITAR, and OFAC, by the U.S. Department of Commerce’s Bureau of Industry and Security’s (“BISâ€) Export Counseling Division, and other appropriate Government Sources to ensure that the sales and distribution of said products are processed in accordance with all applicable laws. The Seller will not transfer any export-controlled products to a “non-U.S. Person†without the proper authority of the United States Government and the buyer’s written approval.

10. Use of Products: Unless otherwise noted, Products sold by Seller are not designed, intended, or authorized for use in applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life, or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend, and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses, and liabilities arising out of or in connection with such use or sale.

11. Force Majeure: Seller is not liable for failure to fulfill its obligations for any accepted Order or for delays in delivery due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation, or inability to obtain labor, materials, or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of a force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Buyer.

12. Technical Assistance or Advice: If technical assistance or advice is offered or given to Buyer, such assistance or advice is given free of charge and only as an accommodation to Buyer. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.

13. General: (a) The laws of the State of Virginia will exclusively govern any dispute between Seller and Buyer. (b) Buyer may not assign this Agreement without the prior written consent of Seller. Seller or its affiliates may perform the obligations under this Agreement. This Agreement is binding on successors and assigns. (c) Products, including intellectual property, are subject to any applicable rights of third parties, such as patents, copyrights, and/or user licenses.