Quantities; Grant of Exclusive License; Minimum Quantities.

 Grant of Exclusive License

2.  Quantities; Grant of Exclusive License; Minimum Quantities.

2.1.  Quantities.  During the term hereof, Seller shall manufacture, sell and deliver to Buyer, and Buyer shall purchase, accept from and pay Seller for, one hundred percent (100%) of Buyer's requirements for Product and for incorporation as an integral part of the Enhanced Product which Buyer will resell to Buyer's customers.  Buyer further agrees and covenants that Buyer shall only use, sell, market or distribute the Product or Enhanced Product for use on or within wood based materials and not for another purpose without the prior written approval of Seller, which may be withheld in Sellers discretion. 

           

2.2   Minimum Quantities.  Buyer is required to purchase the minimum quantities set forth on Schedule C attached hereto. 

3.        Price.    

Buyer shall purchase from Seller the Product, in the minimum quantities set forth according to Section 2.2 above, at the prices set forth in Schedule C attached hereto. 

4.  Estimates, Orders and Deliveries.

4.1.  Estimates. Thirty (30) days prior to the end of each calendar quarter, Buyer shall provide to Seller an estimate of the quantity of Product which Buyer expects to purchase in the next calendar quarter. 84.2.  Orders and Deliveries.  Buyer shall initiate sales by providing the Seller with a purchase order and a deposit of 50% of the order by wire order for the amount of Product the Buyer requires to be delivered in 60 days. All orders are F.0.B., Holly Oak Chemical – Fountain Inn, S.C. or Seller's plant to the location specified on the purchase order.

5.  Warranty of Seller; Disclaimer of Other Warranties; Buyer’s Exclusive

5.1.  Specifications. Seller warrants that the Product at the time of delivery thereof shall conform to the specifications established in writing by Seller for such Product. 

5.2.  Disclaimer. THE WARRANTY SET FORTH HEREIN IS IN LIEU OF ANY AND ALL WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE EXCEPT AS A FIRE ENHIBITOR OF WOOD BASED MATERIALS.  BUYER ACKNOWLEDGES THAT NO OTHER REPRESENTATIONS WERE MADE TO IT OR RELIED ON BY BUYER WITH RESPECT TO THE QUALITY AND FUNCTION OF THE PRODUCTS HEREIN SOLD. 

   

5.3.  Buyer's Remedies. Buyer's sole and exclusive remedy for failure of the Product sold hereunder to meet specifications, or for failure of any other obligation of Seller relating to the quality of Product to be sold hereunder, shall be expressly limited to Seller issuing a credit to Buyer's account for the quantity of Product that did not conform to the warranty set forth in this Section 5.  Buyer shall have the option to obtain replacement Product from Seller in the event of a breach of Seller's warranty set forth in this Section 5 in amounts not to exceed the amount of the order which is being replaced.  If Buyer obtains replacement Product from Seller, such replacement Product shall not be subject to the estimate and order terms set forth in Section 4 hereof. 95.4.  Exclusions to Warranty.  The above warranty is made subject to Buyer's proper use of any Product for the purpose for which such Product was intended.  The warranty does not cover any Product which (i) has been misused; (ii) has been subject to unusual stress; (iii) has been altered by Buyer, except in accord with such processes as have been established for the creation of the Enhanced Product; or (iv) has not been stored in accordance with instructions from Seller. 

5.5.  Limitation of Liability.  IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING UNDER CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR ANY OTHER THEORY OF LIABILITY IN CONJUNCTION WITH BUYER’S USE OF THE PRODUCT AND OR THE DEVELOPMENT, MANUFACTURE, MARKETING, DISTRIBUTION OR USE OF THE ENHANCED PRODUCT.  Such disclaimed damages include but are not limited to loss of profits, loss of use of the Product, damage to property, or claims of third parties.  In any event, Seller's total liability under this Agreement shall be limited to the unit purchase price paid to Seller for Product within the immediately preceding one (1) month period. 

5.6.  Advertising and Promotional Materials.  Any and all descriptions of the Product or Enhanced Product to be used in Buyer’s marketing and promotional literature, or in the marketing and promotional literature used by Buyer’s distributors and authorized resellers of the Product or Enhanced Product, shall be subject to the prior written approval of Supplier and Distributor.