TERMS AND CONDITIONS

GENERAL TERMS AND CONDITIONS OF SALE

• General. These General Terms and Conditions of Sale (“TERMS”) shall apply to and be incorporated in all orders, offers, confirmations, and agreements (collectively referred to herein as “agreements”) between Smart Altitude Corporation (“Seller”) and the business, entity, enterprise, company, or person purchasing any product(s) or services from Seller (“Buyer”). The Buyer and Seller are each identified in Seller’s written quotation, confirmation, acknowledgment of purchase order, or any invoice respective to such purchase; provided, however, that any written agreement to the contrary executed by an authorized officer of Seller and the Buyer’s purchasing representative shall supersede any conflicting term or condition stated herein. Other terms and conditions presented by Buyer shall have no controlling or legal effect, whether contained in Buyer’s purchase orders, invoices, bills of lading, confirmations, or any other documentation (whether in written or in electronic form), nor shall prior dealings or usage in the trade in any way affect these TERMS or any other agreement between Buyer and Seller. Seller and Buyer may hereinafter be referred to, individually, as “Party” or collectively, as “Parties”.
• Acceptance. Any purchase order or contractual offer shall be subject to acceptance by Seller, and shall not be considered a binding agreement on Seller unless and until so accepted in writing by Seller or by Seller’s full performance thereof, notwithstanding that any conflicting or additional terms beyond product, price, quantity, and delivery date (“Basic Purchase Order Terms”) in any purchase order or offer to purchase from Buyer shall be deemed rejected irrespective of Seller’s method of acceptance. Prior to Seller’s performance under any agreement, Seller shall have the right to demand Buyer’s written guarantee or security for the fulfillment of Buyer’s obligations under any applicable agreement and these TERMS. Notwithstanding the foregoing, Seller shall have the right, without liability or prejudice, to terminate such agreement in whole or any part thereof not yet performed.
• Pricing. Regardless of the time of Buyer’s offer and unless otherwise agreed by the Parties in writing, product pricing shall be based on Seller’s then-current Prices are subject to change without notice and, except where a quote is declared in writing to be ‘firm’, Seller reserves the right to update pricing at any point prior to Buyer’s actual receipt of goods, with reasonable notice. If Buyer refuses any price adjustment at any point in time, Seller shall have the right to terminate any orders or agreements placed without liability or further obligation on either party. Following the conclusion of the Parties’ agreement, Seller may adjust any product pricing as deemed reasonable by Seller. Prices are provided in U.S. currency unless otherwise indicated, and must be paid in U.S. currency. Any pricing, acceptance of purchase order, or offer for sale is provided exclusive of shipping, handling, insurance costs, applicable duties, and taxes, including but not limited to local, state, federal and foreign taxes, assessments, and tariffs (exclusive of income taxes), unless exclusion is expressly prohibited by law. Seller shall make a commercially reasonable effort to state any additional fees described herein on the invoice, if any and as applicable, but regardless, all additional costs shall be borne at Buyer’s expense unless agreed in writing otherwise. All costs related to export packaging, special packaging requests, or any premium shipping request shall be subject to acceptance by Seller and borne by Buyer.
• Credit Terms. Any decisions related to credit terms by Seller are non-binding, and Seller may elect to modify, withdraw, or alter credit terms or Seller’s requirements at any time without notice.
• Payment. Payment shall be made in U.S. currency, without any discount or set-off by Buyer, and must be delivered to Seller within the period for payment stated in the invoice or, if not otherwise stated, within net thirty (30) days from the invoice date. Time for payment shall be of the essence. Buyer shall notify Seller in a detailed writing, within net fourteen (14) days of the applicable invoice date, of any good faith claim, dispute, or complaint(s) made by Buyer relating to the payment of such invoice; the absence of which all such claims, disputes or complaints shall be waived. Seller shall have the right to demand full or partial payment in advance or postpone subsequent deliveries for as long as any previous delivery remains unpaid, or if Buyer fails to provide adequate security. Any owing amounts remaining due and payable following the invoice due date (without proper submission of good faith, written notice to Seller) are subject to a late payment interest service charge of the higher of one percent (1%) per month for each month (or fraction thereof) that payment is not received by Seller, or the maximum percentage allowed by applicable law. In the event payment under an agreement is not paid when due, Buyer will be deemed in material default of all agreements between the Parties and these TERMS, and Seller may invoke all rights and remedies available. If Buyer fails to meet its obligations, all extra-judicial costs reasonably incurred to obtain the performance of such obligations, damages, and other compensation shall be charged to Buyer. Such costs may include, without limitation, the costs of collection agencies, process servers and attorneys. If a court of law or adjudicating authority fully or substantially awards judgment against Buyer and its decision has become final, Buyer shall be under a duty to reimburse Seller for all judicial costs incurred at all preliminary, trial, and appellate levels including, without limitation, any amounts not awarded by the court or adjudicating authority. Regardless, Seller shall have the right to cease delivery of any current or future supplies to Buyer at any time due to Buyer’s failure to timely pay in full. Seller reserves the right to freeze any shipment or order based on a perceived or actual repudiation of a party’s contracts or its terms or obligations, and Seller shall be entitled to withhold provision of supplies until Buyer has provided adequate assurances, as determined by Seller, that Buyer can continue to perform under the contracts and will do so.
• Taxes Seller will honor legally valid documents evidencing Buyer’s exemption from taxes, duties and/or levies if submitted by Buyer in a timely manner. Deliveries exempt from excise duties, levies and/or taxes made at Buyer’s request, where Seller prepared the customs or excise duty documents based on Buyer’s information, shall be the sole responsibility and liability of Buyer. Buyer shall fully indemnify and hold Seller and Seller’s affiliates, officers, employees, agents, and contractors (collectively, the “Indemnified Persons” ) harmless against all claims, demands, allegations expenses, liabilities, duties, taxes, fines, losses, damages, and costs (collectively, the “Demands”) arising from or related to incorrect or insufficient data having been provided for the clearance of documents or of other irregularities in the field of customs, taxes, duties, or VAT regulations, regardless of whether any applicable mistake or fact is attributable to a specific Party. If any product is authorized for resale by Buyer, Buyer shall ensure that customs and/or excise duty documents are updated as required by applicable law.
• Unless timely notified otherwise by Buyer pursuant to the inspection conditions set forth herein, Seller’s determination of quantity delivered shall be binding. The Buyer shall be entitled to have a representative present at the time of Seller’s quantity determination. Specifications from Buyer regarding the maximum capacity of and liquid level in any Buyer’s bottles, pails, drums, totes, and/or storage tank(s) and the nature of the product contained therein shall be relied upon and deemed accurate. The consequences of any inaccurate specifications shall be for the account of Buyer. Buyer shall fully indemnify and hold harmless the Indemnified Persons against all Demands arising from or related to materials undisclosed to Seller contained in the storage tank and storage tank overflow occurring during the course of delivery due to Buyer’s inaccurate specification or instruction.
• All deliveries shall be Free Carrier (Incoterms 2020) at Seller’s address, unless otherwise agreed by the Parties in a writing signed by both Parties. Notwithstanding the foregoing, if applicable, Seller shall be entitled to determine the route and manner of delivery if so charged. Should any vehicles or means of transport used by or on behalf of Seller cannot reach the agreed delivery site using their own power, the product shall be delivered to the nearest accessible location chosen in Seller’s sole discretion. The person(s) delivering the product on behalf of Seller shall not be required to ascertain in advance whether Buyer can take delivery of such product. Buyer shall provide appropriate and safe unloading facilities compliant with applicable laws, rules, ordinances and regulations. If Buyer would like Seller to provide Buyer with loading documents, Buyer is to send written instructions to Seller at least five (5) working days prior to the estimated delivery date. Seller shall not be liable for failure of discharge implements or unloading vehicles or equipment unless supplied by Seller. If Buyer is responsible for picking up and transporting the product, Buyer, at its risk and expense, shall promptly arrange for such pick up upon Seller’s notice that the product is available for pick up. Buyer shall provide the appropriate means of transport including, without limitation, ships, railway carriages, trucks, storage, and containers. Buyer shall ensure that the means of transport is clean, dry, and appropriately climate-controlled, suitable for loading and transporting the applicable product, and fully comply with all safety, technical, and other legal and safety requirements that Seller and/or the any regulatory authority may impose. Seller is not obligated to inspect the means of transport provided by or on behalf of Buyer prior to loading. Buyer shall fully indemnify and hold any Indemnified Persons harmless against all Demands arising out of or related to Buyer’s collection, transportation and Buyer’s means of transport. Seller shall be entitled to refuse to load or have loaded any means of transport not compliant with applicable safety, legal, or technical requirements. Should transportation, pick-up, or delivery be inexcusably delayed or impeded by Buyer, or if Buyer refuses to promptly pick-up, or otherwise fails to provide the information or instructions necessary for delivery, Buyer shall be liable for and shall reimburse (as applicable) Seller for any additional delivery, storage, insurance, penalty, and other ensuing and related costs arising from Buyer’s failure to promptly facilitate pick-up or delivery. For the avoidance of doubt, if all or any of the product is damaged for shipments made hereunder, even if Seller arranged to ship product on Buyer’s behalf, Buyer’s recourse shall reside against the shipper. Upon Buyer’s request, Seller will expedite a replacement order for which Buyer will be additionally responsible for payment to Seller because Buyer recourse for damaged product properly lies against Buyer’s shipper, irrespective of who arranged the transportation.
• Delivery Delivery times are approximate and are not of the essence unless otherwise agreed in a controlling agreement. Seller shall not be liable for any damage, loss or expense whatsoever resulting from late delivery. In the event of delayed delivery, Seller shall be granted a commercially reasonable grace period to satisfy its performance obligations. If such grace period is exceeded, Buyer shall be entitled to terminate the applicable agreement or order. For product delivered in installments, delay, or failure by Seller to deliver any one or more installments or any claim or complaint made by Buyer shall not excuse Buyer’s performance or entitle Buyer to reject or cancel any further installments or to cancel any further agreement.

10. Product may only be returned upon Seller’s prior written consent and valid Return Material Authorization (“RMA”) which shall include Seller’s reasonable instructions with regard to packaging and transportation. Seller shall provide Buyer with an RMA within five (5) business days of Buyer’s request for the return of non-conforming product(s). A restocking charge of 10% may apply on all returns.
11. Unless agreed otherwise or required by law, and except where packaging is provided on loan to Buyer, the costs of the usual and customary packaging of the product shall be discretely stated on Buyer’s invoice, and Buyer shall acquire ownership of the packaging concurrently with the transfer of title to the product to Buyer. Packaging provided by Seller shall exclusively be used as packaging material for the product supplied by Seller. If Buyer inappropriately uses such packaging for alternative means, allows it to be used for any other purpose, or disposes of the packaging, Buyer shall fully indemnify and hold Seller harmless against all Demands arising from or related to in respect thereof. Buyer shall comply with all applicable authoritative laws, ordinances, regulations, and rules governing the re-use or disposal of packaging or product and shall ensure Seller’s proprietary notices are removed prior to such disposal or re-use. Seller shall not be obligated to take back, receive or process any delivered packaging materials, unless the law so requires or as agreed in writing by Seller. Buyer expressly acknowledges that the products are not packaged to withstand temperatures below freezing, which could damage or render products non-conforming or otherwise unsuitable for resale; Buyer should instruct shipper or its applicable logistics agent accordingly to ensure proper handling.
12. Title and Risk of Loss or Risk of loss to the product shall pass to Buyer per the description agreed by the Parties in writing, or otherwise in the Incoterms 2020 specified above. Seller shall retain a purchase money security interest (“PMSI”) to any product delivered or scheduled to be delivered until Seller receives full payment for the product and any other costs, fees, or amounts outstanding that arise from or relate to the purchase, these TERMS, or any other agreement between Seller and Buyer. Until such PMSI expires or is dissolved by circumstances, Buyer agrees to (i) keep the product free from any charge, lien, or other encumbrance and shall keep the product identifiable, (ii) not remove proprietary notices, and (iii) keep the product separate from other property in Buyer’s possession and not comingle with other inventory. For purposes of repossessing any of the product, Seller shall be entitled to self-help and enter any land and/or buildings or structures where the product may be situated. All costs incurred by Seller in repossessing the product shall be paid by Buyer.
13. Inspection; Defects, or Non-Conformities. Upon receipt of any product, Buyer shall inspect such product for defects and shall ascertain through reasonable visual inspection that (i) the correct product was delivered, (ii) the quantity is accurate, and (iii) where applicable, the labels or other documents relating to the product correspond to the product ordered. If Buyer discovers that any product does not conform as agreed or to Seller’s published product specifications, Buyer shall, before any of the product has been consumed, resold, altered, or processed, notify Seller in writing within net thirty (30) days (net ninety (90) days for latent defects) from the delivery date of such product. Such notification shall provide detailed information as to the claimed variation, defect, or shortage, and Buyer shall afford Seller a reasonable opportunity to inspect the Buyer’s failure to adhere to the terms of this Section shall constitute a waiver by Buyer of all claims based on any variation, defect, or shortage of any product, and shall be conclusive evidence that Seller has satisfactorily performed its obligations under the applicable agreement. For clarity, any variation reported by Buyer falling within a zero to five percent (5%) range of the published specifications of Seller shall not be regarded as a defect or constitute non-performance by Seller under the “perfect tender” rule; in addition, shortages reported by Buyer of less than five percent (5%) of the gross weight of a bulk shipment shall not constitute Seller’s non-compliance or non-performance of the agreement. The exclusive remedy for any shortage, defective, or non-compliant product manufactured, distributed, packaged, and delivered by Seller, whether or not arising from negligence or any other cause, shall be limited to, at Seller’s option, either (i) the product being replaced at the original point of delivery, or (ii) a credit or refund of sales price in proportion to the defect(s) to which the claim relates including, without limitation, transportation costs and taxes. At Buyer’s risk and expense, Seller may require Buyer to return the product to Seller before Buyer shall be entitled to any replacement, credit or refund. Should an actual defect or non-conformity be verified by Seller, reasonable costs to return the defective or non-conforming product shall be reimbursed to Buyer by Seller. The foregoing remedy shall not apply to product comingled with non-Seller material, product damaged during Buyer’s transit, or to product damaged or lost due to Buyer’s willful misconduct, negligence, improper storage, environmental conditions, or failure to follow Seller’s oral or written instructions. SELLER MAKES NO EXPRESS OR IMPLIED WARRANTIES AND ALL SUCH WARRANTIES ARE SPECIFICALLY EXCLUDED, INCLUDING ANY WARRANTY AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR OR SPECIAL PURPOSE, OR NON-INFRINGEMENT.
14. Limitation of NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN OR IN ANY AGREEMENT BETWEEN THE PARTIES TO THE CONTRARY, NEITHER PARTY SHALL UNDER ANY CIRCUMSTANCE BE LIABLE FOR ANY LOSS OF PROFITS OR OTHER ECONOMIC LOSS, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES REGARDLESS OF CAUSE, EVEN IF SUCH PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THE LIMITATIONS IN THIS SECTION SHALL APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION ACTIONS ARISING OUT OF TORT, STRICT LIABILITY, AND CONTRACT LAW. UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, THE MAXIMUM AGGREGATE LIABILITY FOR WHICH SELLER MAY BE LIABLE UNDER ANY AGREEMENT, REGARDLESS OF THE CAUSE, SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE AFFECTED PRODUCT ACTUALLY PAID OR PAYABLE TO THE SELLER HEREUNDER. SELLER SHALL HAVE NO LIABILITY FOR NEGLIGENT OR INTENTIONAL ACTS AND OMISSIONS OF ANY THIRD PARTY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO THE LOSS OF PROPERTY, DEATH, OR PERSONAL INJURY RESULTING SOLELY FROM A PARTY’S WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE.
15. Additional Advice and Seller shall observe due care in rendering advice or services regarding the product. Seller shall not, however, be liable in any regard for Demands alleging the advice or services were defective unless the Demands result solely from Seller’s willful misconduct or gross negligence.
16. Safety, Health, and Seller shall provide Buyer with any available safety instructions, including warnings, safety, and health information concerning the product (and/or its packaging) sold under these TERMS. The Buyer agrees to provide such information warning of such possible hazards to any persons with whom Buyer can reasonably foresee may be exposed to such hazards, including but not limited to Buyer’s employees, agents, contractors, and customers. Buyer shall fully indemnify and hold the Indemnified Persons harmless against all Demands, claims, and harms arising out or related to Buyer’s or any of Buyer’s end user’s handling or use of the product (or any component thereof) where (i) Buyer failed to provide adequate hazard warnings, safe use, or health information concerning the product, (ii) Buyer failed to adhere to any applicable law, rule, ordinance, or regulation, (iii) Buyer is in breach of an agreement or these TERMS, (iv) the product (any portion thereof) was substituted, modified, changed, or comingled or combined with any other non-Seller material or substance without Seller’s written consent, or (v) when combined with any substance or material not made by or delivered by Seller, the product infringes upon any third party intellectual property right. Buyer harms shall include but are not limited to any damage contributed to or caused by Buyer to any shipping material, tote, container, or other product container/packaging/delivery supply. Any damage contributed to or caused by Seller shall be reimbursed to Seller by Buyer upon Seller’s first demand.
17. Force Excluding Buyer’s payment obligations as agreed or these TERMS, any whole or partial, temporary or permanent, delayed, obstructed, or impeded performance by Seller or Buyer shall be excused without liability on the occurrence of a Force Majeure Event until such Force Majeure Event ceases. A “Force Majeure Event” shall mean circumstances beyond a Party’s foreseeable or commercially reasonable control, including, without limitation, those related to: war, acts of terrorism, acts of God, embargoes, actions, restrictions, or requests of any governmental authority, changes in any applicable law, rule or regulation, foreign or domestic, or any agency or subdivision thereof, strikes, labor disputes, casualties, fires, accidents, any impediments, pandemics, changes, difficulties or restrictions whatsoever on the production, manufacture, supply (including any change in distance of the supply routes), receipt, transportation, exportation and/or importation of raw or component materials, labor, fuel, parts or machinery for the product, and stock shortages. The Party experiencing a Force Majeure Event shall promptly notify the other Party in writing of the circumstances giving rise to such occurrence. If the period during which a Party cannot fulfill its obligations due to a Force Majeure Event exceeds or will exceed net sixty (60) days, either Party shall be entitled to terminate the affected agreement, without any liability or obligation to pay Demands to the other Party, based on such Force Majeure Event termination.
18. Termination. Unless otherwise prohibited by applicable law, in Seller’s sole discretion and without liability therefor or prejudice to any other right or remedy available to Seller, Seller shall be entitled to suspend performance or to terminate any agreement by notifying Buyer writing, in the event: (i) Buyer is placed in receivership, declared bankrupt, files a petition for its own bankruptcy or liquidation, requests a general suspension of payment, makes an assignment for the benefit of creditors, becomes insolvent, or ceases its business in any other manner, (ii) where changed circumstances make the performance of such Party impossible or so burdensome and/or disproportionately costly that Seller’s compliance with an agreement cannot commercially reasonable, or (iii) Seller reasonably believes that Buyer is or will be unable to meet its obligations as agreed, and Buyer fails to offer adequate security or assurances for the performance of its obligations. Either Party may terminate an agreement if (i) the other Party materially defaults in complying with any of its obligations as agreed to thereunder or hereunder, and such Party fails to remedy such default within net thirty (30) days (net ten (10) days for payment obligations) following receipt of written notice to cure. Should any agreement be terminated for any reason, all debts and/or payments owed to Seller by Buyer for Seller’s full or partial performance shall become immediately Regardless of the conclusion of any agreement, obligations hereunder concerning confidentiality, indemnification, limitations of liability, language, forum, and those by their nature and context intended to continue shall so survive, and these TERMS shall continue to survive and apply to all aspects arising from or related to any agreement and delivery or service(s) already (in whole or in part) performed or received by Buyer.
19. Language; Law and English shall be the controlling language of any dispute and any interpretation of these TERMS and any other agreement between the Parties. Any translation into any other language is for convenience only and shall have no legal or other effect. Subject to any written agreement to the contrary, these TERMS and any other agreement concluded by Buyer and Seller, and any disputes arising therefrom, shall be governed by the laws of the State of Michigan, without regard to its conflict of law principles; Buyer irrevocably waives all objection to and submits to the venue of Michigan in any suit, action, or proceeding arising from the transaction or relationship contemplated hereunder. Application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded and shall have no force or effect on these TERMS.
20. Confidential Buyer shall not use or exploit any Confidential Information for any purposes or activities other than those specifically authorized by Seller in writing. The Buyer shall not disclose any Confidential Information to any third party without the prior written authorization of Seller. The Buyer shall protect and keep all Confidential Information secret at all times, and Buyer shall implement effective security procedures in order to avoid disclosure or misappropriation of any Confidential Information. For the purpose of this Article, “Confidential Information” shall mean and include any data, material, process, or information in any form whatsoever that is not in the public domain, including know-how and trade secrets, relating to, or contained or embodied in, any Seller products and/or the business or affairs of Seller, but excluding where Buyer has paid Seller in full for title of such. Any data, material, formulas, process and information shall be considered to be Confidential Information hereunder (i) if Seller has marked them as such, (ii) if Seller, electronically, orally or in writing, has advised the Buyer of their confidential nature, or (iii) if, due to their character or nature, a reasonable person in a like position and under like circumstances would treat them as confidential.
21. Buyer may not assign any of its rights or obligations arising from any agreement with Seller or these TERMS without the written consent of Seller. Notwithstanding the foregoing, the Seller may assign any agreement with Buyer and any obligations thereunder to any corporation, subsidiary, or affiliate of Seller subject to prior reasonable written notice to Buyer. If Seller and Buyer are unable to settle any claim, demand, accusation, expense or damage, or the like arising hereunder or from any agreement between them, or any breach thereof, Buyer must bring legal action within one (1) year of such cause of action having arose, thereafter, all relevant claims shall become time-barred. Buyer agrees to maintain insurance coverage in the amount and type(s) reasonably necessary to insure incident(s) and/or Demands arising from or related to these TERMS and any agreement between the Parties, and shall name Seller as an additional insured upon reasonable request. Nothing contained in these TERMS nor any agreement between the Parties may be modified or waived except as agreed to in writing by Seller and executed by a duly authorized officer of Seller. Seller’s delay, omission or failure to enforce any right, power, or remedy shall not be considered a waiver of any such right, power or remedy, nor shall it impair the exercise thereof by Seller at any time thereafter. The rights or remedies set forth herein are in addition to any other rights or remedies Seller may have at law or in equity. If any provision hereunder and/or in any agreement shall be contrary to the laws or jurisdiction in which the same shall be sought to be enforced, the illegality or unenforceability of any such provision shall not affect the other terms, covenants, or conditions hereof, and the remainder of these TERMS and/or an agreement between the Parties, other than that part held to be illegal or unenforceable, shall be valid and enforced to fullest extent permitted by law. No rule of construction applies to the disadvantage of Seller on the basis that Seller put forward these TERMS or any part of any agreement between the Parties. Buyer represents and warrants that it shall comply with all applicable laws in connection with undertaking its obligations and it understands and shall comply with the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and all other applicable anti-bribery and anti-corruption laws of the jurisdictions under which Buyer is or may be acting hereunder or under any agreement between the Parties.

The Additional Terms below relate to the Sale or Lease of Capital Equipment. The following terms shall apply in addition to the above General Terms and Conditions of Sale where Capital Equipment is being sold, leased, loaned, or transferred (‘Equipment”).

22. Use of Equipment. The Equipment may be used by Buyer during the supply of products/services from Seller solely in conjunction with Seller’s products/services. Buyer shall not use the Equipment with any other non-Seller products, nor shall Buyer maintain or store any Equipment improperly, carelessly, or in violation of the terms hereunder or any applicable laws or regulations of any governmental authority applicable to the use of such Equipment. The Equipment shall be operated and used by competent and qualified personnel in the manner and for the use contemplated by the supply of products/services hereto. Notwithstanding the foregoing, Buyer assumes all risks associated with the operation and use of Equipment, and Buyer hereby releases Seller from all claims associated with the use, maintenance, storage, transport, and handling of the Equipment by Buyer or its agents.
23. Title to the Equipment. The Equipment, shall at all times, while in Buyer’s possession and use remain the sole property of the Seller and the Buyer shall not have or acquire full right, or title to the Equipment until paid (if purchased). The Equipment is subject to the PMSI in favor of Seller as secured party, and Buyer agrees to keep the Equipment free from any charge, lien, or other encumbrance and maintain the Equipment identifiable and separate from other property in Buyer’s possession. For purposes of repossessing any of the Equipment pursuant to this Section, Seller shall be entitled to enter any land and/or buildings or structures where the Equipment may be situated. All costs incurred by Seller in repossessing the Equipment shall be paid by the Buyer. Other than those expressly contained herein, Buyer shall have no further rights whatsoever in the Equipment.
24. Maintenance & Repair. Unless agreed by the Parties otherwise in a writing signed by an office of Seller, Buyer shall, for the duration of the use of the Equipment (or until fully paid for) and at its sole cost, maintain the Equipment in good mechanical condition and working order at all times, making all necessary repairs and replacements, furnishing all labor, parts, mechanisms, and devices required therefore. Without Seller’s written permission, Buyer shall not make any alterations, additions, or improvements to the Equipment if leases or borrowed, and shall in no way alter, remove or disable any safety mechanisms related to the Equipment until fully paid for and no longer subject to the applicable PMSI.
25. Indemnification/Liability. Buyer shall indemnify and hold harmless Seller (and its suppliers, affiliates, agents, employees, successors and assigns (collectively, the “Seller’s Indemnified Parties”)), harmless from any liability, claim, fine, damage or loss, including reasonable attorney’s fees (collectively, “Demands”), arising out of Buyer’s (or its agent’s, successor’s or assign’s) (i) possession, storage, transport, operation, control or use of the Equipment during its use, (ii) breach of any performance obligation, representation or warranty contained herein, or (iii) Buyer’s willful misconduct, negligent act(s), fraud or omission(s). Buyer shall pay the cost of the defense of any such action brought against Seller, either alone or in conjunction with others, upon any such liability or claim. Buyer shall satisfy, pay and discharge any and all Demands that may be recovered against Seller in any such action, provided that Seller gives Buyer prompt written notice of any such Demands. The obligations to indemnify with respect to matters occurring or arising during the use of the Equipment shall continue in full force and effect notwithstanding the conclusion date of the use of the Equipment. Buyer assumes all costs and risk associated with the Equipment while in its use, possession, and control, and shall fully cover any and all costs related to the Equipment during its use and possession as demanded by Seller. Seller expressly waives any and all liability associated with the Equipment in Buyer’s possession, including but not limited to damage to Buyer’s site or property, or damage to the Equipment. Seller shall inspect Equipment upon its return and, where applicable, invoice Buyer for all damages for such Equipment.
26. Environmental Reporting & Indemnity. Buyer agrees to be responsible for any all registration requirements under applicable law, as well as reporting and or compliance, including but not limited to any and all Occupational Safety and Health Administration (“OSHA”) requirements, compliance pursuant to the Oil Pollution Act, requirements associated with Spill, Prevention, Control and Countermeasure (“SPCC”) plans and actions, as well as any and all other applicable federal, state, or local laws, whether environmental or otherwise, relative to the Equipment. Seller shall not be responsible for any reporting and compliance associated with the Equipment and hereby expressly waives any liability or responsibility relative to legal requirements associated with the Equipment. Buyer shall defend, indemnify, and hold harmless Seller from and against any and all damages arising from or in connection to (i) Buyer’s legal compliance with all applicable laws, statutes, and guidelines relative to the Equipment; (ii) property damage, injury, or death, caused in whole or in part by Buyer pertaining to the responsibilities relative to the Equipment outlined herein; (iii) any and all environmental violations or damages arising from the Equipment; and (iv) any and all breaches or defaults regarding Buyer’s responsibilities as applied to the Equipment.