PURCHASE ORDER TERMS AND CONDITIONS

Rev: January 1, 2024

Applicability; Modifications to these Terms.some text
1. These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the Goods (as set forth in each PO) by Odyssey Mining LLC, a Texas limited liability company (“Seller”) to the undersigned buyer and the buyer set forth in each applicable PO (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
2. The term “Purchase Order(s)” or “PO(s)” shall refer to any purchase order, sales confirmation, quote, or any other similar agreement to purchase goods that is accepted by Seller from Buyer with respect to goods or services offered for sale by Seller, whether such purchase order, sales confirmation, quote, or any other similar agreement to purchase goods and services is made and entered into prior to, on, or after the effective date of these Terms. The term “Goods” refers to goods to be sold by Seller and purchased by Buyer as listed on each applicable PO. The POs and these Terms (collectively, the “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Except where expressly provided otherwise in these Terms, these Terms prevail over the terms of any appliable PO. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. For the purposes of the Agreement, “Manufacturer” refers to the manufacturer or the supplier of the Goods from whom the Seller will acquire the Goods.
3. The Buyer acknowledges and agrees that the Buyer may from time to time modify these Terms, as the Seller deems necessary in its absolute discretion. The Seller will provide notice to the Buyer of such modifications at least fifteen (15) calendar days prior to the date on which such modifications take effect. If the Buyer objects to such modifications to these Terms, then Seller shall have the right to cancel and terminate these Terms and any outstanding POs, whereupon the Seller will refund any portion of the Price on outstanding POs for which the applicable Goods have not yet been delivered to the Delivery Point, and thereafter Seller shall have no further obligations to Buyer except those that survive the termination of the Agreement. If the Buyer fails to object to such modifications by or before the aforementioned last calendar day of the month in which the Seller provide its modifications to these Terms, then the modifications to these Terms as specified in the Seller’s notice shall be automatically deemed accepted by the Buyer.
Delivery.some text
1. Unless otherwise set forth in the applicable PO, Seller shall deliver the Goods to the Buyer’s requested address (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within three (3) days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Unless otherwise set forth in the applicable PO, Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an outstanding PO.
2. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Delays; Non-Delivery.some text
1. The parties agree that any lead time, manufacturing or assembly timeline(s), procurement timeline(s), and delivery dates set forth in each PO are approximate and that procurement and delivery of any Goods ordered from Seller under each applicable PO may be delayed for a period of time sufficient to allow Seller to procure, manufacture, assemble, or otherwise acquire the Goods for Buyer. The parties further agree that Seller shall not be held liable to Buyer or any other party for any losses, damages, penalties, or expenses for any delay in delivery of the Goods. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
2. Seller reserves the right to refuse, cancel or delay any shipment to Buyer if any amounts due to Seller from Buyer for any reason become past due, when payment for a shipment has not been arranged to Seller’s reasonable satisfaction, or when Buyer has failed to perform any of its material obligations under the applicable PO or these Terms. Such refusal, cancellation or delay of any shipment shall not be deemed a breach or default of the Agreement by the Seller.
Title and Risk of Loss; Security Interest. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code in which the Buyer’s principal place of business is located or where the Goods are located. Furthermore, until payment in full for the Goods has been received by the Seller, the Buyer hereby grants Seller a purchase money security interest in the Goods sold to the Buyer hereunder and to any proceeds therefrom (including accounts receivables). Buyer shall sign and deliver to the Seller any document to perfect this security interest that the Seller reasonably requests, and Buyer hereby authorizes and grants to Seller the authority to issue notice(s) to other creditor(s) of Buyer and file and perfect this purchase money security interest where the Goods are located or where the Buyer’s principal place of business is located.
Inspection and Rejection of Nonconforming Goods.some text
1. Buyer shall inspect the Goods promptly after receipt. Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods within three (3) days after Buyer’s receipt of the Goods. “Nonconforming Goods” means only where the Goods or product shipped is different than identified in the applicable PO.
2. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility identified on the applicable PO or to a location requested by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
3. Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under the Agreement to Seller.
Price; Advance Payments. Buyer shall purchase the Goods from Seller at the price(s) (the “Price(s)”) set forth in each applicable PO. All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Any deposits, down payments, advance payments, or similar payments shall be non-refundable. Unless otherwise set forth on the applicable PO, the Price for the Goods excludes all packaging costs, transportation costs, freight, insurance, or any required federal, state, or local sales or other taxes (except for taxes based on Odyssey’s net income), duties, export or custom charges, VAT charges, brokerage, or other fees, for which Buyer shall be fully responsible.
Payment Terms. Unless otherwise set forth in the applicable PO, Buyer shall pay all invoiced amounts due to Seller within five (5) days from the date of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer and in US dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for fifteen (15) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
Limited Warranty.some text
1. Subject to Section 8(c), Seller warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to the specifications set forth Seller’s or Manufacturer’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship.
2. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; OR, (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR, (iii) WARRANTY OF TITLE; OR, (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
3. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 8 (a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
4. The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within fifteen (15) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
5. The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
6. Subject to Section 8(d) and Section 8(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
7. THE REMEDIES SET FORTH IN SECTION 8(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).
Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO ANY PURCHASE ORDER OR THESE TERMS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD PURSUANT TO THE APPLICABLE PURCHASE ORDER(S), LESS THE FAIR MARKET VALUE OF THE GOODS PURCHASED BY BUYER PURSUANT TO SUCH PURCHASE ORDER(S).
Compliance with Laws. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under the Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate the Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. The Buyer shall not, and shall not permit any member of the Buyer Group (as defined in Section 11) to, promise, authorize or make any payment to, or otherwise contribute any item of value to, directly or indirectly, any non-U.S. government official, in each case, in violation of the U.S. Foreign Corrupt Practices Act (“FCPA”) or any other applicable anti-bribery or anti-corruption laws and regulations. Buyer represents and warrants that each member of the Buyer Group is currently in compliance with and shall at all times during the term of the Agreement remain in compliance, with the regulations of the OFAC (including those named on OFAC’s Specially Designated and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto. Seller shall have the right to immediately terminate any or all applicable POs and these Terms if Seller determines that the Buyer is in breach of any of its obligations under this Section.
Indemnification. The Buyer and Buyer’s members, shareholders, directors, managers, officers, employees, agents, affiliates, successors, and assigns (collectively, “Buyer Group”), covenants and agrees to indemnify and hold harmless the Seller and Seller’s members, shareholders, directors, managers, officers, employees, agents, affiliates, successors, and assigns (collectively, “Seller Group”), from any and all costs, expenses, losses, damages and liabilities incurred or suffered, directly or indirectly, by any member of the Seller Group (including, without limitation, reasonable legal fees and costs) resulting from or attributable to (a) the breach of, or misstatement in, any one or more of the representations, warranties, obligations or covenants of any member of the Buyer Group made in or pursuant to the Agreement; (b) the failure by Buyer to pay any and all shipping costs, applicable taxes, customs, duties, tariffs, and the like arising from the transactions set forth in this the Agreement, (c) any act or omission of Buyer Group, or (d) ownership or operation of the Goods by any member of the Buyer Group.
Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate any outstanding POs or all outstanding PO(s) and these Terms with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under the Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Waiver. No waiver by Seller of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, Buyer shall be entitled to give notice in writing to Seller to terminate the Agreement.
Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under the Agreement.
Relationship of the Parties; No Third-Party Beneficiaries. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. The 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.
Governing Law; Submission to Jurisdiction. All matters arising out of or relating to the Agreement is governed by and construed in accordance with the internal laws of the State of Texas without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Texas. Any legal suit, action or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Texas in each case located in the City of Austin and County of Travis, County and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
Notices. All notices, request, 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 PO or 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), or certified or registered mail (in each case, return receipt requested, postage prepaid); provided, however, that routine communication(s) or correspondence between the parties may be effectuated by email between each party’s designated contact person. Except as otherwise provided in the 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.
Severability; Survival. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement.
Amendments. No amendment to, or rescission, termination, cancellation or discharge of any Purchase Order or these Terms is effective unless it is in writing, identified as an amendment to, or rescission, termination, cancellation or discharge of the applicable Purchase Order or these Terms and signed by an authorized representative of each party.
Counterparts; Electronic Signatures. Each Purchase Order and these Terms, and all other agreements or instruments entered into in connection with each Purchase Order and these Terms, and any amendments, hereto or thereto, may be executed simultaneously in any number of counterparts. Each counterpart shall be deemed to be an original, and all such counterparts shall constitute one and the same instrument. Delivery of an image of a manually executed signature page to a Purchase Order and these Terms transmitted by electronic format (including, without limitation, “pdf”, “tif” or “jpg”) and other electronic signatures (including, without limitation, DocuSign, HelloSign, and AdobeSign) shall constitute, and shall be as effective as delivery of a manually executed counterpart of such Purchase Order and these Terms. The use of electronic signatures and electronic records (including, without limitation, any contract or other record created, generated, sent, communicated, received, or stored by electronic means) shall be of the same legal effect, validity and enforceability as a manually executed signature or use of a paper-based record-keeping system to the fullest extent permitted by applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, and any other applicable law, including, without limitation, any state law based on the Uniform Electronic Transactions Act. No party hereto or to any such Purchase Order or these Terms or instrument shall raise the use of electronic signature or electronic delivery to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use of electronic delivery as a defense to the formation of a contract and each such party forever waives any such defense, except to the extent such defense related to lack of authenticity.

[END OF PURCHASE ORDER TERMS AND CONDITIONS]

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PURCHASE ORDER TERMS AND CONDITIONS – REV. JANUARY 2024

ODYSSEY MINING LLC