ELEMENT ONE, INC. TERMS OF SALE
Version: E1v01 Date: 9/11/2024

1. ACCEPTANCE.

All offers, orders, order confirmations, sales, invoices, transactions, and agreements are subject to final acceptance by Element One, Inc. Element One, Inc. accepts Customer’s orders only on the condition that Customer agrees to accept the terms and conditions of sale set forth herein and to waive any terms and conditions contained in any order form, confirmation order, or any other writing of Customer, whether previously or hereafter delivered, which either add to, differ from, modify, conflict with, or are otherwise inconsistent with any term or condition herein.

Furthermore, any additional or different terms in the Customer’s forms are hereby deemed to be material alterations, and notice of objection and rejection to them is hereby given. This agreement supersedes any inconsistent terms and conditions in any documentation submitted by Customer to Element One, Inc. In case of conflict between the terms of this agreement and those of a mutually signed agreement, the terms of the latter shall prevail. Customer’s failure to object in writing to the terms and conditions set forth herein prior to Customer’s acceptance of the products ordered, or ten (10) days after delivery hereof to Customer, will constitute agreement by Customer to these terms and conditions of sale.

2. CUSTOMER FURNISHED DOCUMENTS AND HARDWARE.

A quotation from Element One, Inc. is based on information, specifications, drawings, designs, artwork, tapes, tooling, and fixtures, if any (collectively “Documents and Hardware”), delivered to Element One, Inc. prior to the date of the quotation. In the event that Element One, Inc. determines at any time after the date of the quotation that any part of the Documents and Hardware is incomplete, inaccurate, or insufficient in detail, it will notify Customer of that determination, state the problem as identified, and require corrective materials from Customer.

Element One, Inc. may, as a result of any problem identified, alter prices, delivery schedules, or other terms as it determines appropriate and without Customer’s consent. Customer shall not make changes to any part of Documents and Hardware after issuance of this quotation by Element One, Inc., unless Customer is responding to a problem notice from Element One, Inc. or Element One, Inc. accepts in writing. This written acceptance will not be unreasonably withheld, but might result in alteration of prices, delivery schedules, or other terms as Element One, Inc. determines appropriate.

3. SHIPMENT POLICY.

A. Delivery. Production delivery schedules quoted are based on lead times in effect on the date of a quotation. Element One, Inc.’s actual delivery commitment will be based on lead times in effect on the date of order acceptance. Element One, Inc. will not be responsible for any delays in delivery due to problems identified as described in Section 2 or due to circumstances beyond Element One, Inc.’s control, including material shortages or labor disputes.

B. Quantity. Element One, Inc. reserves the right to ship plus or minus 5% of the quantity of products ordered. Per unit prices within these parameters will remain unchanged, and deliveries within these parameters will be deemed performance in full of Element One, Inc.’s obligation to deliver the quantity of products subject to an accepted order. This does not apply to engineering prototypes or pre-production quantities.

C. Shipping Costs and Terms/Risk of Loss. All shipments will be DPU (Delivery in Place Unloaded) INCOTERM for online orders, unless otherwise agreed upon between Element One, Inc. and Customer in writing. Element One, Inc. shall deliver the purchased products to the carrier nominated by Customer, and, in the absence of timely instructions from Customer as to shipment, Element One, Inc. may select the carrier and arrange shipment of the products to the address designated by Customer. Customer shall reimburse Element One, Inc. for any shipping costs it incurs. Risk of loss passes to Customer upon delivery to the carrier, regardless of notice to Customer. Element One, Inc. assumes no responsibility for insuring shipments unless specifically requested in writing by Customer, in which case Customer will be invoiced for the cost of insurance. Whenever Customer is a U.S. company, the sale is a domestic sale, and, in the event of any subsequent export, Customer shall be solely responsible for U.S. export clearance and all export formalities, including, but not limited to, compliance with Section 23, notwithstanding any other terms of sale.

4. ACCEPTANCE/REJECTION BY CUSTOMER.

All claims of Customer that products delivered do not conform to the accepted order will be handled as a claim for breach of warranty, and the rights and remedies of Customer will be limited to those available for breach of warranty as described in Section 6. Claims relating to any act or omission of Element One, Inc. regarding a particular shipment are effective only if Element One, Inc. has been notified by Customer in writing of the act or omission within thirty (30) days of receipt of said shipment of goods hereunder, describing it in reasonable detail. If such notice is given on a timely basis and the claim is valid, Element One, Inc. will have a reasonable opportunity to cure.

5. PURCHASE ORDER CHANGES.

Customer shall notify Element One, Inc. in writing of any purchase order adjustments, such as engineering changes, hold orders, partial releases, quantity modifications, and delivery schedule changes. As a result of such changes, Element One, Inc. may adjust the delivery schedule and prices.

6. WARRANTY.

Unless a different warranty period is stated in a specification or other documentation provided by Element One, Inc., Element One, Inc. represents and warrants, for a period of six (6) months from the date of delivery, that products sold to the Customer hereunder will be free of defects in workmanship and material. Such warranty will apply only if the Customer has notified Element One, Inc. in writing of these defects, describing them in reasonable detail, within two (2) weeks after a defect is discovered or should have been reasonably discovered by the Customer.

This warranty does not extend:

i) to products which have been subject to misuse, neglect, or accident;

ii) to products which have been altered or repaired by personnel other than personnel employed by Element One, Inc. or employed by Customer and trained and certified by Element One, Inc.;

iii) to damage caused, directly or indirectly, by operation or maintenance performed by any untrained individuals; or

iv) to products installed incorrectly or not following written or video instructions available with the product and online.

7. DISCLAIMER OF WARRANTY.

THE WARRANTY SET FORTH IN SECTION 6 HEREOF IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY AND ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED AND EXCLUDED.

8. LIMITATION OF REMEDY.

A. In the event of a breach of the warranty set forth in Section 6 herein, the exclusive remedy of Customer and the exclusive obligation of Element One, Inc. will be as Element One, Inc. elects: to repair or replace the defective product within a reasonable period of time. Return of products to Element One, Inc. is allowed only after a Return Material Authorization Number (RMA) has been issued by Element One, Inc. Such authorization will be issued after Element One, Inc. receives the notice described in Section 6. No shipments of returned products will be accepted without an RMA number. Repair or replacement of the products returned to Element One, Inc. as specified above will occur only after Element One, Inc. has received the returned product, reviewed the reasons for return, and determined whether the returned goods were defective. Surface transportation will be used for transportation of returned products unless Element One, Inc. authorizes the use of some other mode of transportation. Customer will bear all expenses and all risk of loss in connection with the return of any products hereunder, provided that Customer will be reimbursed by Element One, Inc. for the cost of transportation to Element One, Inc. of those products returned which Element One, Inc. determines to be defective.

B. IN NO EVENT WILL ELEMENT ONE, INC. BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUES OR PROFITS, LOSS OF USE, COST OF REPLACEMENT, COST OF CAPITAL AND CLAIMS OF CUSTOMERS, INTEREST CHARGES, OR ANY INCREASED COSTS) WHICH ARISE IN CONNECTION WITH THIS AGREEMENT.

C. With respect to Element One, Inc.’s non-compliance with any other obligation hereunder, the sole and exclusive remedy of the Customer and the sole and exclusive obligation of Element One, Inc. will be as Element One, Inc. in its discretion, will elect to cure such non-compliance within a reasonable period of time or, if Element One, Inc. fails to cure such non-compliance, Customer’s recovery of any equitable amount will not exceed such charges as were previously paid to Element One, Inc. by Customer hereunder.

D. Customer’s remedies expressly set forth herein are Customer’s exclusive remedies in connection herewith. Customer waives all other remedies, statutory or otherwise, including, without limitation, the remedies of specific performance or replevin. Any action brought by Customer in connection with Element One, Inc.’s performance hereunder must be commenced within one year after such cause of action occurs or will be deemed waived.

9. CANCELLATIONS AND CHANGES.

Every order from Customer to Element One, Inc. that is accepted by Element One, Inc. is considered final and irrevocable. Customer can only validly cancel an order, or change any part thereof, if so accepted in writing by Element One, Inc. Customer acknowledges that unless otherwise indicated in writing by Element One, Inc., the products will be produced to Customer’s specifications and will not be resalable to any other customer. If Element One, Inc. accepts cancellation of, or change to, an order, Customer will be charged by Element One, Inc. to compensate Element One, Inc. for costs incurred for materials not readily usable with respect to other customers, work actually performed, plus profit.

10. DISCONTINUATION.

Element One, Inc., in its sole discretion, may discontinue the marketing, production, and distribution of any product at any time during the term of this agreement, provided that Element One, Inc. gives thirty (30) days prior written notice to Customer. Element One, Inc. has no obligation to continue the production of any products, except as per orders accepted and confirmed by Element One, Inc. before the discontinuation takes effect. Element One, Inc. may modify, replace, and improve products, at Element One, Inc.’s discretion, without prior notice and/or liability, but shall give thirty (30) days prior written notice to Customer of a price adjustment resulting from any such modification, replacement, or improvement.

11. PAYMENT TERMS.

A. All invoices for products shipped, whether partial or in full, and for tooling, special testing, or other goods or services provided to Customer, and cancellation charges will be due and payable according to the payment terms granted by Element One, Inc.

B. Any amount not paid when due will bear a service charge, commencing thirty (30) days after the invoice date, at the rate of one and one-half percent (1.5%) per month or the maximum interest rate permitted by applicable law, whichever is greater.

C. Notwithstanding Paragraph A, if Element One, Inc. determines that the financial condition of Customer does not justify shipment to Customer, Element One, Inc. may cancel the Customer’s order(s), withhold further deliveries, or require full or partial payment in advance of shipment, as well as full payment of any balances on said account, before Element One, Inc. authorizes any additional shipments. All costs and expenses incurred as a result of non-payment, including, but not limited to, collection costs, interest, attorney’s fees, and costs shall be paid by Customer.

12. TITLE: SECURITY INTEREST.

Title to the products sold hereunder will remain with Element One, Inc. and will not shift to Customer until Customer has performed all of Customer’s obligations hereunder. To secure such performance by Customer, Element One, Inc. hereby retains, and Customer agrees to grant to Element One, Inc. a security interest in such products and in all accessions thereto, replacements thereof, and proceeds therefrom.

13. INDEMNIFICATION AND PATENTS AND LICENSES.

Customer agrees to indemnify and hold Element One, Inc. harmless from and against all claims, damages, losses, and expenses, including attorneys’ fees and costs, in case it is necessary to file or defend an action arising out of:

(i) Customer’s use of the products ordered, including but not limited to liabilities arising from bodily injury, including death, or property damage to any person;

(ii) The alleged infringement of any patent or license through the use or sale by Customer of a manufactured good or any assembly, circuit, combination, method, or process in which Customer uses any of the products sold hereunder;

(iii) The alleged infringement of any patent or license through the manufacture or sale by Element One, Inc. of the products sold hereunder if Element One, Inc. manufactures the products according to Customer’s intellectual property or specifications, or designs and manufactures the products to meet Customer’s requirements, or uses any equipment, material, parts, or machinery furnished by Customer to aid or enable Element One, Inc. to manufacture the products;

(iv) The alleged infringement of any trademark or violation of any law resulting from the marking, labeling, or branding, either by Customer or by Element One, Inc. at the request of Customer, of the products sold hereunder;

(v) Customer’s breach of these terms and conditions, including but not limited to the requirements of Sections 22 and 23; or

(vi) Claims of governmental authorities.

14. EFFECTIVE DATE AND TERM.

This agreement is effective for a period of three (3) years as of the Effective Date, unless terminated sooner in accordance with Section 15 or as otherwise provided in this agreement.

15. TERMINATION.

A. Either party may, without prejudice to any other right or remedy, terminate this agreement by giving written notice to the other party with immediate effect, if any of the following events occur:

i. If either party fails to make any payment to the other when due under this agreement and such failure continues for more than thirty (30) days after receipt of a written notice specifying the default;

ii. If either party fails to perform any other provision of this agreement which failure remains uncorrected for more than thirty (30) days after receipt of a written notice specifying the default;

iii. If either party files a petition in bankruptcy, or a petition in bankruptcy is filed against it, or either party becomes insolvent, bankrupt, or makes a general assignment for the benefit of creditors, or goes into liquidation or receivership;

iv. If either party ceases or threatens to cease to carry on business or dispose of the whole or any substantial part of its undertaking or its assets;

v. If control of Customer is acquired by an entity not in control on the Effective Date;

B. Upon any breach by the Customer, Element One, Inc. may declare all outstanding indebtedness of the Customer immediately due and payable, and interest thereupon shall accrue from the day after the payment is due at the maximum rate allowable by law. The payment due date is the payment schedule due date for overdue sums owed and the payment due date for other outstanding indebtedness is the date that such sums are declared immediately due and payable. Termination, for any reason whatsoever, will not relieve the Customer of its obligation to settle any unpaid balances due to Element One, Inc. under this agreement, but shall relieve Element One, Inc. of any obligation to make additional deliveries.

C. In the event of Customer’s default under this agreement, Element One, Inc. and any of its parents, subsidiaries, or affiliates, may offset damages arising therefrom, including, without limitation, withholding payment, delivery, or acceptance of product(s), material(s), or service(s), relating to any agreement or transaction with Customer, its parents, subsidiaries, or affiliates.

D. Upon termination of this agreement, Element One, Inc. may, in its discretion, cancel all unfulfilled orders.

E. In the event of termination, Customer shall promptly return to Element One, Inc. all literature, drawings, designs, data, samples, materials, and any and all other property of Element One, Inc. Upon termination, Customer shall also immediately cease use of Element One, Inc.’s property.

16. INTELLECTUAL PROPERTY RIGHTS.

Customer shall not acquire any rights in respect of the intellectual property rights of Element One, Inc., or its affiliated companies, used in connection with the products or services, and all such rights and related goodwill are, and will remain, vested in the party that is the owner of the intellectual property right.

A. Buyer acknowledges and agrees that, as between Buyer and Seller, Seller owns and retains all right, title, and interest in and to all intellectual property related to the Goods and Services, including any patents, copyrights, trade secrets, trademarks, and other intellectual property rights in and to the Goods and Services.

B. Buyer agrees not to claim any rights in respect of the intellectual property rights of Seller, or its agents or affiliates, used in connection with the products or services, and all such rights and related goodwill are, and will remain, vested in the Seller.

C. Buyer agrees not to participate in as a party or financially support any party to a proceeding to challenge the scope of any of the Seller’s patent claims, trademarks, or copyrights.

D. Buyer agrees not to reverse engineer, decompose, copy, manufacture, distribute, or sublicense the Goods.

E. Buyer agrees not to cause, induce, or permit noncompliance with the terms and conditions of use outlined herein by its employees, agents, assigns, or by third parties.

17. CONFIDENTIALITY

Customer hereby acknowledges that in the course of performance of this agreement with Element One, Inc., Customer might come into the possession of Element One, Inc.’s confidential and proprietary information. Confidential information will remain the sole and exclusive property of Element One, Inc. and will not be used for any purpose other than the discharge of Customer’s obligations hereunder, except with Element One, Inc.’s prior written consent. Customer shall not use Element One, Inc.’s confidential information after termination of the agreement or completion of the transaction.

Upon the expiration or termination of this Agreement, Customer shall immediately and at its own cost and expense, return all documents containing confidential information without keeping copies of it, destroy any copy of any analyses, memoranda, report, or other documents derived from confidential information, and securely expunge all confidential information from any computer, word processor, or other device containing confidential information and belonging to Element One, Inc.

18. PRICES.

All prices quoted by Element One, Inc. will be subject to change without notice; however, subject to the remaining provisions of this agreement, prices quoted for a specified quantity of products which are ordered by Customer within the date of the price quotation, and for delivery during the scheduled delivery period stated in the price quotation, will be firm.

19. FORCE MAJEURE.

Any delays in or failure by either party in the performance of any obligations hereunder shall be excused if and to the extent such failures or delays are proximately caused by occurrences beyond a party’s reasonable control, including, but not limited to, Acts of God, epidemics or pandemics (including COVID-19), acts of any government body or agency, strikes or other labor disturbances, cyber-attacks, acts of terrorism, war (whether declared or not), fire, inability to secure transportation, or any other cause which cannot be reasonably controlled by such party.

If the force majeure event has caused or will cause a delay in a party’s performance exceeding thirty (30) days, then either party may unilaterally terminate this Agreement by providing five (5) days’ written notice to the other party.

20. CERTIFICATE OF COMPLIANCE.

Element One, Inc. will provide, if requested in writing by Customer, a Certificate of Compliance certifying that applicable specifications for the shipping lot have been met, it being understood, however, that this Certificate does not expand the scope of the warranty set forth in Section 6 or the remedies available to Customer as set forth in Section 8.

21. COMPLIANCE WITH LAWS.

Customer warrants that it has and shall continue, in performing hereunder, to comply with all applicable laws, including, but not limited to, the Magnuson-Moss Consumer Warranty Act; The Clean Air Act, 42 U.S.C. § 7401 et seq.; The Clean Water Act, 33 U.S.C. § 1251 et seq.; The Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq.; The Toxic Substance Control Act, 15 U.S.C. § 2601 et seq.; The Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; The Safe Drinking Water Act, 21 U.S.C. § 349 et seq.; The National Environmental Policy Act, 42 U.S.C. § 4321 et seq.; Occupational Safety and Health Act, 29 U.S.C. § 651 et seq.; together with any amendments thereto and regulations promulgated thereunder; federal and state automotive and other safety requirements; the Fair Labor Standards Act of 1938; and (if the applicable purchase order is made with reference to a government contract) the applicable provisions of the Armed Services Procurement Regulations, the Federal Procurement Regulations, and Executive Order 11246 of September, 1965.

Customer, its affiliates, and subcontractors shall comply with Element One, Inc.’s Group Basic Policy on Human Rights that can be found at the Element One, Inc. website under Sustainability. Any costs incurred by Element One, Inc. as a result of Customer’s non-compliance may be charged back to the Customer. The remedies provided for in this section shall be in addition to any other remedies provided for herein or by law.

22. CONFLICT OF INTEREST.

A. Element One, Inc. is committed to conducting all dealings in a fair, ethical, and lawful manner. In addition to our employees, we expect our Customer, vendors, consultants, suppliers, and other business associates to support these values. Customer must avoid real or perceived conflicts of interest. Customer must not allow their personal interests to influence business decisions related to Element One, Inc.’s projects and assignments. Element One, Inc. expects Customer to exercise reasonable care and diligence to prevent any actions or conditions that may result in a conflict with Element One, Inc.’s interests, the appearance of a conflict of interest, or that may compromise the exercise of independent judgment during the execution of work for or on behalf of Element One, Inc.

B. A conflict of interest occurs when Customer’s duties or their position present an opportunity for personal gain, or when personal interests could influence professional judgment for doing what is in the best interest of Element One, Inc. A conflict of interest can arise if actions are taken or if there are interests that may make it difficult for Customer to perform Element One, Inc.-related work objectively and effectively. This includes, but is not limited to, providing or offering a Element One, Inc. employee something of value in return for getting Element One, Inc. work, or having an association or relationship that could affect impartiality in business decisions.

C. Friendships outside the course of business are inevitable and acceptable, but Customer should take care that any personal relationship is not used to influence the business judgment of the Element One, Inc. employee. If Customer’s employee is a family relation (spouse, parent, sibling, grandparent, child, grandchild, in-law, or same or opposite sex domestic partner) to that of a Element One, Inc. employee, or if Customer has any other relationship with an employee of Element One, Inc. that may represent a conflict of interest, Customer must disclose this fact to Element One, Inc. or ensure that the Element One, Inc. employee does so.

D. Customer must not employ or otherwise make payments to any employee of Element One, Inc. during the course of any transaction between the Customer and Element One, Inc. While engaged in Element One, Inc.-related work, Customer must not engage in any activity that creates a conflict of interest, or the appearance of a conflict of interest, with Element One, Inc. or in any way compromises the work that Customer is contracted to perform on behalf of Element One, Inc. Any potential or perceived conflicts must be promptly reported to Element One, Inc.’s business representative. Any agreement from Element One, Inc. that allows Customer to remain in a situation that could be perceived as a conflict must be in writing. Any questions about a conflict of interest should be raised with the Customer’s highest level business contact.

23. EXPORT COMPLIANCE

A. General. Customer acknowledges and agrees that products sold by Element One, Inc. may be subject to U.S. export regulations. Such regulations include, without limitation, the Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”), and the regulations and orders administered by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of Treasury (collectively and interchangeably referred to as “Export Control Regulations”). Customer agrees to comply with all Export Control Regulations in its receipt, shipment, use, transfer, resale, export, and re-export of Element One, Inc. products and in its handling of all technical information related to Element One, Inc. products.

B. Prohibited Countries and Persons. Without limiting the generality of the foregoing, Customer agrees that no products purchased from Element One, Inc. will be sold to, transferred to, exported to, or re-exported to Cuba, Iran, Sudan, Syria, North Korea, or any country subject to U.S. sanctions or embargo administered by OFAC. Customer represents and warrants that it is not on OFAC’s Specially Designated Nationals List, or the Entity List or Denied Persons List of the EAR (“Prohibited Persons”) and agrees that no products purchased from Element One, Inc. will be sold to, transferred to, exported to, or re-exported to any Prohibited Person.

C. Prohibited Uses. Further, without limitation, Customer agrees that the Element One, Inc. products purchased hereunder will not be used in connection with any of the following activities: (i) Research on or development, design, manufacture, construction, testing, or maintenance of any nuclear explosive device, nuclear reactor, facility for fabrication, conversion, processing, or storage of nuclear fuel, components thereof, or other similar activities; (ii) Design, development, production, stockpiling, or use of chemical or biological weapons; (iii) Design, development, production, or use of rocket systems including ballistic missile systems, space launch vehicles, sounding rockets, and unmanned air vehicles including cruise missile systems, target drones, and reconnaissance drones; (iv) Any activity related to maritime nuclear propulsion plants, their land prototypes, and facilities for their construction, support, or maintenance.

D. Customer Provided Technical Data. Customer represents and warrants that all specifications, drawings, designs, or technical information (“Technical Data”) it has provided or will provide to Element One, Inc. about any product or project, regardless of format or medium, are not controlled and do not require a license for export under U.S. Export Regulations. Customer acknowledges and agrees that Element One, Inc. will rely upon this general representation in managing its own export compliance obligations, unless Customer provides notice to Element One, Inc., in writing, that Technical Data provided by Customer are subject to specific restrictions on export under Export Control Regulations. In such written notice, Customer will specifically identify the Technical Data subject to restrictions and will advise of the following: (i) Whether the Technical Data provided is subject to the jurisdiction of the EAR or the ITAR; and (ii) The Export Commodity Classification Number, in the case of EAR-controlled Technical Data, or the United States Munitions List category, in the case of ITAR-controlled Technical Data.

24. GOVERNMENT CONTRACTS.

If the provision of goods and services by Element One, Inc. under accepted orders is subject to mandatory provisions of U.S. law concerning contracts or subcontracts with or for the benefit of the U.S. government, Customer shall so notify Element One, Inc. specifying the mandatory provisions of U.S. law which apply.

If compliance with such law(s) increases Element One, Inc.’s costs or liability, Element One, Inc. shall be entitled to adjust the price(s) accordingly, request separate payment of the additional costs, or terminate this agreement with Customer being responsible for all costs incurred by Element One, Inc.

25. GOVERNING LAW.

This agreement will be governed and construed in accordance with the laws of the State of Colorado, without application of any choice of law rules, conflict of laws principles, or the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods.

26. ARBITRATION.

All claims and disputes (including, but not limited to, third-party claims) arising out of or relating to this agreement will be settled by confidential and binding arbitration by the American Arbitration Association in accordance with its Commercial Arbitration Rules. The place of arbitration will be Denver, Colorado, and the arbitration will be conducted in English. Any decision or award as a result of any such arbitration proceeding must (a) be in writing, (b) provide an explanation for all conclusions of law and fact, and (c) include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration must be conducted by an arbitrator experienced in the subject matter of the dispute and include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.

27. VALIDITY OF PROVISIONS: SEVERABILITY.

The provisions hereof will be interpreted to be valid and enforceable under applicable law to the extent that such interpretation does not materially alter such provisions; provided, that if any such provision becomes invalid or unenforceable under applicable law, such provision will be stricken to the extent necessary and the remainder of such provision and the remainder of these General Terms and Conditions will continue in full force and effect.

28. NON-WAIVER OF RIGHTS.

No failure or delay by Element One, Inc. in exercising any right or remedy hereunder will operate as a waiver of or impair any such remedy. No single or partial exercise of any such right or remedy will preclude any other, or further exercise thereof, or the exercise of any other right or remedy hereunder or law. No waiver of any such right or remedy will be effective unless given in a signed written notice. No waiver of any right or remedy will be deemed a waiver of any other right or remedy. No term or provision thereof will be construed to limit in any manner the rights or remedies available to Element One, Inc. under the law or otherwise, but rather, are in addition to and cumulative of such other rights or remedies.

29. ENTIRE AGREEMENT: MODIFICATION.

Customer and Element One, Inc. agree that this agreement is the final expression of their agreement and is the complete and exclusive statement of the terms and conditions of their agreement, and supersedes all agreements, understandings, or discussions, whether oral or written, entered into prior to or contemporaneously herewith. This agreement may not be modified or amended except in writing and signed by Element One, Inc.