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The Industrial Laboratories Company, Inc. (“Company”) will provide to the Client (“Client”) the analytical services described in letter to which this document is an exhibit (the “Services”) subject to the following. For the purposes hereof, these terms and conditions and the letter to which they are attached shall be collectively referred to as the “Terms and Conditions”.

1.     Services and Fees. Company will provide the Services as requested by Client upon these Terms and Conditions. Other services are available to the Client upon request and for an additional charge to be agreed upon before work commences. The price list for the Services is available upon request. Company, in its sole discretion, may change the fees it charges for the Services at any time without notice.

2.     Payment Terms. Client shall tender payment for the Services or provide a deposit at the time it requests the Services, unless the Company has previously granted to Client credit terms. All credit card information shall remain on file with the Company to secure payment.

3.     Credit. Client may apply to Company for credit using such forms as Company may require; Company may grant or withhold credit in its sole discretion. If credit is granted, all Company invoices will be due within 10 days of receipt. If Company elects not offer credit terms, Client authorizes Company to bill Client’s credit card or to apply any deposit for all amounts then due. Performance of the Services, at all times, is subject to the Company’s continuing credit approval of Client. If Client fails timely to tender any payment to Company, Company may bill any Client credit card on file or apply any Client funds then on deposit; Company may also require advance payment or other security prior to agreeing to perform additional Services.

1.     Client Confidentiality. Client shall designate one or more individuals as contact(s) with whom the Company will communicate with respect to the Services and the Company’s analysis of the results of the Services (the “Analysis”). Client’s contact(s) shall have authority to provide instructions for Analysis, receive information, data and information and purchase Services. Company will not discuss any Services or Analysis with anyone other than Client’s designated contacts. Company shall use reasonable efforts to keep confidential the identity of Client, the Services provided and the associated Analyses, provided however, Company shall be permitted to disclosure such information in response to a subpoena or governmental inquiry or as may be required by law.

2.     Use of Results. No party, other than the Client, is permitted to use or rely on the
Analysis, or other materials provided by the Company in connection with the Services, without
the prior written consent of the Company, in its sole discretion.

4.      Warranty. Company warrants to Client that the Services and the Analysis shall be of the Company’s standard quality. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED BY LAW. The Company makes no other warranty of any kind, express or implied, including, without limitation, the implied warranty of merchantability, fitness for a particular purpose.

5.     Compliance with Laws. Company shall perform the Services furnished in compliance with applicable federal and state laws and regulations.

6.     Limitation of Liability. Client assumes all risk and liability resulting from the use of the Services and the Analysis, whether used singly or in combination with other Services. Company is not responsible for variation in results and reproducibility. Client understands and assumes all risk that sample results may not be successful or possible given any or all techniques utilized. Within ten (10) days after receipt, Client agrees to examine the Analysis, and to provide written notice to Company, including adequate documentation, of each exception noted. In the absence of such timely delivered notice, Client hereby waives all claims it has or may have with respect to the Analysis. In addition, Client’s use of the Analysis, or any part thereof, in any manner shall be deemed Client’s unqualified acceptance of the Analysis. Client’s exclusive remedy for any breach by Company shall be limited to its actual damages. Company’s total liability will not exceed the invoice price for such Services. Company shall not be liable for any indirect, consequential or punitive damages suffered by Client in any way resulting from the Services or the Analysis, including but not limited to, lost profits. Company assumes no liability to third parties in connection with the sale, purchase, delivery, or performance of the Services or the use of the Analysis. Any action brought by Client must be commenced within one (1) year after delivery of the Analysis, notwithstanding any statutory period of limitation to the contrary.

7.     Non-payment; Attorneys’ Fees. All amounts due to the Company which are not timely received shall accrue interest at one and one-half percent per month from the date payment was due until the date payment is received. In addition, Client shall also pay all collection expenses Company incurs, including reasonable attorneys’ fees and costs.

8.     Additional or Contrary Terms. The terms and conditions of this Agreement shall apply to each order for the Services issued by Client (oral and written). Any terms or conditions appearing on the face or reverse side of any purchase order, acknowledgment, invoice or confirmation that are different from, or in addition to, those required under these Terms and Conditions shall not be binding, even if signed and returned, unless Company expressly agrees in a separate writing.

9.     Miscellaneous. The Company’s logo, marketing materials, and any other trademarks or other rights in names, marks, and logos are, and shall remain, the exclusive property of the Company. Client shall not use such Company intellectual property for any purpose. Client may not assign any of its rights and obligations hereunder, without the prior written consent of the Company, in its sole discretion. These terms and conditions shall be construed in accordance with the laws of Colorado, without regard to its conflict of laws principles. These terms and conditions are subject to change at any time by the Company without the prior written notice to Client. The terms and conditions in effect at the time Client places a request for the Services shall govern the parties’ respective obligations for the matters set forth herein.

10.     Entire Agreement; No Waiver. These terms and conditions, including the letter to which they are attached, constitute the entire agreement between the Company and Client pertaining to the subject matter hereof and supersede all negotiations, preliminary agreements, and all other prior or contemporaneous discussions and understandings, including all oral agreements. Client acknowledges that it relies exclusively on these terms and conditions and not on any oral or written representations or undertakings made by, or on behalf of, the Company. The provisions of these terms and conditions are in addition to, and not a limitation or waiver of, any legal or equitable rights or remedies of Company.

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