Turning Star

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filler@godaddy.com

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Manufacturer & applicator of fire retardants since 1998

Terms and Conditions

The following terms and conditions apply to all testing, treatment, and cleaning projects.

1. Conflicting Provisions

Seller’s terms and conditions stated in this document (“Terms and Conditions”) are the exclusive contract between Buyer and Seller. There are no terms, understandings, or agreements, other than those stated herein, notwithstanding any prior or subsequent purchase order or similar document from Buyer. Buyer, by either providing materials for treatment (services) or testing, taking delivery of all or any of the products, shall be conclusively deemed to have accepted and assented to Seller’s Terms and Conditions. If any provisions of Buyer’s purchase order or other writings are different from or are otherwise in
conflict with these Terms and Conditions, these Terms and Conditions shall govern and the terms contained in Buyer’s purchase order or other writings are expressly rejected by Seller.

2. Purchase Price and Payment

A. The purchase price for all goods or services shown on the quote, estimate, sales order, or invoice excludes sales, use, occupation, license, excise and other taxes (unless expressly stated) in respect of manufacture, sale, storage, consumption, delivery, materials or items treatment, or materials or items testing, all of which shall be paid by the Buyer. The purchase price for all goods and services is payable in lawful money of the United States.

B. In the event Buyer fails to pay for any goods or services when such payment becomes due, Seller may at its discretion take one or more of the following steps: (i) charge a one-time late payment fee of 0.5% of the purchase price, (ii) charge interest of 1.5% per month, or (iii) terminate or suspend future deliveries of goods or services hereunder. In the event Buyer’s financial worthiness becomes unsatisfactory to Seller, in its sole opinion, Seller may require Buyer to make cash payments or provide other security for payment before future goods or services are provided to purchaser. In the event a bankruptcy proceeding is brought by or against the Buyer, the Seller may, in its sole discretion, terminate or suspend any order or delivery.

C. All legal fees, charges and costs incurred in connection with collecting the purchase price due to non-payment or late payment by Buyer will be the responsibility of the Buyer.

3. Delivery of Products

A. Title and risk of loss for Products transfer to Buyer when Products are loaded onto the truck that transports the Products to the Buyer at Seller’s shipping point, unless Products are shipped in Seller’s vehicles in which case title and risk of loss transfer to Buyer when the vehicle first enters Buyer’s property.

B. Any claim for non-delivery, shortage or non-conformity of Products must be made in writing to Seller within 30 days after actual or scheduled receipt of the Product. A claim not reasonably discoverable within such 30-day period (including claims discoverable only in processing, further use or resale) must be made to Seller in writing and received by Seller within 90 days after Buyer’s receipt of the Products, the expiration of which shall be deemed an absolute and unconditional waiver by Buyer of such claim. Products may not be returned without Seller’s permission and transportation for return will not be paid by Seller unless authorized in advance.

4. Warranty

A. Service: Seller warrants that services provided by Seller will be consistent with Seller’s published standard specifications and standard practices.

B. Treatment and testing. Seller warrants that the materials received from Buyer for flame retardant treatment will meet fire testing requirements as listed in the Purchasing Agreement, Estimate, Quote, or Proposal, and will be accompanied by a Certificate. If Buyer requests an in-house laboratory test for said material, Buyer will provide the appropriate amount of additional material for testing, as required for destructive fire testing.

C. Products. Seller warrants that manufactured products (the “Products”) meet Seller’s published specifications for the products at the time of delivery.

D. SELLER MAKES NO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER EXPRESS OR IMPLIED WARRANTY AND THE ABOVE WARANTIES ARE IN LIEU OF, AND EXCLUDE, ALL OTHER WARRANTIES. Buyer assumes all risk and liability resulting from the use of the products delivered hereunder, whether used singly or in combination with any other products. Buyer has the responsibility to inspect products and ensure that they are received in good order, and in proper condition.

E. Seller’s liability for any defective or negligent service is limited to Seller performing the services again, refunding an amount not to exceed the amount paid for the service, or, if the services were provided free of charge, paying an amount not to exceed the amount paid for the Products to which the services relate. Seller’s liability for nonconforming Products is exclusively limited, at Seller’s discretion, to replacement of the defective Products or refund of the purchase price of such Products.

5. Limitations of Liability

A. Service Treatment. Materials provided by Buyer to Seller for flame retardant treatment (treatment), for testing or for other temporary purposes are not insured by Seller while in Seller’s possession or in transit to the Seller. Seller is not liable for any subsequent or latent defects to the Buyer’s material, whether change in hand, color, texture, or other visual or subliminal defects which may become apparent over time. The flame-retardant treatment may react with certain dyes or finishes, resulting in apparent changes, which reveal defects of the material processing, dyes or finishes.

B. IN NO EVENT WILL SELLER BE LIABLE FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL, INDIRECT, EXEMPLARY OR PUNITIVE DAMAGES FROM ANY CAUSE OR FOR ANY REASON WHATSOEVER, IRRESPECTIVE OF WHETHER THE CLAIM ARISES FROM ACTUAL OR ALLEGED BREACH OF WARRANTY, INDEMNIFICATION, BREACH OF CONTRACT, PRODUCT LIABILITY, CONTRIBUTION OR ANY LEGAL THEORY AND IN NO EVENT WILL SELLER BE LIABLE FOR LOST PROFITS, COSTS OR LOSSES NOT ASSOCIATED WITH DIRECT PHYSICAL DAMAGE TO PROPERTY FOR ANY CLAIMS MADE UNDER OR RELATED TO THE SALE OF PRODUCTS OR SERVICES TO BUYER. IN NO EVENT SHALL SELLER’S LIABILITY EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES THAT ARE THE SUBJECT OF ANY CLAIMS MADE BY BUYER.

6. Insurance

To receive a Certificate of Insurance for Seller’s General Liability, Pollution, Property, Workers’ Compensation, or Auto insurance, contact the Seller’s office. Purchaser’s materials are not insured by Seller (see above 5A.) while in Seller’s possession.

7. Trademarks

“Turning Star”, “Flamexx”, “Flame Guardian” and the “Turning Star logo” are registered trademarks owned by the Seller. Product trade names as manufactured by the Seller are claimed marks of the Seller. The use of any Turning Star trademark or claim mark without Seller’s express prior consent is strictly prohibited.

8. Recognition and Credit for Services

It is customary in the Entertainment Industry to provide vendors’ and suppliers’ names in a theatrical, film, video, or televised program. Productions that use Seller’s flame retardant or flame retardant treatment or testing services may list Seller in the program credits. Examples are: Flame retardant services by Turning Star; Flame retardant treatment by Turning Star; Costume flame treatment: Turning Star; Fire retardant testing provided by Turning Star.

9. Indemnity

To the fullest extent permitted by law, Seller agrees to defend, indemnify and hold Buyer, its officers, directors, agents, and employees harmless from all claims, demands, actions and causes of action relating to personal injury or property damage to third parties, including reasonable attorney’s fees and actual costs ("Claims") incurred as a result and to the extent of Seller’s negligence. To the fullest extent permitted by law, Buyer agrees to defend, indemnify and hold Seller, its officers, directors, agents, and employees harmless from Claims as a result and to the extent of Buyer’s negligence or arising after delivery of the Products to Buyer.

10. Force Majeure

Seller is not liable for nonperformance or delay in performance caused by circumstances beyond Seller’s control ("Force Majeure Event"). A Force Majeure Event includes, without limitation, (a) acts of God, (b) war, riots, fire, explosions, floods, strikes, lockouts, injunctions, accidents, short supply of raw materials or compounds, unforeseen shutdown of major sources of supply, breakage of machinery or apparatus, or national emergency, (c) Seller’s inability to obtain at prices Seller deems in its discretion to be commercially reasonable, fuel, power, raw materials, labor, containers or transportation facilities, (d) the occurrence of any unforeseeable contingency making performance impracticable, or (e) compliance in good faith with any applicable governmental statute, regulation, or order. The delivery schedule of any purchase order or delivery agreement shall be extended by the time period of the Force Majeure Event, if the Force Majeure Event lasts not more than 180 days, and such purchase order or delivery agreement may be cancelled without liability by Seller, if the Force Majeure Event lasts more than 180 days.

11. Buyer’s Collaboration

Buyer agrees that Products will be used, handled, stored, transported and disposed of in such a manner as is necessary for the safety and protection of persons, property and the environment, and in accordance with the Seller’s recommendations and applicable laws and regulations. Buyer further agrees to deliver the most recent edition of Product literature, including SDSs, to its employees and customers and to maintain a written record of such deliveries. Buyer shall only sell to those who can handle, use, store, transport and dispose of the Products safely.

12. Governing Law and Dispute Resolution

A. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW JERSEY WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES THEREOF THAT WOULD RESULT IN THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION.

B. The parties will submit any dispute related to this Agreement to arbitration in New York, NY, before one arbitrator under the American Arbitration Association’s Commercial Arbitration Rules. A party may seek interim relief from any court having jurisdiction without waiving any remedy under this Agreement. The arbitrator may not award punitive damages or other damages not measured by actual damages, or limit, expand or otherwise modify the terms of this Agreement. A party may enter a judgment on an award in any court having jurisdiction. The prevailing party is entitled to an award of reasonable attorney fees.