TUSK INDUSTRIAL TERMS & CONDITIONS

1. Applicability.

These Terms and Conditions (these “T&Cs”) govern the sale of the Goods by Tusk to Customer
These T&Cs shall prevail over any of – customers general terms and conditions of purchase regardless of whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of any of Customer’s terms and conditions and does not serve to modify or amend these T&Cs.

2. Delivery of Goods.

The Goods will be shipped within a reasonable time after the receipt of Customers purchase Tusk shall not be liable for any delays, loss, or damage in transit.
Unless otherwise agreed in writing by the parties, for shipments within the continental USA, Tusk shall ship the Goods FCA (per Incoterms 2020) from Tusk’s factory to the designated delivery location (the “Delivery Point”). For international shipments, Tusk shall ship the Goods Ex Works (per Incoterms 2020). The Goods shall be shipped using Tusk’s standard methods for packaging and shipping such Goods. Customers shall take delivery of the Goods within ten (10) days of Tusk’s written notice that the Goods have been shipped to the Delivery Point. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
Tusk may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customers Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of purchase order.
If for any reason Customer fails to accept delivery of any of the Goods on the date fixed pursuant to Tusk’s notice that the Goods have been delivered at the Delivery Point, or if Tusk is unable to deliver the Goods at the Delivery Point on such date because Customer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Customer ; (ii) the Goods shall be deemed to have been delivered; and (iii) Tusk, at its option, may store the Goods until Customer picks them up, whereupon Customer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Any and all data books, instructions, operating manuals, and specifications documents will be provided by Tusk in an electronic format free of charge. Bound versions may be provided at Customer’s request, subject to additional charges.
Sales terminology used without definition in this document shall have the meanings ascribed to those terms as defined in Incoterms 2020.

3. Non-Delivery.

The quantity of any installment of Goods as recorded by Tusk on dispatch from Tusk’s place of business is conclusive evidence of the quantity received by Customer on delivery unless Customer can provide conclusive evidence proving the contrary.
Tusk shall not be liable for any non-delivery of Goods (even if caused by Tusk’s negligence) unless Customer gives written notice to Tusk of the non-delivery within ten (10) days of the date when the Goods would in the ordinary course of events have been received.
Any liability of Tusk 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.

4. Title and Risk of Loss.

Title and risk of loss pass to Customer upon Tusk’s delivery to Delivery Point unless otherwise specified. As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Tusk a lien on and security interest in and to all of the right, title and interest of Customer 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. Customer agrees to perform all acts necessary to perfect and assure Tusk’s security interest granted hereunder.

5. Customer Acts or Omissions.

If Tusk’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, Tusk shall not be deemed in breach of its obligations under these terms or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.

6. Inspection and Rejection of Nonconforming Goods.

Customer shall inspect the Goods within ten (10) days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it promptly notifies Tusk in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Tusk. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Customer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
If Customer timely notifies Tusk of any Nonconforming Goods, Tusk 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 Customer in connection therewith. Customer shall ship, at its expense and risk of loss, any allegedly Nonconforming Goods to Tusk’s facility. If Tusk determines that the Goods are Nonconforming Goods, and exercises its option to replace Nonconforming Goods, Tusk shall, after receiving Customer’s shipment of Nonconforming Goods, ship to Customer at Tusk’s expense and risk of loss, the replaced Goods to the Delivery Point, and shall reimburse Customer for its return shipping costs.
Customer acknowledges and agrees that the remedies set forth in Section 6(b) of these T&Cs are Customer’s exclusive remedies for the delivery of Nonconforming Goods.
In no event shall Goods be considered Nonconforming for purposes hereof due to the Goods bearing a different, superseding, or new part number or version number for the specified part number, provided that the Goods in question are the same part as specified in Customer’s order

7. Changes.

Changes to Customer’s order shall be handled as follows:

Each party may at any time propose changes in the specifications of the Goods, delivery schedules, or scope of supply under these T&Cs (a “Change”). Tusk is not obligated to proceed with any Change until both parties agree upon such Change in a written Change Order describing the Change and the resulting changes in Price and other provisions, as the parties may mutually agree. A Change may also be caused by changes in Customer’s site-specific requirements or procedures, industry specifications, codes, standards or applicable laws or regulations.
Upon such Changes, the Price, delivery schedule and the other provisions of these T&Cs will be adjusted to reflect additional costs or obligations incurred by Tusk resulting from such Changes; provided, however, no adjustments will be made on account of a general change to Tusk’s manufacturing or repair facilities resulting solely from a change in applicable laws or regulations applicable to such facilities. Unless otherwise agreed by the parties in a Change Order, pricing for Tusk’s additional work resulting from a Change shall be at Tusk’s then-current time and material rates.
Notwithstanding the foregoing provisions of this Section 7, it shall not be considered a Change for purposes hereof solely due to Tusk’s delivery of Goods bearing a different, superseding or new part number or version number for the specified part number, provided that the Goods in question are substantially the same part as specified in Customer’s order.

8. Price.

Customer shall purchase the Goods from Tusk at the prices (the “Prices”) set forth in Tusk’s then current price lists, but subject to discounts as provided in the Agreement. Prices may be increased by Tusk before delivery of the Goods, due to Customer’s order modifications, changes to specifications, or delays caused by Customer. In such event, these T&Cs shall be construed as if the increased prices were originally inserted herein, and Customer shall be billed by Tusk on the basis of such increased prices.
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 Customer shall be responsible for all such charges, costs and taxes; provided that, Customer shall not be responsible for any taxes imposed on, or with respect to, Tusk’s income, revenues, gross receipts, personnel or real or personal property or other assets. Further, Customer shall pay to Tusk, in addition to Customer’s purchase price for the Goods, the amount of all sales, use, privilege, occupation, excise or other taxes, federal, state, local or foreign, which Tusk is required to pay in connection with furnishing the Goods to Customer.

9. Payment Terms for Credit Sales.

Customer shall pay all invoiced amounts due to Tusk within thirty (30) days from the date of Tusk’s invoice. Unless otherwise provided in Tusk’s quotation, Customer shall make all payments hereunder in US dollars.
Customer shall pay interest on all delinquent payments at the lesser of the rate of one and five-tenths percent (1.5%) per month or the highest rate permissible under applicable law, calculated daily and compounded Customer shall reimburse Tusk for all costs incurred in collecting any delinquent payments, including, without limitation, reasonable attorneys’ fees. In addition to all other remedies available under these T&Cs or at law (which Tusk does not waive by the exercise of any rights hereunder), Tusk shall be entitled to suspend the delivery of any Goods if Customer fails to pay any amounts when due hereunder and such failure continues for ten (10) days following written notice thereof.
Progress payments may be required by Tusk if the total Prices for the Goods purchased here under in any one order are equal to or greater than Two Hundred Fifty Thousand Dollars ($250,000.00) USD.
Customer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Tusk, whether relating to Tusk’s breach, bankruptcy or otherwise. Customer further acknowledges and agrees that it shall not withhold or deduct any money from payments owed to Tusk for any reason until after receipt of a credit memorandum from Tusk.

10. Suspensions and Cancellations.

No cancellations of an order or any portion of an order by Customer will be effective unless accepted by Tusk in writing. Accepted cancellations will be subject to a charge to cover all costs and expenses incurred by Tusk through the date of cancellation, plus reasonable cancellation costs, and a reasonable profit margin on the completed work. Cancellation of orders for Goods made to order and not part of Tusk’s regular stock will not be accepted after fabrication has commenced.
In the event Customer suspends Tusk’s performance of work, Customer shall reimburse Tusk for all costs incurred by Tusk because of the suspension, including, without limitation, all borrowing and opportunity costs. In the event a suspension exceeds one hundred eighty (180) days in duration, in addition to being entitled to full reimbursement of costs, Tusk shall have the unqualified right to cancel the unfinished portion of the order without liability.

11. Limited Warranty.

Subject to the other provisions of this Section 11 of these T&Cs, Tusk warrants to Customer that for a period of the lesser of eighteen (18) months from the date of shipment of the Goods, or twelve (12) months after the Goods are initially placed in operation (“Goods Warranty Period”), that such Goods will materially conform to the specifications set forth in Customer’s order and will be free from material defects in material and workmanship. Tusk shall have no liability for defects that arise after the warranty period has expired. The Goods Warranty Period may not be extended without Tusk’s express written agreement.
Any performance guarantee of Tusk relating to the Goods with regard to compliance with any governmental specifications, including, without limitation, particulate levels or pollution controls, are specifically limited to the time of commissioning or start-up of the Goods in question. It is the Customer’s responsibility to properly maintain the Goods, monitor system performance and take corrective actions.
Tusk’s warranty obligations with respect to Goods or parts thereof are contingent upon Customer doing the following:
1. providing Tusk with written notice that specifically identifies the nature of the alleged defect and when Customers become aware of the alleged defect: (A) within 10 days of the time when the defect was or should have been discovered by Customer and (B) during the Warranty Period.
2. providing Tusk with the opportunity to run a root cause analysis on the allegedly defective Goods or parts thereof to determine any defect; and
3. allowing Tusk to validate the alleged defect.
Should Tusk be required to conduct an on-site assessment or provide labor in connection with a root cause analysis or other validation, Tusk will do so at its initial expense, but should Tusk’s analysis or validation reveal that no valid warranty claim exists, Customer will be invoiced for Tusk’s reasonable costs of conducting the analysis or validation, including parts, labor, and travel.

Should Tusk request that allegedly defective or malfunctioning Goods or parts thereof be shipped to Tusk for inspection, such Goods or parts shall be shipped by Customer at Tusk’s expense and according to instructions provided by Tusk. If Tusk’s inspection reveals that no valid warranty claim exists, Customer will be invoiced for Tusk’s reasonable costs of shipment.
Tusk’s warranty obligations shall not apply:
1. If Customer or a third party continues to make use of the Goods after providing Tusk with notice of a defect,
2. If the defect arose because Customer or a third party failed to follow Tusk’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods,
3. If Customer or a third party alters or repairs the Goods without Tusk’s prior written consent,
4. If Customers use of the Goods does not conform to the operation instruction manuals or specifications provided by Tusk, its suppliers, or subcontractors,
5. To malfunctions of the Goods to the extent that such malfunctions arise as a result of integration of the Goods with other suppliers’ products,
6. If the defect is the result of normal wear and tear or corrosion,
7. If the defect resulted from misuse, accident, or use against the advice of Tusk,
8. If the Goods were modified or repaired by the Customer or by a third party without authorization by Tusk, or
9. If a Tusk service representative is not present at the time of initial start-up to give a release of operation of the Goods in accordance with Tusk’s operating and maintenance manual.
This warranty is not transferable beyond the original Customer without the express written consent of Tusk.
Goods, parts, and components repaired or replaced under this warranty bear a warranty that concludes at the earlier of twelve (12) months from the repair or replacement part being provided by Tusk or the conclusion of the Warranty Period for the original Goods.
EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 11(a) AND 11(b) OF THESE T&CS, TUSK MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) 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.
Products manufactured by a third party other than Tusk’s agents and subcontractors (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Third Party Products are not covered by the warranty in Section 11(a) of these T&Cs. For the avoidance of doubt, TUSK MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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. To the extent that Tusk is entitled to assign any warranty of a third-party manufacturer, Tusk will assign such warranties to Customer.
Electrical components, excluding motors, are warranted only to the extent warranted by the original manufacturer. To the extent that Tusk is entitled to pass through a warranty of the original equipment manufacturer of the electrical goods sold, Tusk will pass through such warranties to Customer. Tusk uses commercially reasonable efforts to utilize materials that resist rust, but the warranty on metal and stainless-steel components DOES NOT COVER RUST, OXIDATION, FADING or other BLEMISHES unless it also results in a loss of structural integrity or a failure of these components.

12. Intellectual Property Rights.

Customer acknowledges and agrees that: (i) any and all of Tusk’s intellectual property rights are the sole and exclusive property of Tusk or its Affiliates and licensors; (ii) Customer shall not acquire any ownership interest in any of Tusk’s intellectual property rights under these Terms these Terms; (iii) any goodwill derived from the use by Customer of Tusk’s intellectual property rights inures to the benefit of Tusk or its licensors or Affiliates, as the case may be; (iv) if Customer acquires any intellectual property rights, rights in or relating to any Goods (including any rights in any trademarks, derivative works or patent improvements relating thereto) by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Tusk or its licensors or Affiliates, as the case may be, without further action by either of the parties; and (v) Customer shall use Tusk’s intellectual property rights solely for purposes of using the Goods under these Terms and only in accordance with these Terms and the instructions of Tusk.
Customer shall not: (i) take any action that interferes with any of Tusk’s rights in or to Tusk’s intellectual property rights, including Tusk’s ownership or exercise thereof; (ii) challenge any right, title or interest of Tusk in or to Tusk’s intellectual property rights; (iii) make any claim or take any action adverse to Tusk’s ownership of Tusk’s intellectual property rights; (iv) register or apply for registrations, anywhere in the world, for Tusk’s trademarks or any other trademark that is similar to Tusk’s trademarks or that incorporates Tusk’s trademarks; (v) use any mark, anywhere that is confusingly similar to Tusk’s trademarks; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Tusk’s trademarks; (vii) misappropriate any of Tusk’s trademarks for use as a domain name without prior written consent from Tusk; or (viii) alter, obscure or remove any Tusk’s trademarks, or trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that Tusk may provide.
Notwithstanding anything to the contrary herein, Tusk reserves the right to bring such legal action in the courts or administrative agencies of the Territory or elsewhere as may be required, including, injunctive relief, to prevent the infringement, imitation, unauthorized sale, purchase or distribution, illegal use or misuse of Tusk’s intellectual property rights (each, an “Infringement”). Customer agrees to and shall notify Tusk promptly of any Infringement which comes to Customer’s attention and shall render assistance that Tusk and/or Affiliates may reasonably request, without compensation, to protect Tusk’s intellectual property rights and prevent any Infringement.

13. Tusk’s Intellectual Property Indemnification.

Subject to the terms and conditions of these Terms, including Section 13(b) and Section 13(c) of these T&Cs, Tusk shall indemnify, defend and hold harmless Customer from and against all losses awarded against Customer in a final non-appealable judgment arising out of any claim of a third party alleging that any of the Goods or Customer receipt or use thereof infringes any intellectual property right of a third party.
If the Goods, or any part of the Goods, becomes, or in Tusk’s opinion is likely to become, subject to a claim of a third party that qualifies for intellectual property indemnification coverage under this Section 13 of these T&Cs, Tusk shall, at its sole option and expense, notify Customer in writing to cease using all or a part of the Goods, in which case Customer shall immediately cease all such use of such Goods on receipt of Tusk’s notice.
Notwithstanding anything to the contrary in these Terms, Tusk is not obligated to indemnify or defend Customer against any claim (direct or indirect) under Section 13(a) of these T&Cs if such claim or corresponding losses arise out of or result from, in whole or in part, (i) Customer’s marketing, advertising, promotion or sale or any product containing the Goods; (ii) use of the Goods in combination with any products, materials or equipment supplied to Customer by a person other than Tusk or its authorized representatives, if the infringement would have been avoided by the use of the Goods not so combined; (iii) any modifications or changes made to the Goods by or on behalf of any person other than Tusk or its representatives, if the infringement would have been avoided without such modification or change; or (iv) Customer’s failure to use any updated or corrected version of the Goods; or (v) Tusk’s adherence to Customer’s specifications.
THIS SECTION 13 OF THESE T&CS SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF TUSK AND THE SOLE AND EXCLUSIVE REMEDY FOR CUSTOMER FOR ANY LOSSES COVERED BY THIS SECTION 13.

14. Limitation of Liability.

IN NO EVENT SHALL TUSK BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA 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 TUSK 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 TUSK’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO 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 TUSK FOR THE GOODS SOLD HEREUNDER. THE LIMITATION OF LIABILITY PROVISIONS SET FORTH IN THIS SECTION 14 OF THESE T&CS SHALL APPLY EVEN IF CUSTOMER’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE.
The limitation of liability set forth in Section 14(b) of these T&Cs shall not apply to (i) liability resulting from Tusk’s gross negligence or willful misconduct or (ii) death or bodily injury to the extent resulting from Tusk’s negligent acts or omissions.

15. Compliance with Law.

Generally. Customers shall comply with all applicable laws, regulations, and Customer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms. Customer shall comply with all export and import laws of all countries involved in the sale of the Goods under these Terms or any resale of the Goods by Customer. Customer assumes all responsibility for shipments of Goods requiring any government import clearance. Tusk may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
OFAC Representation and Warranty. Customer is in compliance with the International Emergency Economic Powers Act (50 U.S.C. § 1701) and all other Laws administered by OFAC or any other Governmental Authority imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against countries (“Embargoed Countries”) and persons designated in such Laws (collectively, “Embargoed Targets”). Customer is not an Embargoed Target or otherwise subject to any Economic Sanctions Law.
OFAC Covenant. Without limiting the generality of Section 15(a) of these T&Cs, Customer shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, Customer shall not: (i) directly or indirectly export, re-export, transship or otherwise deliver the Goods or any portion of the Goods to an Embargoed Country or an Embargoed Target; or (ii) broker, finance or otherwise facilitate any transaction in violation of any Economic Sanctions Law.
Export Regulation (EAR and ITAR) Covenant. Customer acknowledges that the Goods, including any software, documentation and any related technical data included with, or contained in, such Goods, and any products utilizing any such Goods, software, documentation or technical data (collectively, “Regulated Goods”) may be subject to US export control Laws and regulations, including the Export Administration Regulations promulgated under the Export Administration Act of 1979, and the International Traffic in Arms Regulations administered by the US Department of State. Without limiting the generality of Section 15(a) of these T&Cs, Customer shall not, and shall not permit any third parties to, directly or indirectly, export, re-export or release any Regulated Goods to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Regulated Goods is prohibited by applicable federal or foreign law. Customer shall be responsible for any breach of this Section by its, and its successors’ and permitted assigns’, parent, affiliates, employees, officers, directors, partners, members, shareholders, customers, agents, Customers, resellers, or vendors that are not Customer.
Foreign Corrupt Practices Act Representation and Warranty. Customer is following the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”) and the UK Bribery Act of 2010 (“Bribery Act”). Neither Customer nor any of its representatives has: (i) used any corporate funds for any unlawful contribution, gift, entertainment or other unlawful expense relating to political activity or to influence official action; (ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (iii) made any bribe, rebate, payoff, influence payment, kickback or other unlawful payment; or (iv) failed to disclose fully any contribution or payment made by Customer (or made by any Person acting on its behalf of which Customer is aware) that violates the FCPA or the Bribery Act, or any other applicable anti-bribery or anti-corruption laws or regulation.
Anti-Bribery Covenant. Without limiting the generality of Section 15(a) of these T&Cs, Customer shall, and shall cause its representatives to, comply with the FCPA, the Bribery Act, or any other applicable anti-bribery or anti-corruption laws or regulation, including maintaining and complying with all policies and procedures to ensure compliance with these Acts. Customer shall further maintain adequate books and records relating to its compliance with the terms of these Terms, during the term of these Terms and for a period of five (5) years thereafter. Such books and records shall be made available at Customer’s place of keeping for inspection by Tusk or their representatives, for the purpose of determining whether Customer has complied with the terms of these Terms.

16. Reserved.

17. Waiver.

No waiver by Tusk of any of the provisions of these Terms is effective unless explicitly set forth in writing and signed by Tusk. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Terms 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.

18. Confidential Information.

All non-public, confidential or proprietary information of Tusk, including but not limited to, specifications, samples, patterns, designs, plans, product design, manufacturing and other drawings, documents, engineering data and other data, business operations, customer lists, pricing, discounts or rebates, disclosed by Tusk to Customer, 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 these Terms is confidential and the property of Tusk (all such information being “Confidential Information”). Confidential Information is provided to Customer solely for the use of performing is obligations these Terms and may not be disclosed, reproduced, or otherwise copied at any time during or after the Term, unless authorized in advance by Tusk in writing. Upon Tusk’s request, from time to time, and as soon as practical following the expiration or earlier termination of the Agreement, Customer shall promptly return all documents and other materials received from Tusk, including all Confidential Information, and shall destroy all copies of Confidential Information in Customer’s possession and under its control and have an executive officer or director of Customer certify such destruction to Tusk in writing. Tusk shall be entitled to injunctive relief for any violation of this Section 18 of these T&Cs. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.

19. Force Majeure.

Tusk shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Tusk 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.

20. Assignment.

Customer shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of Tusk. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under these Terms.

21. Relationship of the Parties.

The relationship between the parties is that of independent contractors. Nothing contained in these Terms 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.

22. No Third-Party Beneficiaries.

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 T&Cs or otherwise under or by reason of the Agreement.

23. Governing Law.

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 Pennsylvania, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of such State. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the transactions contemplated by the Agreement, including these T&Cs.

24. Submission to Jurisdiction.

Any legal suit, action or proceeding arising out of or relating to these Terms shall be instituted in the courts of the State of Pennsylvania having jurisdiction in Telford, Pennsylvania, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.

25. Notices.

All notices, requests, 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 in the preamble to the Agreement or to such other address that may be designated by the receiving party in writing. A Notice under these Terms will be deemed to have been received if it is delivered to the address for the receiving party in one of the following methods: (a) if by hand delivery or facsimile transmission, on the date so delivered; (b) if by nationally recognized overnight private courier, on the first business day following the sending party’s delivery of such notice to the courier; (c) if by United States registered or certified mail, return receipt requested, postage prepaid, three (3) business days after being deposited in the United States mail; or (d) if by email, when the receiving party, by an email sent to the email address for the sending party, acknowledges having received that email or otherwise responds in a manner that indicates notice was received; provided, however, an automatic “read receipt” does not constitute acknowledgment of an email for purposes of this Section 25 of these T&Cs.

26. Severability.

If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.

27. Survival.

Provisions of these T&Cs which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.

28. Amendment and Modification.

These T&Cs may only be amended or modified in a written document stating specifically that it amends these T&Cs and is signed by an authorized representative of each party.

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