Terms & Conditions of Sale

These Terms & Conditions of Sale (the “Terms”), together with the estimate and/or sales order and/or packing list and/or invoice (each a “Form”) serve as the offer of Atlas 46, LLC (“A46”) to the buyer identified in the Form (“Buyer”) to sell the goods described in the Form (the “Goods”) all of which together form the basis of any agreement (the “Agreement”) by and between A46 and the Buyer.
 
1. ACCEPTANCE. No acknowledgment by A46 of, reference by A46 to, or performance by A46 under any order submitted by Buyer will be deemed to be an acceptance by A46 of any terms or conditions contained in such order that are additional to or contrary to these Terms. Any acceptance by A46 of any oral or written order from Buyer is subject to and includes these Terms and is expressly conditioned upon Buyer’s assent to any terms and conditions of sale herein which are additional to or different from any terms or conditions of sale contained in any order or communication submitted by Buyer. Except as expressly provided below, no order may be changed or cancelled by Buyer after Acknowledgment by A46 without A46’s written consent, and A46 reserves to its sole judgment and discretion when and under what circumstances it will approve any order cancellations or changes. If changes or cancellations are accepted, a change or
cancellation fee may be charged to Buyer in accordance with A46’s then current change and cancellation policy.
 
2. DELIVERY. Unless otherwise specified on the Form or these Terms, the Goods will be delivered F.O.B. A46’s warehouse or plant; or in the case of shipment from an A46 vendor, F.O.B. Origin. Delivery dates are approximate and not guaranteed. A46 will use commercially reasonable efforts to deliver the Goods on or before the estimated delivery date, as indicated on the Form, and will notify Buyer if the estimated delivery dates cannot be honored and will deliver the Goods as soon as practicable thereafter. Under no circumstances will A46’s failure to deliver the Goods by the estimated delivery date permit Buyer to cancel an order.  A46 retains the right to make partial or early shipments. A46 will consider claims for concealed shortages in shipments or rejections due to failure to conform to an order only if such claims or rejections are made in writing within fifteen (15) days of delivery and are accompanied by the packing list and, if
applicable, the reasons in detail why the Goods do not conform to Buyer’s order.   
 
3. RISK OF LOSS. If A46 is to ship the Goods by carrier, risk of loss passes to Buyer when the Goods are delivered to the carrier even though the shipment is under reservation of a security interest. If Buyer is to pick up the Goods at A46’s warehouse or plant, risk of loss passes to Buyer on tender of delivery at A46’s plant or warehouse. Anything to the contrary in these Terms notwithstanding, risk of loss also passes to Buyer upon the occurrence of any of the following events: (i) Buyer is unable or refuses to accept delivery on the delivery date for the shipment specified on the Acknowledgement; or (ii) the Goods are ready for delivery and Buyer has failed to furnish A46 with shipping instructions; or (iii) Buyer has paid the entire purchase price
for a shipment prior to delivery.
 
4. ACKNOWLEDGEMENT. “Acknowledgement” means A46’s written confirmation and acceptance of order from the Buyer. A46 has the right to update the Acknowledgement at any time for revision of schedule or revision of payment terms. The latest Acknowledgement sent by A46 supersedes all previously-sent Acknowledgements.
 
5. PRICE. Unless otherwise specified on the Form, the price of the Goods is F.O.B. Origin and is exclusive of all insurance, freight, packing and unpacking charges and all imposts, duties and taxes.  If Buyer requests that A46 arrange shipment of Goods, an additional charge will apply. Title and risk of loss passes at A46’s warehouse (or in the case of shipment from an A46 vendor, at such vendor). If A46 pays any insurance, freight, packing, unpacking or other charges in connection with any shipment or any imposts, duties or taxes in connection with any shipment (including any sales, use, excise, value-added, ad valorem or property taxes and any interest or penalties in connection with any of the foregoing, but excluding any taxes measured on A46’s net income), Buyer, upon receipt of an invoice from A46 therefor, will promptly reimburse A46 for same. Buyer is either purchasing Goods for resale or is authorized as a direct pay taxpayer by the state to which use (sales) tax is applicable (Buyer shall provide proof of such direct pay status). If Buyer is purchasing Goods for resale, Buyer must furnish the resale certification required by the state of the Buyer’s principal office; provided that if Goods are shipped elsewhere, Buyer must furnish such evidence required by the recipient address state. Buyer will reimburse A46 for any and all tax compliance costs incurred by A46 relating to Buyer’s failure to timely furnish any and all of the foregoing tax documentation. Prices are firm for all Goods scheduled for delivery (in accordance with the delivery date in the Acknowledgment) not more than 90 days from the date of the Acknowledgement. Prices for Goods scheduled for delivery thereafter are subject to increases; provided that A46 will give Buyer prior written notice of any such increases, and Buyer will have the right to cancel the entire (but only the entire) portion of the sale of Goods affected by such price increases, provided A46 receives from Buyer written notice of such cancellation within 15 days after Buyer’s receipt of A46’s notice of price increase.
 

6. FORCE MAJEURE. A46’s duty to perform under this Agreement and the prices therein are contingent upon the non-occurrence of an Event of Force Majeure. If A46 shall be unable to perform a material obligation under this Agreement due to an Event of Force Majeure, this Agreement shall at A46’s election (i) remain in effect but A46’s obligations shall be suspended until the uncontrollable event terminates or (ii) be terminated upon ten (10) days’ notice to Buyer, in which Buyer shall pay A46 for all parts of the Goods delivered to Buyer as of the date of termination.  An “Event of Force Majeure” shall mean any cause or event beyond the control of A46.  Without limiting the foregoing, Event of Force Majeure includes: acts of God; acts of terrorism, war or the
public enemy; flood; earthquake; tornado; storm; fire; civil disobedience; pandemic, epidemic, quarantine, (including without limitation COVID-19 infection (“Coronavirus”)); insurrections; riots; labor disputes; labor or material shortages; sabotage; restraint by court order or public authority; and the requirements of any applicable government in any manner that diverts either the material or the finished Goods to the direct or indirect benefit of the government.
 
7. TECHNICAL ADVICE. Upon request, A46 will endeavor to furnish such technical advice as it has available in reference to Buyer´s use of its products. Buyer expressly understands that any technical advice that A46 furnishes concerning the use of its products is given gratuitously, and A46 assumes no obligation or liability for the advice or results obtained, all such advice being given and accepted at Buyer´s risk. Buyer must pass on all instructions and warnings supplied by A46 to those persons who use the Goods. Buyer must leave intact all warning labels adhered to the Goods by A46.
 
8. EXPORT CONTROLS & FCPA. Buyer may not sell, resell, export, re-export, retransfer or engage in or facilitate other transactions contrary to U.S. law, including the U.S. Export Administration Regulations, the U.S. International Traffic in Arms Regulations, U.S. economic sanctions regulations administered by the U.S. Treasury Department, and the U.S. Foreign Corrupt Practices Act.
 
9. TERMS OF PAYMENT. Buyer agrees to promptly pay all sums agreed to be paid hereunder. Payment terms will be as noted on the face of the Form. Shipments and deliveries hereunder will at all times be subject to the approval of A46´s credit department. A46´s payment terms are subject to change without notice and those in effect at time of shipment will apply. A46 reserves the right to divide an order into separate shipments and separately invoice such shipments, in which case each shipment will be deemed a separate contract and payment therefore will be due in
accordance with these Terms. If Buyer fails to fulfill the terms of payment, or if A46 has any doubt as to Buyer´s financial responsibility, A46 may, at its option: (i) require full or partial payment in advance; (ii) demand payment and suspend deliveries until payment is received; or (iii) decline to make further deliveries except upon receipt of cash or satisfactory security. Buyer´s failure to furnish payment upon demand will constitute a repudiation of this contract, and A46 will be entitled to receive reimbursement for its reasonable cancellation charges. A46 reserves the right to add to any account outstanding for more than 30 days a service charge equal to the lesser of the maximum allowable legal interest rate or 1.5% of the principle amount due at the end of each month. Customer shall pay all costs (including attorney’s fees) incurred by A46 in attempting to collect amounts due or otherwise enforcing these Terms.  A46 will not be liable for any of Buyer´s costs or expenses arising out of the exercise of any of A46´s rights hereunder.
 
10. CANCELLATION. Accepted orders cannot be cancelled, in whole or in part, without A46´s written consent. In no event will A46 accept cancellation of order(s) for soft or hard body armor, helmets, and/or other personal protective equipment. If Buyer requests cancellation of orders for Goods which have been manufactured in whole or in part, such cancellation will be at A46´s option and subject to cancellation charges. A46´s failure to meet estimated ship dates will not be sufficient cause for cancellation of orders. Buyer will be liable for the payment of reasonable cancellation charges, which will not be less than 10% of the price of the Goods cancelled, but will include (a) all costs and expenses that A46 incurs for or on account of the Goods cancelled and the cancellation; (b) any and all liabilities, costs, damages and expenses that A46 incurs by or as a result of commitments incident to the Goods involved including commitments made or liabilities assumed to any supplier of such Goods and materials used in such Goods; and (c) any and all indirect charges as well as a reasonable profit.
 
11. LIMITED WARRANTY. A46 warrants that (the “Warranty”) the Goods manufactured by A46 and delivered will be free from significant defects in material and workmanship during the standard service life expectancy of the Good, not to exceed 12 consecutive months from the date of delivery (the “Warranty Period”). The Warranty only applies to the original Buyer of the Goods, and does not apply to any Good that (i) has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, installation, assembly, storage, handling or maintenance (including incorrect laundering), abnormal physical stress or environmental conditions, use contrary to any instructions issued by A46, or use in a manner for which the Good was not intended, (ii) has been
reconstructed, repaired, or altered by an person or entity other than A46 or its authorized representative, (iii) has been used with any third-party product that has not been previously approved in writing by A46, (iv) has been subjected to any condition other than ordinary wear and tear, (v) has only cosmetic damage, including minor scratches, surface deformations, discoloration, or natural fading of colors; (vi) has been damaged during transportation; (vii) has date codes or tags that have been removed or defaced, (viii) were purchased from an unauthorized dealer, including Goods purchased through third party auction sites, unauthorized dealers selling via third party marketplaces, or dealers selling altered or modified Goods, or (ix) has been damaged
by normal wear and tear or any cause not the fault of A46. Goods or components of Goods purchased by A46 from a third party for resale to Buyer or for incorporation into the Goods will carry only the warranty extended by the original manufacturer (“OEM”) and A46 shall have no liability therefor. Such OEM warranty terms may be found on the OEM’s associated websites or by contacting the OEM.  A46’s obligations under this Warranty are subject to satisfaction of the following conditions: (a) that Buyer has notified A46 in writing of any alleged defect (and has provided A46 in writing the model number of the allegedly defective Good as stated on the original sales receipt), no later than 30 days from the date Buyer discovered, or upon reasonable inspection should have discovered, that alleged defect, but in any event before the expiration of the applicable Warranty Period, (b) that Buyer has shipped, at Buyer’s expense, the allegedly defective Good to A46’s facility located at 400 Biltmore Drive, Suite 530, Fenton, MO 63026, for inspection and testing by A46, no later than 60 days from the date Buyer discovered, or upon reasonable inspection should have discovered, the alleged defect, and (c) that Buyer is not in default of its payment obligations to A46 under any purchase order or agreement. Buyer’s failure to deliver the foregoing written notice or ship any Defective Good back to A46 within the applicable time period will be deemed an unconditional waiver of Buyer’s claims for any such defects. If A46’s inspection and testing reveals, to A46’s satisfaction, that the Good is not conforming to the Warranty (each a “Defective Good”), A46 will, in its sole discretion, repair the Defective Good, replace the Defective Good, or credit or refund the price of the Defective Good less any applicable discounts, rebates, or credits. If A46 exercises its option to repair or replace, A46 will, after receiving Buyer’s shipment of the Defective Good, deliver the repaired or replaced Good, at A46’s expense (except that Buyer will be responsible for insurance costs), F.O.B. A46’s warehouse or plant (or as otherwise provided on the Form, or in the case of shipment from an A46 vendor, F.O.B. Origin). Goods repaired or replaced under this Warranty will be warranted for the unexpired
portion of the Warranty applying to the original Goods.  Buyer has no right to return any Goods for repair, replacement, credit or refund except as provided under this Warranty and below under

“RETURNS.” THIS WARRANY PROVIDES THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND A46’S ENTIRE LIABILTY FOR ANY BREACH OF THIS WARRANTY. EXCEPT FOR THIS EXPRESS WARRANTY, A46 MAKES NO WARRANTY WITH RESPECT TO THE GOODS, INCLUDING ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.  Notwithstanding the Warranty Period, A46 may in its sole discretion correct Defective Goods, purchased by individual retail customers, outside of the
Warranty Period for the lifetime of the Defective Good (“Limited Lifetime Warranty”).  
 
12. DAMAGES. IN NO EVENT WILL A46 BE LIABLE FOR SPECIAL, PUNITIVE, EXEMPLARY, INCIDENTAL, ENHANCED, INDIRECT OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS REVENUE, LOSS OF USE, LOSS OF REPUTATION AND DATA, DIMINUTION IN VALUE, BUSINESS INTERRUPTION,COSTS INCURRED INCLUDING FOR CAPITAL, SUBSTITUTE GOODS, AND FACILITIES), EVEN IF A46 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. A46´S AGGREGATE LIABILITY FOR DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING FROM OR BASED UPON BREACH OF WARRANTY, BREACH OF CONTRACT, TORT OR OTHER CAUSE OF ACTION (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WILL IN NO CASE EXCEED THE PURCHASE PRICE THAT BUYER PAYS FOR THE PARTICULAR GOODS GIVING RISE TO THE CLAIM. BUYER WILL INDEMNIFY AND HOLD HARMLESS A46 FOR ANY DAMAGES INCURRED BY A46 IN EXCESS THEREOF.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL A46 BE LIABLE FOR ANY DAMAGES (WHETHER DIRECT OR INDIRECT) FOR GOODS OR COMPONENTS OF GOODS PURCHASED BY A46 FROM A THIRD PARTY FOR RESALE OR THE INCORPORATION INTO THE GOODS FOR SALE.   
 
13. SECURITY INTEREST. Buyer grants to A46 a first priority purchase money security interest in all Goods purchased hereunder, and in each and every item thereof, including replacements, proceeds, and products thereof, to secure payment of all amounts and performance of all obligations due hereunder. Buyer will execute, at A46´s request, all financing statements that A46 deems necessary or desirable to perfect A46´s security interest. Buyer authorizes A46 to sign on Buyer´s behalf, and file, a copy of the security agreement or a financing statement with the appropriate authorities to perfect A46´s security interest in all purchased Goods. A46 will have all rights and remedies of a secured party under the UCC in effect in any applicable jurisdiction.
 
14. OPTION TO ACCELERATE. A46 has the right on written notice to Buyer to demand immediate payment of amounts due hereunder if A46 believes in good faith that the prospect of Buyer´s payment or performance is impaired. Buyer´s acceptance of Goods will constitute an express representation that Buyer is not then insolvent within the meaning of Title 11, United States Code or similar federal or state law.

 
15. SEVERABILITY. The provisions of these Terms are severable and if any provision is invalid, void or unenforceable in whole or in part for any reason, the remaining provisions will remain in full force and effect.
 
16. NON-WAIVER. A46´s failure or refusal to insist upon strict performance of any provisions of this Agreement will not be deemed a waiver of A46´s rights or remedies, or a waiver by A46 of any subsequent default by buyer in the performance of or compliance thereof.
 
17. ASSIGNMENT. Buyer may not assign these Terms in whole or in part and any attempted assignment will be void and of no effect.
 
18. ENTIRE AGREEMENT. Unless alternative or supplemental terms and conditions are expressly agreed upon in writing by A46, these Terms and Form(s) shall constitute the entire Agreement and understanding of the parties and supersedes all prior agreements and understandings relating to the subject matter hereof. No agreements, understandings, restrictions, warranties, or representations exist between or among the parties other than those provided herein unless agreed upon by the parties.
 
19. APPLICABLE LAW & JURISDICTION. Buyer and A46 agree that interpretation of and performance under these Terms, as well as all other aspects of the transaction contemplated by these Terms, will be governed by the laws of the State of Missouri without regard to Missouri´s conflict or choice of law rules. Buyer and A46 further agree that any action at law, suit in equity or other judicial proceeding (“Litigation”) with respect thereto must be brought and maintained in a court of competent jurisdiction within the United States District Court, Eastern District of Missouri or the applicable Circuit Court located within the County of Saint Louis, Missouri. Buyer agrees to hereby waive any right to forum non conveniens.  Buyer and A46 agree that any controversy or claim arising out of or relating to this Agreement, or the breach thereof, and as a condition precedent to Litigation, the parties herein shall attempt in good faith to resolve any
controversy or claim through negotiations between authorized representatives of the Buyer and A46.  If the matter is not resolved by negotiations between the parties hereto, the Buyer and A46 must participate in good faith in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration & Mediation. The parties herein agree to share equally in the costs of mediation and the mediation shall be administered by the offices of United States Arbitration & Mediation 500 N. Broadway, Suite 1800, St. Louis, MO 63102 at a location within Saint Louis County, Missouri, unless otherwise agreed upon by the parties.  In no event shall A46 be liable for any travel or other expenses incurred by Buyer.        
 
20. GOVERNMENT ORDERS (GOVERNMENT END USER). The following provision applies only to sales by A46 indirectly to the US Government:  The Buyer acknowledges that Goods ordered and delivered under this Agreement are commercially available off- the-shelf (COTS) items as defined within Part 2 of the Federal Acquisition Regulation (FAR) unless otherwise expressly agreed upon in writing by A46.  A46 as a commercial subcontractor agrees to be bound only by applicable Government prime contract FAR clauses expressly agreed upon by A46 and Buyer.  If the sale of the Goods is in connection with a U.S. Government contract, Buyer, certifies that it has provided and will provide current, accurate, and complete information, representations and certifications to all government officials, including but not limited to all aspects of its ownership, eligibility, and performance and will follow all applicable laws, ordinances or rules, regulations, orders, or other governmental requirements and shall indemnify, defend, and hold harmless A46 and A46’s officers, shareholders, directors, employees, and agents from and against any claims, actions, costs, expenses, damages, and liabilities, including reasonable attorney’s fees, caused by Buyer’s breach of the aforementioned certification.  Buyer shall obtain written authorization and approval from A46 prior to providing any government official with any information about A46’s performance that is subject to this Agreement. 
 
21. INTELLECTUAL PROPERTY. Buyer acknowledges that Atlas 46, LLC is the exclusive owner of all right, title, and interest in Atlas 46 trademark(s) and intellectual property. Notwithstanding anything to the contrary, nothing in this Agreement will function to transfer Atlas 46 intellectual property rights to the Buyer and Atlas 46 retains exclusive interest in and ownership of its intellectual property.  To the extent the Goods include Atlas 46 trademark(s), Buyer is permitted, on a limited, non-exclusive, and non- transferable basis, to use the Atlas 46 trademark(s) for the sole purpose of marketing and selling its products which incorporate the  trademark(s). All goodwill resulting from such permitted use of Atlas 46 trademark(s) by Buyer will inure to the sole benefit of Atlas 46, and such Buyer must strictly adhere to Trademark Usage Guidelines which can be provided by Atlas 46 upon request. Atlas 46 may, at any time and at its sole discretion, revoke permission of trademark usage. Buyer shall defend, indemnify and hold harmless Atlas 46 (and each of the officers, shareholders, directors, employees and agents) from and against any and all liabilities, claims, demands, losses, damages, expenses, fines, costs, including reasonable attorneys’ fees, consequential damages, or any and all other expenses and costs incident to the foregoing, related to any claim, lawsuit, investigation, proceeding, regulatory action or other cause of action asserted by a third party against Atlas 46 arising out of or relating to the use of Atlas 46 trademark(s) by Buyer.

22. PERFLUOROALKYL AND POLYFLUOROALKYL SUBSTANCES. Buyer acknowledges that certain Goods may contain perfluoroalkyl and polyfluoroalkyl substances (“PFAS”) which may be regulated by a governing body with jurisdiction applying to Buyer’s purchase and/or use of such Goods. Buyer represents and warrants that Buyer’s purchase of Goods containing regulated PFAS above a threshold that would otherwise prohibit or restrict the sale of such Goods to Buyer are for Buyer’s professional use in the workplace as Personal Protective Equipment (“PPE”) to
minimize Buyer’s exposure to hazards that cause serious workplace injuries and illnesses that may result from contact with chemical, radiological, physical, biological, electrical, mechanical, or other workplace or professional hazards.
 

ATLAS 46 WILL HAVE NO LIABILITY FOR CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES OF THE OTHER PARTY ARISING OUT OF OR RELATED TO THIS PURCHASE ORDER, REGARDLESS OF HOW SUCH DAMAGES ARISE, WHETHER OR NOT ATLAS 46 WAS ADVISED SUCH DAMAGES MIGHT ARISE.