Standard Terms and Conditions of Sale

Last Updated: August 19, 2024

The following terms and conditions of sale apply to transactions between Matter Surfaces and Buyer. Matter Surfaces agrees to sell, and the Buyer agrees to purchase, the products listed on invoices under the terms set forth below. By placing an order, making a payment, or accepting delivery, the Buyer agrees to be bound by these terms and conditions.

1. Definitions.

“Buyer” shall mean the individual or entity identified on a Matter Surfaces’ Invoice. “Matter” shall mean Matter Surfaces. “Product(s)” shall mean Matter product sold to Buyer pursuant to this Sale Agreement. “POD” shall mean Proof of Delivery. “UCC” shall mean Uniform Commercial Code. “ICC” shall mean International Chamber of Commerce. “Standard Orders” shall mean orders for stocked Product. “Custom Orders” shall mean special orders for non-standard or non-stocked Product, special manufacturing orders for large projects that would not ordinarily be in inventory, and orders where the Product is cut, altered, or prepared at the request of Buyer. “Sale Agreement” shall encompass both Sale Orders and Sale Agreements between Matter and Buyer.

2. Relationship of Parties.

Matter and Buyer are independent entities, where Buyer is purchasing Product from Matter for its use or for resale. Buyer acknowledges that it has no authority to bind or contract in the name of Matter or to create any liability against Matter.

3. Delivery of Product.

Buyer shall bear all risk and expense for delivery of Product. A Product may be shipped to Buyer in whole or in part and will be shipped F.O.B. destination location, pre-pay and add, unless otherwise specified on the sales order acknowledgement. Title to a Product shall pass to Buyer when delivered, unless otherwise specified. Among other things, a signed delivery receipt or bill of lading will constitute POD. The choice of carrier is made solely at the discretion of Matter, unless otherwise agreed. All orders should be counted and inspected prior to acceptance. Any damages or shortages must be documented on the POD. In accordance with UCC regulations for domestic shipments and ICC regulations for international shipments, the shipper of record (consignee) is responsible for filing claims with the freight carrier. Lead times will vary. Matter does not guarantee shipment or delivery by a certain date or time, although Matter will strive to deliver a Product by the date that it may communicate to Buyer. Matter shall not be liable to Buyer, or any other person, for any loss or damage of any kind which results from delay in shipment or delivery.

4. Cancelled Orders and Returns.

Buyer must notify Matter within 24 hours to make changes or cancel an order. Within 24 hours, orders may be changed or cancelled only if production has not commenced or if the order has not yet been shipped. Requests to change, cancel, or return an order must be made to: CustomerCare@mattersurfaces.com or via phone at 800.628.7462.

Returns can only be made up to 30 days after the original ship date, except for: Products with an expiration date, Products produced to customer specifications, custom-cut Products, specialty Products, logoed Products, discontinued Products, seconds, obsolete Products, or used Products, all of which cannot be returned. For approved returns, Matter will issue a Return Materials Authorization (RMA). Items returned without authorization or by collect freight will be refused. All returns, cancelled orders, and refused orders are subject to Matter’s applicable restocking fee of 30% plus freight charges for delivery and return.

5. Product Variance & Compliance.

Each Product shall be deemed to be without defect and in conformity with its specifications and the terms of the Sales Agreement even though reasonable variances may exist. Buyer acknowledges that it is an accepted standard in the industry that for a Product (i) color variations may exist between dye lots; (ii) natural characteristics exist (i.e., wood look Products may have knots or grain variations); (iii) cut and measurement variances occur during installation (i.e., a Product’s actual sizing may vary from measurements stated on a final order description); and (iv) shrinkage, separation and expansion occur, even when the Product is properly installed (i.e., a Product may expand or contract due to site conditions or seasonal and temperature changes). Buyer acknowledges that reasonable industry variances, including (without limitation) those stated herein, are permissible.

6. Prices and Payment.

Prices. Matter generally makes its price for a Product known through its price lists and sales quotes, although prices are subject to change without notice. Matter makes no guaranty that a previously quoted price is available at the time an order is placed, unless otherwise agreed. Each request for Product will be filled at the prices set forth on the Invoice.

Payment Terms. Invoices shall be due and payable in full, less applicable earned discount or deposit, in accordance with the terms set forth on the Matter Invoice. Both Standard and Custom Orders may require a deposit as determined by Matter’s Credit Department. If payment is not received by the due date, the following terms will apply:

• Late Fees: Matter reserves the right to charge a late fee of 18% of the outstanding balance for each month that the payment is overdue.
• Suspension of Shipment: Matter may withhold shipment of orders until payment is received.
• Collection Costs and Fees: If Buyer’s account becomes past due and is sent to collections, Buyer agrees to be responsible for all associated collection costs and fees as outlined in the Collection Costs and Fees section.

7. Collection Costs and Fees.

If Buyer’s account becomes past due and is sent to collections, Buyer agrees to be responsible for all associated collection costs and fees. This includes, but is not limited to, reasonable attorney's fees, court costs, and other expenses incurred in the collection process. The following terms apply:

1. Notice of Delinquency: Matter will provide Buyer with notice of delinquent account and give Buyer a reasonable period to resolve the outstanding balance before initiating collection proceedings.
2. Collection Agency Fees: If the account remains unpaid after the notice period, it may be referred to a collection agency. Buyer agrees to pay any fees charged by the collection agency, which may be a percentage of the outstanding balance or a flat fee, as allowed by applicable law.
3. Legal Costs: Should legal action be required to recover the debt, Buyer agrees to pay all costs associated with such action, including, but not limited to, court fees, attorney’s fees, and any other expenses incurred by Matter in enforcing its rights under this agreement.
4. Interest: Matter reserves the right to charge interest on overdue amounts at the maximum rate permitted by law, from the date the amount becomes due until it is paid in full.

8. Taxes.

Buyer assumes exclusive liability for any and all taxes, tariffs, fees, duties, withholdings or like charges, whether domestic or foreign, now imposed or hereafter becoming effective (“Taxes”) related to the Product and its purchase from Matter. Matter will include applicable state sales taxes on the invoice based on “Ship To” destination. If Buyer claims an exemption, a resale or tax-exempt certificate is required prior to order placement. For Canadian Buyers, neither GST nor duty will be charged on the initial invoice. A separate invoice will be sent later for GST and duty along with the required supporting documentation for these charges.

9. Limited Warranty.

Product-specific warranties are available at www.mattersurfaces.com. Products are warranted in accordance with said Product warranty as in effect on the date of Matter’s Order Confirmation of Buyer's order. Notwithstanding the foregoing, once a Product has been installed, such Product is deemed accepted by Buyer and no warranty shall apply for color, characteristics, cut, fit or appearance related claims. As Buyer’s sole and exclusive remedy for a breach of the Product warranty and at Matter’s sole discretion, Matter will either replace or repair a Product that does not conform to an applicable warranty; provided, however, that Matter shall not be responsible for replacing or repairing a Product that has been damaged or altered by Buyer or its customers due to improper maintenance or use. Specific Product maintenance instructions are available on the Matter web site at www.mattersurfaces.com. With respect to a Product sold as “Promotional” or “Irregular” Goods by Matter, including, without limitation, drops, discontinued items, seconds or the like, such Product is sold to Buyer “AS IS/WHERE IS” without any warranty of any kind except as otherwise expressly agreed to in writing by Matter.

10. Indemnity; Liability Limitation.

Buyer hereby agrees to indemnify, reimburse in full, defend and hold harmless Matter, its affiliates, officers, directors, personnel and agents from and against any and all liability, claims, suits, actions, losses, costs or expenses including (without limitation) reasonable attorneys’ fees relating to or arising out of any claim or demand (a) for any Taxes or related penalties and interest, (b) due to Buyer’s breach of the Sale Agreement; (c) that Buyer’s customers or a third party may make against Matter based upon or arising from damage due to the acts and/or omissions of Buyer or due to the installation of a Product, unless installer is contracted by Matter; (d) related to the failure of any payment sent or made by Buyer to be honored or to satisfy the requirement of this Agreement;(e) for infringement or misappropriation of a third party’s intellectual property rights based upon Matter’s incorporation of any designs, formulas, or specifications in a Product where such designs, formulas, or specifications have been specifically ordered or requested by Buyer. To the maximum extent allowable under applicable law and excluding those liabilities that by law Matter cannot limit or disclaim, (i) Matter’s aggregate liability arising from or relating to this Sale Agreement or a Product, regardless of the cause of action asserted, is limited to the amount paid by Buyer to Matter for the applicable Product and (ii) Matter shall not be liable for any special, incidental, consequential, indirect, or punitive damages, including without limitation, lost revenues, loss of use of the Product, loss resulting from improper storage, processing, padding/cushion, delay in delivery or shipment or errors in shipment or labeling, loss of data, or the cost of any substitute Product or related equipment.

11. Trademarks.

For each Buyer who has otherwise been authorized by Matter to resell or distribute Matter Product, Matter hereby grants to such Buyer a non-exclusive, non-assignable, royalty-free license to use the now and hereafter existing trademarks, trade names, copyrighted materials, logos, slogans, designs and distinctive advertising marks of Matter applicable to the Product (collectively, the “Marks”) solely in connection with the advertisement, promotion, sale and distribution of a Product by Buyer and in accordance with all guidelines and instructions from Matter regarding such use. Buyer shall not use the Marks in any manner likely to confuse, mislead, or deceive the public, or to be injurious or inimical to the best interests of Matter. Matter shall retain sole ownership of all goodwill associated with the Marks and each Product, as represented and symbolized by the Marks.

12. Cancellation.

Matter may cancel or terminate a Sale Agreement in whole or in part at any time by giving oral or written notice to Buyer. Cancellation or termination by Matter shall not constitute a waiver or release of any other rights and remedies of Matter in contract or provided by law or at equity.

13. Entire Agreement; Modifications.

Each Sale Agreement constitutes the entire agreement between Matter and Buyer and supersedes all prior oral or written agreements. The Sale Agreement may not be amended or modified, except by a further written agreement signed by an authorized representative of Matter.

14. Governing Law.

Each Sale Agreement shall be governed and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to any conflicts of law principles. Any

litigation instituted by Buyer against Matter that pertains in any manner to said Sale Agreement must be instituted in the Superior Court of Suffolk County, Massachusetts or the United States District Court for the district of Massachusetts. Any such litigation instituted against Buyer by Matter may, at Matter’s option, be instituted in the courts above identified for the Commonwealth of Massachusetts or in the state in which Buyer maintains its principal place of business. If any term, provision or condition of a Sale Agreement is held invalid or unenforceable, the same shall not invalidate or otherwise affect any other provision thereof. The parties agree that all notices shall be in writing.

15. Assignment.

Buyer shall not assign, transfer or sublicense a Matter Sale Agreement, or any rights or obligations therein, without the prior written consent of Matter. Any assignment or attempt to assign a Sale Agreement, in whole or in part, by operation of law or otherwise, without Matter’s prior written consent shall be null and void. Matter shall have the right to assign, transfer, or sublicense all or any part of a Sale Agreement to another at any time and without the consent of Buyer. 16. Confidential Information. Buyer agrees to receive and hold Confidential Information of Matter in trust and in strictest confidence and shall not use, reproduce, distribute, disclose, or otherwise disseminate any Confidential Information except as necessary to perform its obligations hereunder. Disclosures of the Confidential Information may be made only to Buyer’s employees and agents who have a specific need to know and are subject to confidentiality restrictions at least as restrictive as those contained herein. “Confidential Information” means confidential information relating to the business, products, and services of Matter, which is or has been disclosed to Buyer, and which has value to Matter and is not generally known to Matter’s competitors, including (without limitation), information regarding product specifications and product plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel, R&D activities, and know-how.

16. Confidential Information.

Buyer agrees to receive and hold Confidential Information of Matter in trust and in strictest confidence and shall not use, reproduce, distribute, disclose, or otherwise disseminate any Confidential Information except as necessary to perform its obligations hereunder. Disclosures of the Confidential Information may be made only to Buyer’s employees and agents who have a specific need to know and are subject to confidentiality restrictions at least as restrictive as those contained herein. “Confidential Information” means confidential information relating to the business, products, and services of Matter, which is or has been disclosed to Buyer, and which has value to Matter and is not generally known to Matter’s competitors, including (without limitation), information regarding product specifications and product plans, designs, costs, prices, finances, marketing plans, business opportunities, personnel, R&D activities, and know-how.