These Terms and Conditions of Sale ("Terms and Conditions") between ABSORBITS, INC. dba DRYOUT, ("DRYOUT") and the entity purchasing products from DRYOUT ("Brand Partner") govern DRYOUT sale, license, resale and distribution, as applicable, of DRYOUT technologies, products, and any incorporated third-party vendor ("Vendor") products and DRYOUT services, which consist of a variety of services, including design services, sold and performed by DRYOUT or its third party service providers services ("DRYOUT Services") (collectively "Products") to Brand Partner.

 

 

1. ACCEPTANCE OF PURCHASE ORDERS

Acceptance: Brand Partner accepts these Terms and Conditions through any of the following, whichever occurs first: (a) Brand Partner and DRYOUT execute a DRYOUT Brand Partner Order Form incorporating these Terms and Conditions, (b) Brand Partner submits a purchase order, whether electronically or in writing ("Order") to DRYOUT regardless of whether the purchase order is completely or partially fulfilled, rejected, modified or cancelled; (c) Brand Partner provides written acknowledgment; (d) Brand Partner accepts any shipment of any Products; or (e) Brand Partner performs any other act or expression of acceptance. All Orders are subject to DRYOUT acceptance, which may occur in writing or execution of the Order. Acceptance is expressly limited to these Terms and Conditions in their entirety without addition, modification or exception. Except as specifically agreed to by DRYOUT in writing, DRYOUT rejects any terms, conditions, or proposals submitted by Brand Partner (whether oral or in writing) which are inconsistent with or in addition to these Terms and Conditions. DRYOUT's silence or failure to respond to any subsequent or different term, condition, or proposal shall not be deemed to be DRYOUT's acceptance.  

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Quotations: Quotes from DRYOUT are applicable for the period specified in the quote. Unless otherwise agreed to in writing by DRYOUT, quotes are invitations to tender and are subject to change at any time without notice. All information relating to DRYOUT pricing is proprietary and confidential and Brand Partner will keep such information confidential. DRYOUT quotes are based upon information provided by the Brand Partner. 

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Orders: DRYOUT reserves the right to schedule and reschedule any Order, upon notice to Brand Partner, at DRYOUT’s reasonable discretion, and to decline any order for any reason in DRYOUT’s sole discretion. Brand Partner may not change, cancel, or reschedule Orders for Products without DRYOUT's prior written consent. 

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2. DELIVERY

Shipping Policy: Unless otherwise agreed in writing, DRYOUT will deliver or arrange to deliver the Products in accordance with DRYOUT's shipping policy in effect on the date of shipment or if drop-shipped by the Vendor from a Vendor location, in accordance with the Vendor’s applicable shipping policy. 

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Domestic: For all domestic transactions, including drop shipments, title and all risk of loss or damage to the Products, shall pass to Brand Partner upon delivery to the carrier (FCA Origin (Incoterms 2020)). If Brand Partner requests special shipping or handling (including expedited shipment, third-party billing, freight collect, or special routing or packing), Brand Partner shall be responsible for all freight, insurance and handling costs as well for filing claims and following up with the carrier in the event the shipment is damaged, lost, diverted, or delayed (not just for special requests, but for all shipments including special requests).  DRYOUT will not be subject to any non-compliance penalties or charges related to Brand Partner’s vendor compliance requirements, including but not limited to any shipping, packaging, routing or delivery requirements.  

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Delivery Information: Delivery is subject to DRYOUT's receipt of all necessary information and documentation from Brand Partner including all import certificates, exemption or resale certificates, licenses, and other documents required from Brand Partner for export of the Product. Brand Partner shall notify DRYOUT no later than five (5) days from invoice date of any claimed shortages or rejections of delivery, with the exception of deliveries that reveal visible external shipping damage which must be refused immediately upon delivery by the carrier. Brand Partner shall provide such notice in writing and with reasonable detail, stating the grounds for any such rejection. Brand Partner's failure to give such notice within the time specified is deemed an acceptance in full of any such delivery. DRYOUT shall not be liable for any shipment delays caused by events outside of DRYOUT’s control. 

 

3. DRYOUT SERVICES 

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Limited DRYOUT Services Warranty and Exclusive Remedy: DRYOUT warrants that DRYOUT Services will be performed in a reasonable and workmanlike manner. To the extent permitted by law, DRYOUT makes no other warranty, express or implied, such as warranty of merchantability, fitness for purpose or non-infringement. DRYOUT DISCLAIMS ANY AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, STATUTORY OR OTHERWISE. IN PARTICULAR, DRYOUT DOES NOT WARRANT THAT ANY WEBSITES OR PARTNER PORTALS PROVIDED BY DRYOUT IS UNINTERRUPTED OR ERROR-FREE. THIS SECTION STATES DRYOUT'S ENTIRE LIABILITY FOR WARRANTY CLAIMS FOR DRYOUT SERVICES. BRAND PARTNER MUST NOTIFY DRYOUT IN WRITING OF ANY ALLEGED BREACH OF WARRANTY NO LATER THAN THIRTY (30) DAYS AFTER COMPLETION OF THE APPLICABLE DRYOUT SERVICES. Brand Partner's sole remedies for breach of this limited warranty are, at DRYOUT's sole discretion, to: (i) re-perform the DRYOUT Services or (ii) refund the portion of the fees paid by Brand Partner that relate to the non-conforming DRYOUT Services.

 

4. PRICE AND PAYMENT​

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Additional Fees: DRYOUT's prices stated on invoices and quotations are for the Products only. Dryout’s quotations will include an estimate for applicable federal, state, provincial, municipal and other government taxes (such as sales, use, value-added, GST, provincial sales tax, and similar taxes) as applicable, as well as import or customs duties, license fees, freight (except as otherwise provided in DRYOUT’s shipping policy) and any other similar charges, however designated or levied on the sale or delivery of the Products or measured by the purchase price paid for the Products ("Additional Fees"). Brand Partner is responsible for all actual Additional Fees. DRYOUT shall invoice Brand Partner for all taxes applicable to sales of the Products, itemized by type and jurisdiction, which DRYOUT is required by law to collect from Brand Partner. Exemption certificates must be presented to DRYOUT prior to shipment if they are to be honored. Upon Brand Partner's request, DRYOUT will provide Brand Partner with sufficient documentation to enable Brand Partner to complete any necessary tax filings or claim any applicable tax credits for amounts paid to DRYOUT. If applicable law requires Brand Partner to deduct any amount from the amounts to be paid to DRYOUT due to withholding taxes or any other taxes or levies of any kind, Brand Partner shall pay all such additional amounts so that the net amounts received by DRYOUT are the amounts specified on the invoice. To the extent that any withholding tax is payable, DRYOUT and Brand Partner shall mutually collaborate and provide any and all assistance reasonably requested to obtain the benefits of any applicable tax treaty between the country where the DRYOUT entity that accepted Brand Partner Order is located and the applicable jurisdiction where the withholding tax applied.

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Payment Terms: Payment is due as stated on DRYOUT's invoice without offset or deduction for withholding taxes or any other fees. All payment information must match Brand Partner’s account and authorized payment source.  If Brand Partner elects to use a third-party payment processor to remit the payment, Brand Partner explicitly agrees that all payment processing and/or transaction fees (if any) shall be paid by the Brand Partner. Unless otherwise specifically agreed to by DRYOUT in writing, DRYOUT does not offer price protection. 

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All unpaid invoices will bear interest at an amount equal to one and one-half percent (1.5%) of the outstanding balance per month (or the maximum rate of interest allowed to be contracted for by law, whichever is less), starting on the date payment is due. Brand Partner's failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, cancellation of Orders, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods, and termination of any one or more sales agreements. 

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DRYOUT may apply payments submitted by Brand Partner to any of Brand Partner's accounts. Brand Partner shall not deduct any amounts from any DRYOUT invoice without DRYOUT’s express written authorization, which shall be granted by DRYOUT in its sole discretion and upon Brand Partner providing all requested supporting documentation.

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Collections: If DRYOUT engages an attorney or collection agency for the purpose of collection or enforcing DRYOUT's security interest in the Products, with or without litigation, Brand Partner shall pay any and all associated costs, including and without limitation, attorneys' fees and costs (whether incurred prior to, during, or subsequent to trial), collection, bankruptcy, or other creditor's rights proceedings. DRYOUT reserves the right to effect a recoupment, to set off of any funds due at any time to Brand Partner from DRYOUT, and to set off any amounts against amounts owed by Brand Partner to DRYOUT.

 

Currency: All quotations from DRYOUT and payments to DRYOUT shall be made in U.S. Dollars. 

 

5. RETURNS

 

Returns: All Product returns are subject to DRYOUT's then-applicable return policies. All Orders that are identified by DRYOUT as non-standard or "NCNR" are non-cancelable and non-returnable. If DRYOUT issues a return authorization to Brand Partner allowing Brand Partner to return Product to DRYOUT, Brand Partner will deliver the Product to DRYOUT's specified address and Brand Partner shall bear Additional Fees designated or levied, on any replacement Product to be shipped by DRYOUT to Brand Partner. If DRYOUT determines such Products are not eligible for return, DRYOUT will, at its sole discretion, send such Products back to Brand Partner on freight collect basis or hold such Products (at Brand Partner's expense) for Brand Partner's collection and on Brand Partner's account. The right to return defective Products as set forth herein shall constitute DRYOUT's sole liability and Brand Partner's exclusive remedy in connection with any claim of any kind relating to the quality, condition, or performance of any Product, whether such claim is based upon breach of contract, warranty, negligence or other tort, breach of any statutory duty, indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose or otherwise.

Packaging and Labeling of Dangerous Goods: When returning dangerous goods to DRYOUT, Brand Partner shall package, mark and label such dangerous goods according to local and global regulations for transport (such as IATA, IMDG, DOT, ADR). Dangerous goods include, but are not limited to, lithium batteries, magnetic materials, aerosols or pressurized gas, and other materials that can pose a risk to property and life.

 

6. DISCLAIMER OF WARRANTIES

 

Disclaimer of Warranties: Brand Partner acknowledges that DRYOUT is not the manufacturer of the Products that are being provided pursuant to this Agreement. Notwithstanding any right to return defective products under DRYOUT's limited Services Warranty as specified in Section 3 and the then-applicable Return Policy as specified in Section 5, DRYOUT makes no representations or warranties of any kind with respect to the Products, including but not limited to Product information. DRYOUT HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. DRYOUT WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST, OR EXPENSE FOR BREACH OF WARRANTY. Except for the limited DRYOUT Services Warranty as specified in Section 3, any product warranties applicable to the Products shall be provided by the Product manufacturer. Brand Partner shall not make any representations and warranties on behalf of DRYOUT or the Product manufacturer.

 

7. LIMITATION OF LIABILITY

 

Limitation of Liability: SUBJECT TO THE LIMITATIONS OF SECTIONS 3, 5 AND 6, DRYOUT SHALL NOT BE LIABLE TO BRAND PARTNER, BRAND PARTNER’S CUSTOMER OR END USER, OR ANY OTHER PARTY FOR ANY LOSS, DAMAGE, OR INJURY THAT RESULTS FROM THE USE OR APPLICATION BY SUCH PARTY OF PRODUCTS DELIVERED TO BRAND PARTNER. DRYOUT'S LIABILITY FOR DAMAGES ARISING UNDER THESE TERMS AND CONDITIONS, OR WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL: (1) BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES, AND (2) WILL NOT EXCEED THE NET AMOUNT PAID TO DRYOUT BY BRAND PARTNER FOR THE PRODUCT THAT IS THE SUBJECT OF THE CLAIM. DRYOUT SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS AND CONDITIONS OR THE PRODUCT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA, COSTS OF COVER, OR FOR ANY DAMAGES OR SUMS PAID BY BRAND PARTNER TO THIRD PARTIES, EVEN IF DRYOUT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY APPLIES WHETHER ANY CLAIM IS BASED UPON BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.

 

8. DRYOUT PARTNER PORTAL (“DPP”)

 

DRYOUT PARTNER PORTAL:  DPP is an online platform offered by DRYOUT. Brand Partner’s use of the DPP is subject to these Terms and Conditions and any additional DPP website terms of use. All data and other information available on DPP are proprietary, confidential and the sole property of DRYOUT or third parties licensing such information to DRYOUT.

Brand Use Marketing Guidelines. Brand Partner agrees to comply at all times with DRYOUT’s Brand Use Marketing Guidelines, as updated from time to time and available within the DRYOUT Brand Partner Portal (“Guidelines”). Any use of DRYOUT’s name, logos, trademarks, or other brand assets by the Brand Partner must be in strict accordance with these Guidelines. Failure to adhere to the Guidelines may result in suspension or termination of the Brand Partner’s rights to use such materials, in addition to any other remedies available to DRYOUT. 

 

9. DESIGN SERVICES, AND OTHER RELATED REQUIREMENTS

 

Optional Design Services. Use of DRYOUT’s design services is optional and offered at the Brand Partner’s discretion. If the Brand Partner orders design services from DRYOUT, such services shall be limited to a maximum of three (3) design rounds per individual product SKU, commencing on the date of the first design meeting between Brand Partner and DRYOUT and ending once Brand Partner agrees to a final tech pack for DRYOUT to submit for manufacturing (the “Design Process”). A single design round shall begin with a collaborative design meeting between DRYOUT and Brand Partner and shall end with the creation of a tech pack. The parties intend that the design process shall be completed in sufficiently reasonable time to allow for a firm order for the custom products incorporating the final approved design within twelve (12) months of the commencement of the Design Process. 

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Ownership of Custom Designs. Ownership of any designs, specifications, or custom features developed by DRYOUT as part of the Design Process shall remain with DRYOUT until such time as the Brand Partner has (a) placed a valid order for the corresponding products or  (b) paid the Design Fees specified on the DRYOUT Order Form in full ll. Upon fulfillment of either of these conditions, ownership of the final product design, except for any DRYOUT trademarks as incorporated, shall transfer to the Brand Partner. DRYOUT retains all rights to any preliminary or unused design concepts not incorporated into the final order.

Trademark and Logo License.

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Subject to the Brand Partner’s continued compliance with these Terms and Conditions, DRYOUT hereby grants to the Brand Partner a limited, world-wide, non-exclusive, non-transferable, non-sublicensable license to use DRYOUT’s trademarks, logos, and brand elements (collectively, the “Marks”) solely as incorporated into DRYOUT’s products as designed and/or delivered to the Brand Partner, and for marketing purposes solely in accordance with DRYOUT’s Guidelines available within the Brand Partner Portal.

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This license does not permit any standalone use of the Marks, nor any use outside the context of DRYOUT’s products. Any unauthorized use of the Marks, any use in violation of the Guidelines, or any breach of these Terms and Conditions shall result in the immediate termination of this license, without prejudice to any other rights or remedies available to DRYOUT.

DRYOUT reserves the right to revoke this license for non-compliance, misuse, or reputational risk. No rights to DRYOUT's technology or patent portfolio are granted. Brand Partner agrees not to reproduce, reverse engineer, or otherwise exploit DRYOUT's proprietary technology or intellectual property.

Product Claims and Publicity.

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Brand Partner shall not make any false, misleading, or unsubstantiated statements or claims regarding the DRYOUT products, their performance, characteristics, or intended use. Brand Partner further agrees not to make any public statements, marketing claims, or other representations about DRYOUT or its products that are not expressly authorized by DRYOUT or permitted under by the Guidelines available within the Brand Partner Portal.

In connection with Brand Partner’s status as a DRYOUT partner or customer, the Brand Partner agrees to collaborate in good faith with DRYOUT in support of DRYOUT’s preparation and issuance of  a mutually approved press release or public announcement regarding the partnership. Such collaboration shall include providing reasonable assistance, quotes, and approvals necessary to support the timely publication of the announcement, subject to DRYOUT’s final approval of the content and timing of the release.

 

10. BRAND PARTNER'S OBLIGATIONS

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Compliance with Laws: Brand Partner represents and warrants that it will comply with all applicable laws, codes, directives, ordinances, and regulations. Brand Partner further acknowledges and agrees that the Products are subject to the export control laws and regulations of the United States, including, but not limited to, the Export Administration Regulations, and sanctions regimes of the U.S. Department of Treasury, Office of Foreign Asset Controls. Brand Partner shall not, without prior U.S. government authorization, export, re-export, or transfer any Products, either directly or indirectly, to any country subject to a U.S. trade embargo, to any resident or national of any such country, or to any person or entity listed on the "Entity List" or "Denied Persons List" maintained by the U.S. Department of Commerce or the list of "Specifically Designated Nationals and Blocked Persons" maintained by the U.S. Department of Treasury. In addition, Brand Partner may not export, re-export, or transfer Products to an end-user engaged in activities related to weapons of mass destruction. Such activities include, but are not necessarily limited to, activities related to the design, development, production, or use of: (1) nuclear materials, nuclear facilities, or nuclear weapons; (2) UAS, UAV, and USVs (3) missiles or support of missiles projects; (4) chemical or biological weapons; and 5) life support systems, human implantation, or any other application where Product failure could lead to loss of life or property damage.

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Anti-Bribery Anti-Corruption: Each party agrees it has not and will not in the future, directly or indirectly, offer or pay or authorize the offer or payment of, any money or anything of value in an effort to influence any government official or any other person in order to improperly obtain or retain business or gain an improper business advantage, and has not accepted, and will not accept in the future, any such payment.

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Records: Brand Partner shall keep complete accurate books and records for seven (7) years from the date of the purchase or longer if required by applicable law. 

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Notices: All notices under these Terms and Conditions (collectively, “Notices”) must be in writing and shall be deemed to have been duly given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (with tracking and delivery confirmation); (c) on the date sent by email, with confirmation of transmission, if sent during normal business hours on a business day (and on the next business day if sent after normal business hours or on a non-business day); or (d) on the third business day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.

 

Notices to DRYOUT must be sent to:

ABSORBITS, INC. D.B.A. DRYOUT
1192 E. Draper Pkwy #223
Draper, UT 84020
Email: legal@dryout.com

 

Notices to the Brand Partner will be sent to the contact information provided by the Brand Partner at the time of registration, purchase, or as otherwise updated in writing. Each party may update its contact information for Notices by giving written notice to the other party in accordance with this clause.
 

Indemnification: Brand Partner shall indemnify, defend, and hold DRYOUT harmless from and against any and all liabilities, claims, losses, damages, costs, and expenses (including, without limitation, reasonable attorney’s fees and the costs of establishing rights to indemnification) arising out of or relating to: (i) any breach by Brand Partner of any warranty, representation, or covenant under these Terms and Conditions; (ii) any non-compliance by Brand Partner with these Terms and Conditions; (iii) any claim, demand, or action brought by Brand Partner’s customers, end users, or third parties alleging injury, damage, or loss, including but not limited to firearm-related use, weapon applications, or other safety-critical or hazardous applications of the goods; and (iv) any negligence, recklessness, or willful misconduct of Brand Partner, its employees, agents, contractors, or end users.
 

Insolvency:  If Brand Partner or its customer or end user becomes Insolvent (as defined below) or files for dissolution, Brand Partner shall remain fully liable to DRYOUT for all payments due under these Terms and Conditions. “Insolvent” or “Insolvency” shall mean that a party is unable to pay its debts as they come due, has filed for protection under a bankruptcy and insolvency act or has obtained relief for its debts in an assignment for the benefit of creditors.

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Non-Circumvention: By entering into this agreement and placing an order, the Brand Partner agrees not to circumvent, bypass, or attempt to circumvent DRYOUT in any current or future dealings with any third-party manufacturer, supplier, vendor, or other entity introduced or utilized by DRYOUT in connection with the Brand Partner’s product development, manufacturing, or commercialization efforts. This includes, but is not limited to, any manufacturer or supplier that has gained access to DRYOUT’s proprietary technology, processes, or know-how through the Brand Partner’s engagement with DRYOUT. The Brand Partner shall not, directly or indirectly, engage, contract with, or solicit such third parties for the purpose of manufacturing, developing, or selling products that incorporate or are derived from DRYOUT’s technology, processes, or confidential information, without the prior written consent of DRYOUT. This obligation shall remain in effect during the term of the Brand Partner’s relationship with DRYOUT and for a period of three (3) years following the termination or expiration of such relationship.

 

11. U.S. GOVERNMENT SALES

 

Product Sourcing Restrictions: Brand Partner has an affirmative duty to notify DRYOUT in writing during the quotation, request, and order process of any product sourcing restrictions, including the Trade Agreement Act ("TAA"), Buy American Act, or other sourcing restrictions that apply to the Products and can only claim such after expressly written approval/consent of DRYOUT.

 

Commercial Items: DRYOUT is a distributor of "Commercial Items" as defined in FAR 2.101. Accordingly, DRYOUT agrees only to the clauses in the Federal Acquisition Regulation ("FAR") and agency FAR supplements (as applicable based on the U.S. Government customer) that are explicitly required to be inserted in a subcontract for commercial items, as set forth in FAR 52.244-6(c)(1) or an agency FAR supplement. In accordance with FAR 12.211, Brand Partner will receive only those rights in technical data customarily provided to DRYOUT by the Vendors. By no means will this be interpreted as providing to Brand Partner unlimited rights in data, software, or intellectual property rights provided by the Vendor or any other third party. To the extent Brand Partner is not an Authorized GSA Reseller under these Terms and Conditions, DRYOUT specifically rejects the requirements of the: (i) Trade Agreements Act, FAR 52.225-5 or DFARS 252.225-7021; and (ii) the Buy American Act, FAR 52.225-1 or DFARS 252.225-7001 (the “Acts”). Both parties represent they are in compliance with Covered Telecommunications Equipment or Services FAR 52.204-25, and as applicable DFARS 252.204-7018. DRYOUT does not accept any Preference for Domestic Specialty Metals regulations unless the original equipment manufacturer expressly represents and warrants that the Products provided through DRYOUT are compliant.

 

12. GENERAL

 

Entire Agreement: These Terms and Conditions, along with (a) the terms and conditions on any DRYOUT invoice, (b) the terms and conditions of any other agreement signed by authorized representatives of both Brand Partner and DRYOUT, constitute the entire agreement of the parties with respect to all sales by DRYOUT to Brand Partner and supersedes any and all prior negotiations, representations and agreements, whether written or oral, between the parties. In the event of a conflict between these various terms and conditions, they will take effect in the following order of precedence: (1) any signed amendment or addendum to these Terms and Conditions; (2) the terms and conditions of DRYOUT’s quote or invoice; and (3) these Terms and Conditions.  

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Each party acknowledges that no representations, inducements, promises or agreements, orally or otherwise, have been made by any party. No other agreement, statement, or promise modifies these Terms and Conditions unless it is in writing and signed by both parties. Any DRYOUT waiver or default of one or more of these Terms and Conditions is not a waiver of the remaining Terms and Conditions or of any future defaults. No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of its rights.

 

Governing Law and Venue:

1. United States:  These Terms and Conditions and all contracts for the sale of the DRYOUT Products and services shall be governed and construed according to the laws of the State of Utah, notwithstanding any choice of law provisions. Any provision of these Terms and Conditions that is prohibited or unenforceable under the laws of the State of Utah shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these Terms and Conditions. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or validity thereof, shall be finally resolved by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect. The arbitration shall be conducted by a mutually agreed-upon number of arbitrators, provided that the number shall not exceed three (3). If the parties are unable to agree on the number of arbitrators within fifteen (15) days of the commencement of the arbitration, a single arbitrator shall be appointed by the AAA in accordance with its rules. The place of arbitration shall be Salt Lake County, Utah, and the proceedings shall be conducted in English. Judgment upon the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.  The prevailing party, as determined by the arbitrator(s), shall be entitled to recover its reasonable attorneys’ fees and costs from the losing party. The arbitrator(s) shall include such award of fees and costs in the final arbitration award. This clause shall survive termination or expiration of this Agreement. ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE.

Force Majeure: DRYOUT is not liable for failures to perform (including, without limitation, delays in delivery) due to causes beyond its reasonable control (for example, acts of nature, acts or omissions of Brand Partner, operational disruptions, man-made or natural disasters, acts of war or terrorism, government interference, epidemic medical crises, materials or Product shortages, strikes, criminal acts, delays in delivery or transportation, riot, unavailability of labor, fuel or power through normal commercial channels at customary and reasonable rates, failure or destruction of plant or equipment arising from any cause whatsoever, or transportation failures) 

 

Accurate Information: Brand Partner represents and warrants that the information provided in any documents to DRYOUT will be true and correct in all material respects and contains all information necessary so that the information is not materially misleading. Brand Partner acknowledges that DRYOUT is relying on the accuracy of the information provided by Brand Partner.

 

Assignment and Survival of Obligations: Brand Partner may not assign these Terms and Conditions without DRYOUT's prior written consent. DRYOUT may, without Brand Partner's consent, assign these Terms and Conditions, including all its amendments, attachments and addenda, and its rights and obligations to its successors, assigns or a purchaser of all or substantially all of its assets. All benefits of these Terms and Conditions will enure to the benefit of the assignee. All obligations under these Terms and Conditions that by their nature extend beyond termination, including without limitation all monetary obligations of either party to the other under these Terms and Conditions, will survive termination, remain in effect and bind all successors and assigns.

 

Independent Contractors. The parties will act as independent contractors in the performance of these Terms and Conditions and neither party shall act as agent for or partner of the other party.

 

Confidentiality. Each party acknowledges that during performance of its obligations pursuant to these Terms and Conditions, it may obtain certain information specifically marked as confidential or proprietary. Each party hereby agrees that all such information disclosed to it by the other party, its parent, affiliates, subsidiaries, whether before or after the effective date, shall be and was received in strict confidence, shall be used only for purposes of these Terms and Conditions, and shall not be disclosed without the prior written consent of the other party, except as may be necessary by reason of legal, accounting or regulatory requirements beyond either party's reasonable control. This confidentiality requirement shall survive for a period of five (5) years after the date of such disclosure.

 

Customer Data Use.  DRYOUT agrees to collect, process, and utilize Customer Data (as defined in the DRYOUT Privacy Policy) solely in accordance with its then-current Privacy Policy, which is incorporated herein by reference. https://www.dryout.com/privacy DRYOUT shall not use Customer Data for any purpose other than those expressly outlined in the Privacy Policy and shall implement reasonable measures to ensure such data is handled in compliance with applicable data protection laws. Any material changes to the Privacy Policy that materially affect the use of Customer Data shall be communicated to the Customer in advance, where required by law. 

As of: September 17, 2025