AND ALL OTHER WARRANTIES, REPRESENTATIONS, AND COVENANTS, EXPRESS OR
IMPLIED, STATUTORY, UNDER COMMON LAW OR OTHERWISE, AND SELLER DISCLAIMS ANY AND
ALL OTHER WARRANTIES, REPRESENTATIONS, AND COVENANTS, EXPRESS OR IMPLIED,
STATUTORY, UNDER COMMON LAW OR OTHERWISE.
(b) SELLER WARRANTS THAT THE SAND WILL COMPLY WITH THE SPECIFICATIONS IN
ALL MATERIAL RESPECTS AT THE TIME OF DELIVERY TO BUYER.
(c) CONSISTENT WITH SUBSECTION 1(a) ABOVE, EXCEPT TO THE EXTENT
(x) EXPRESSLY SET FORTH IN SUBSECTION 1(b) ABOVE OR (y) EXPRESSLY SET FORTH IN
THE AGREEMENT, THE SAND WILL BE SOLD, PURCHASED, AND ACCEPTED AS IS, WHERE IS,
WITH ALL FAULTS, AND WITHOUT ANY WARRANTY, REPRESENTATION, OR COVENANT, EXPRESS
OR IMPLIED, STATUTORY, COMMON LAW OR OTHERWISE AND, WITHOUT LIMITING THE
FOREGOING, THE SAND IS BEING SOLD, PURCHASED, AND ACCEPTED WITHOUT ANY
WARRANTIES REPRESENTATIONS, OR COVENANTS, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, THAT MAY EXIST UNDER APPLICABLE LAW NOW OR HEREAFTER IN EFFECT,
RELATING TO:
(i) MERCHANTABILITY;
(ii) THE (A) CONDITION, QUANTITY OR QUALITY (EXCEPT IN EACH CASE TO
THE EXTENT EXPRESSLY SET FORTH IN THE AGREEMENT) OR (B) FITNESS FOR A PARTICULAR
PURPOSE (INCLUDING FOR OIL AND GAS STIMULATION OPERATIONS) OR FOR ANY USE OR
PURPOSE; OR
(iii) CONFORMITY TO MODELS OR SAMPLES OF MATERIAL.
2. Buyer's Assumption of Risk of Use, and Buyer's Covenants Regarding Use of
Sand.
(a) Buyer acknowledges and represents that: (i) it has tested samples of
the Sand to the extent it deems necessary or appropriate, (ii) it is satisfied
with the Sand for its use for the purpose for which it is purchasing the Sand,
and (iii) it understands and assumes the risk that the Sand may not function as
Buyer desires on any particular property with respect to which it applies the
Sand.
(b) Consistent with subsection 2(a) and with Seller's disclaimers under
Section 14 of the Agreement and this Exhibit C, BUYER ASSUMES ALL RISKS THAT THE
SAND MAY NOT FUNCTION AS BUYER DESIRES WITH REGARD TO ITS USE OF OR INTENDED USE
OF THE SAND FOR THE PURPOSE FOR WHICH IT IS BUYING THE SAND.
34
(c) (i) THE SAND, AS DELIVERED OR AS APPLIED, MAY CONTAIN RESPIRABLE
SILICA. SEE THE MANUFACTURER'S MATERIAL SAFETY DATA SHEET, DO NOT BREATHE THE
DUST FROM THE SAND, AND USE THE SAND SOLELY FOR THE LIMITED PURPOSE FOR WHICH IT
IS BEING SOLD HEREUNDER.
(ii) THE INHALATION OF SILICA DUST CONTAINED IN THE SAND, OR CREATED
BY THE USE OF THE SAND, MAY CAUSE SEVERE IRREVERSIBLE LUNG DAMAGE AND PREMATURE
DEATH, AND SOME MEDICAL REPORTS INDICATE SUCH INHALATION MAY CAUSE LUNG CANCER,
DEBILITATING ARTHRITIS, AND SKIN AND EYE IRRITATION AMONG OTHER THINGS.
(iii) PRODUCTS CONTAINING SILICA DUST SHOULD NOT BE USED WITHOUT THE
ACCOMPANYING USE OF NIOSH/MSHA APPROVED RESPIRATORY PROTECTIVE EQUIPMENT.
(iv) Buyer acknowledges that it is well informed and familiar with the
risks posed by exposure to products containing silica including the Sand and
with employee and environmental health and safety issues and safeguards related
to such risks.
(v) Buyer shall establish and maintain a