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TERMS AND CONDITIONS OF SALE

Fruvac Ltd

EXCEPT AS OTHERWISE AGREED IN WRITING, THESE TERMS AND CONDITIONS GOVERN ALL OUR CONTRACTS TO THE EXCLUSION OF OTHER TERMS AND CONDITIONS. OUR QUOTATIONS AND ESTIMATES ARE NOT OFFERS CAPABLE OF ACCEPTANCE BY YOU, AND ANY ORDER PLACED BY YOU WILL ONLY BE ACCEPTED BY OUR WRITTEN CONFIRMATION OF SUCH ORDER.

GENERAL PROVISIONS

  1. The definition of terms used, interpretation of this agreement and rights ofparties hereto shall be construed under and governed by the laws of theProvince of Ontario.“Seller” when used herein means Fruvac Ltd.“Purchaser”whenusedhereinmeanstheperson,firmorcorporationtowhomthis quotation is addressed. “Equipment” or “Products” means those articles,supplies, drawings, data or other property/services described herein.
  2. All quotations are for immediate acceptance and subject to change orwithdrawal without notice before an order is acknowledged by Seller. Thisproposalshallnotbecomeeffectiveuntilacceptedbyanauthorizedemployeeof the Seller.This proposal cannot be changed or varied by any verbalagreement.Ifthisproposalisdeemedtoconstituteanoffer,itmaybeacceptedonly on terms set forth in this proposal, including, without limitation, theseTerms and Conditions.If this proposal constitutes an acceptance of an offer,such acceptance is expressly conditioned on Purchaser’s assent solely to theterms ofproposal, including, without limitation, these Terms and Conditions.An acceptance of any part of the Equipment or services covered hereundershallbedeemedtoconstitutesuchassent.Anyadditionaland/ordifferenttermsandconditionsproposedbyPurchaserand/oranyattemptbyPurchasertovaryanyofthesetermsandconditionsisamaterialalterationandisherebyobjectedto and rejected.
  3. Unless otherwise agreed by Seller in writing, Seller’s prices are subject tochange without advance notice at any time prior to order acknowledgment.Seller reserves the right to adjust the invoice price, after the price is quotedand/oracknowledged,totakeaccountofanymaterialvariationinSeller’scostsbeyond Seller’s reasonable control since the date of the quotation or (if noquotation is issued) the order acknowledgement, and the invoice so adjustedshall bepayable as ifthepricesetout therein weretheoriginal contract price.AllsalesaresubjecttoincreasewithoutnotificationbytheamountofanysalesorexcisetaxleviedorchargedbyanygovernmentalagencyandaresubjecttoanypriceadjustmentnecessitatedbySeller’scompliancewithanygovernmentaction.
  4. All sales under all orders and these terms and conditions are subject to Sellerand/or Government priorities, laws and regulations, now or hereafterestablished.
  5. The Seller reserves the right to change, discontinue or modify the design andconstructionofanyproductortosubstitutematerialequaltoorsuperiortothatoriginally specified, without notice to the Purchaser.
  6. All claims by Purchaser for shortages in a shipment of Equipment orEquipmentdamagedintransitmustbemadeagainstthecarrier.AllclaimsbyPurchaser against Seller for nonconforming Equipment and claims forshortages in ashipmentordamagedEquipment (otherthan claims tobemadeagainstthecarrier)mustbemadeinwritingtoSellerwithinten(10)daysafterreceiptofshipmentorthirty(30)daysafterdateofshipment,whicheveroccursfirst, or they are waived.
  7. Any action for breach of the contract hereunder must be commenced withinoneyearafterthecauseofactionhasaccrued.Onlyvariationsormodificationstothecontractwhich aremadeinwritingsignedby SellerandPurchasershallbe enforceable. Any failure by Seller to enforce its rights under this contractwill not be deemed a waiver of such rights.
  8. AlldisputesarisingunderorinconnectionwiththisContractshallberesolvedby (a) good-faith negotiations by knowledgeable, responsible representativesof each party who are fully authorized to settle any such dispute,or (b) in theeventsuchnegotiationsdonotresolvesuchdispute,bindingarbitrationheldinChicago,Illinois,byasinglearbitratorpursuanttotheCommercialArbitrationRules oftheAmerican Arbitration Association.Each party shall bearits owncosts of these procedures; the parties shall equally split the fees of thearbitration and the arbitrator.Notwithstanding the above, either party shallhavetherighttoseek atemporary restraining orderoran injunction related tothe purposes of this Contract, to compel compliance with confidentialityobligations, or to file suit to compel compliance with this dispute resolutionprocess.
  9. Purchasermaynotassign,novateorotherwisetransferitsrightsorobligationsunder this contract without Seller’s prior written consent, and any attempt todo so shall be null and void and of no effect.

CANCELLATION

Purchaser cannot cancel orders under any circumstances without Purchaser first reaching an agreement in writing with Seller covering all Seller’s damages. At a minimum, such an agreement must reimburse the Seller for all expenses incurred (including but not limited to costs of purchased materials), engineering costs, and a reasonable mark-up to cover overhead and profit; cancellation charges shall be, at a minimum, at least 15% of the purchase price of the goods covered by the cancelled orders.

ENGINEERING CRITERIA

The Equipment furnished by Seller are sophisticated engineering products; accordingly, Purchaser undertakes:

  1. Thatithasprovidedandwillpromptlyprovidealltheinformationreasonablynecessary toenableSeller to (i) evaluatethe requirements forperforming and

(ii) perform the Contract, and that all such information is full and accurate;

  1. Thatallpremises,plant,engineeringsupport,spareparts,connectedpipeworkand machinery and inputs that it is required to provide for the design,engineering,installation,testinganduseoftheProductsarefitfortheirpurposeand of good engineering quality;
  2. Fully to co-operate with Seller in the design, engineering, installation, testingand use of the Products;
  3. To usethe Products forthe intended purposeonly and in accordancewith theProduct literature; and
  4. Not under any circumstances, to use any unapproved spare part, connectedmachinery, serviceor repairorusethe Products in any manner as may renderthe Products dangerous and agrees that any breach of these negative criteriawill negate all specific and implied conditions and obligations on the part ofSeller relating to the quality of the Products.

Purchaser further agrees that it will be liable to Seller for any costs, expenses and losses it suffers by reason of any breach of these undertakings.

DRAWINGS, DESIGNS AND CONFIDENTIALITY

  1. All of Seller’s specifications, designs, drawings, indications of physical,chemicalandelectronicpropertiesandindicationsofinletpressureorvacuum,pressure output and power consumptions (“the Designs”) are made in goodfaithandareapproximateindicationsonlyandarenotbinding indetailunlessPurchaser has specified in writing a particular indication upon which he isrelyingandSellershallbeentitledtovarythesameand/ortocorrecterrorsandomissions provided the Products remain in substantial conformity with thecontractualrequirements.
  2. The Designs (including all copyright, design right and other intellectualproperty in them) shall as between the parties be the property of Seller; andPurchaser is not entitled to make any use of the Designs other than for thepurpose of this Contract.
  3. Any inventions, modifications, improvements, techniques or know-howaffecting the Products made or gained in the course of performing thisContract, shall belong to Seller absolutely.
  4. Neither party shall disclose to third parties or use for its own purposes anyconfidential information or trade secrets of the other party.

 

SHIPMENT, PAYMENT AND CREDIT

  1. Credit Terms of Payment: A. Domestic – Net thirty (30) days from date ofinvoice.Delinquentaccountsshallbearinterestat18%perannumthereafter,untilpaid.Saidinterestrateshallbereducedtothemaximumpermissiblerateinanystatehavinglawswhichsorequire.B.International–Unlessotherwiseagreed to by the Seller’s Manager of Credit and Collection, payment shall bein U.S. Funds by wiretransferorirrevocable Letterof Credit, confirmed by amajorU.S.Bank.Inaddition tosuchlatepaymentcharges,Sellermay addtothe amount past due any costs associated with collection thereof, includingreasonable attorneys’ fees.
  2. Seller may, in its sole discretion, accept payment for Products by cash inadvance or by money-down with scheduled progress payments.
  3. Shipments and deliveries shall be subject to approval of Seller’s CreditDepartment.IfPurchaserfailstofulfillthetermsofpayment,orifatanytimebefore payment in full is made (whether ornot payment is yet due) a petitionis presented or resolution passed for the winding up or bankruptcy ofPurchaser, orin the event oftheappointment ofa receiveroradministratorofPurchaser’sbusiness,Sellermaydeferfurthershipmentoratitsoption,cancelthe unshipped balance.Seller reserves the right previous to making anyshipments, to require from Purchaser satisfactory security for performance ofPurchaser’sobligation.NofailureofSellertoexerciseanyrightaccruingfromany default of Purchase shall impair Seller’s right in case of any shipmentdefault of Purchaser.
  4. All sales are Ex Works (EXW, Incoterms 2010) Seller’s plant unpacked andsubjecttoVATorothertaxes(unlessspecificallystatedtothecontract).Sellermay, in its discretion, select the carrier unless specified in advance byPurchaser.
  5. Whileexpecteddatesofdeliveryofgoodsaregiveningoodfaith,thesamearenot ofthe essence oforin any way terms ofthe contract orrepresentations offact.All shipping dates given are approximate, and while effort is made tomaintain schedules, Sellerwillnot beliable fordamages on account ofdelay.

In case of delay by Purchaser in furnishing complete

schedules or information, delivery dates may be extended for a reasonable time depending on factory conditions. The Seller shall not be responsible for reasonable or excusable delays nor shall the Purchaser refuse to accept delivery

because of any such delays. Excusable delays include, without limitation, delays resulting from accidents, fires, floods, severe weather or other acts of God, strike, lockout or other labor difficulties, embargoes, government controls or other forms of intervention, inability to obtain labor, materials or services and other causes beyond Seller’s control. If there is a scarcity in any of its products or goods, Seller will allocate its available supply in its sole discretion.

  1. Title to the Products shall transfer to the Purchaser on the earlier of fullpaymentanddelivery;provided,however,thatintheeventdeliveryispriortofullpayment,theSellershall retain asecurityinterestintheProductsuntil theSellerreceives payment in full.Pendingpayment ofthefull purchasepriceofthe Equipment or parts furnished by Seller, Purchaser shall at all times keepthe Equipment or parts comprehensively insured against loss or damage byaccident,fire,theftandotherrisks usually coveredbyinsuranceinthetypeofbusiness carried on by Purchaserin an amount at least equal to thebalance ofthe price for the same from time to time remaining outstanding. In addition,thePurchaserundertakesnottochargebywayofsecurityanyoftheProductsthat remain the collateral of the Seller.
  2. IntheeventofCancellationinaccordancewiththeprovisionshereof,orintheevent of non-payment (in full or in part) for the Equipment by the due date,PurchaserherebyirrevocablylicensesSeller(insofarasitisable)toenteruponany premises to repossess the Equipment.

INDEMNITY

Purchaser will indemnify, defend and hold Seller, its affiliated companies and their respective directors, officers, employees and agents harmless from any loss, claim, cost, expense or damage (including payment of reasonable attorneys’ fees) suffered or incurred by any of them and/or for which any of them may be liable to any third party due to, arising from or in connection with, directly or indirectly:

 

LIABILITY

Seller’s total liability for any and all claims, damages, losses and injuries arising out of or relating to Seller’s performance or breach of any term herein shall not exceed the purchase price of the Equipment. IN NO EVENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL SELLER BE LIABLE FOR LIQUIDATED, INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EXPENSES OR COSTS, INCLUDING BUT NOT LIMITED TO: (1) LOSS OF PROFITS, BUSINESS OR GOODWILL; (2) LOSS OF USE OF EQUIPMENT OR FACILITIES; OR (3) LOSS RESULTING FROM UNUSABLE MACHINERY OR FACILITY DOWNTIME, HOWSOEVER CAUSED AND EVEN IF THE POTENTIAL FOR SUCH DAMAGES WAS DISCLOSED AND/OR KNOWN.

 

DISCLAIMER OF WARRANTY

SELLER DOES NOT WARRANT THE MERCHANTABILITY OF ITS PRODUCTS AND DOES NOT WARRANT THE FITNESS OF THE PRODUCTS FOR A PARTICULAR PURPOSE. SELLER DOES NOT MAKE, AND HEREBY DISCLAIMS AND EXLUDES, ANY WARRANTY, EXPRESS OR IMPLIED, OTHER THAN THE WARRANTY CONTAINED HEREIN. THERE ARE NO WARRANTIES EXPRESS OR IMPLIED BEYOND THAT WHICH IS DESCRIBED BELOW.

WARRANTY OF GOODS MANUFACTURED BY SELLER

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    1. ExcepttotheextentSellerspecifies anotherwarrantyperiod inwriting,Sellerwarrants products and parts manufactured by it and sold hereunder to be freefrommaterialdefectin material and workmanship foraperiod oftwenty-four

    (24) months from date of startup or thirty (30) months from date of shipment whichever occurs sooner, and for end plates and casted housings only, for the lifetime of the product (the “Warranty Period”) provided, however, that Seller’s sole responsibility under this warranty shall be to either repair or replace at Seller’s option, any part which fails during the Warranty Period because of a defect in workmanship and material. Such replacement parts shall be provided at no cost to Purchaser, at the business establishment of Seller during regular working hours. Seller’s obligation under this warranty shall not include any transportation charges, cost of installation, duty, taxes or any other charges whatsoever.

    1. Sellershallbeundernoliabilityforbreachofthewarrantysetforthherein:

    (i) unless the Equipment has been properly installed, used, maintained and serviced; (ii) unless Purchaser has promptly informed Seller in writing of the defect alleged within the Warranty Period and within 7 days of the discovery

    thereof; (iii) with respect to wearing and consumable parts; (iv) if Purchaser places Products in long-term storage and fails to perform proper long-term storage preparations per Seller’s instructions; and/or (v) to Equipment or component parts or accessories thereof not manufactured by Seller.

    1. Seller makes no representation regarding compliance with any state,provincial,orlocallaw,rules,regulations,buildingcodeorordinancerelatingto the installation or operation of the Equipment.
    2. If the Purchaser informs the Seller of a defect after the Warranty Period hasexpired, then Seller may offer advice (free of charge) and may offer repairorreplacement at Purchaser’s expense. Any dispute as to whether a defect iscovered by the Warranty shall be immediately referred to an expert to beagreedbySellerandPurchaserwhosedecisionshallbefinalandbindingupontheparties.
    3. TherearenothirdpartybeneficiariesoftheWarrantygrantedbySeller.

     

    WARRANTY OF OTHER MANUFACTURER’S PRODUCTS

    Seller makes no warranties or representations of any kind whatsoever, either expressed, implied or statutory on any component parts or accessories sold hereunder not manufactured by Seller. Seller hereby extends the manufacturer’s warranty or guaranties, if any, given to Seller by the manufacturer of said component parts and accessories, but only to the extent Seller is able to enforce such warranty or guaranties. Seller does not guaranty warranties of other manufacturers’ products. Claims under any manufacturer’s warranty shall be made in accordance with the manufacturer’s requirements regarding the return, repair or replacement of the goods. Seller agrees to use its best efforts and cooperate with Purchaser in enforcing claims against manufacturer(s) for defects that may occur.

    Seller has not authorized any party to make any representation or warranty other than the above warranty statements.

     

    CONFLICTING LAW

    Some jurisdictions provide rights in addition to those listed above, or do not allow the exclusion or limitation of implied warranties, or liability for incidental or consequential damages. If any provision or part of a provision of these terms is found to be illegal, invalid or unenforceable under any applicable law, such provision or part of a provision shall, insofar as it is severable from the remaining terms, be deemed omitted from these terms and shall in no way affect the legality, validity or enforceability of the remaining terms.

    SPECIAL PROVISIONS

    1. The Products nor the parts sold hereunder are designed or manufactured foruse in or with any atomic installation or activity.If the Purchaser or theultimate user of the Products or parts intends to use the Products or parts insuchaninstallationoractivity,theSeller’sTerms forNuclearSalesshallbe apart of this Contract.The Seller will furnish the Purchaser with a copy of itsTerms for Nuclear Sales upon request.
    2. Purchaser understands and agrees that the Products may be subject to exportand other foreign trade controls restricting resales and/or transfers to othercountries and parties, including, but not limited to, licensing requirementsunder applicable laws and regulations of the United States (together, “TradeControl Laws”).Purchaser shall not export, re-export, transfer, or otherwisedisposeoftheProductsdirectlyorindirectly,exceptaspermittedbyapplicableTrade Control Laws.Purchaser shall not do anything that would cause theSeller or its affiliates to be in breach of applicable Trade Control Laws.Furthermore, Purchaser shall protect, indemnify and hold harmless the Sellerand its affiliates from any fines, damages, costs, losses, liabilities, penalties,andexpensesincurredbytheSellerasaresultofPurchaser’sfailuretocomplywith this clause.
    3. Data Privacy.Purchaser understands and agrees that certain of the Productsinclude technology that allows Seller to collect technical and product-relatedinformationregardingsuchProductsandtoconductremotediagnosticstestingof such Products.This technology allows Seller to better serve and assistPurchaserin theevent such Products need to berepaired,and to maintain andimprove the Products. Purchaser agrees to grant and hereby grants Seller atransferable,sub-licensable,non-exclusive,non-revocable,worldwiderighttoaccess and usethe data collected and processed by thetechnology forSeller'sbusinesspurposes,includinganalysis,research,anddevelopment.Inaddition,Seller may sharesuch information with its affiliates,subsidiaries, and serviceproviders;andwiththirdpartiesbutonlyinanaggregate,de-identifiedformat,with third parties for research, statistical and business purposes unlessotherwise agreed to or in accordance with the applicable privacy policy.Tothe extent that Seller receives any individually identifiable personalinformation regarding Purchaser from such technology, Seller’s policy is toprotect the confidentiality of such information, and to prohibit the unlawfuldisclosureofPurchaser’spersonalinformationtothirdparties.Sellerwilltakereasonable steps to insure the safety of Purchaser’s personal information.



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