STANDARD TERMS AND CONDITIONS OF SALE

  1. 1. ACCEPTANCE

    The acceptance of your order by Orvito, Inc. (“Seller”) is EXPRESSLY MADE CONDITIONAL UPON BUYER’S ASSENT TO THE TERMS AND CONDITIONS HEREIN SET FORTH and these constitute the only binding contract terms and conditions between the parties. Unless modified in writing and signed by both parties, your assent to the terms and conditions stated herein will be understood and delivery will be made accordingly.

  2. 2. PRICE AND QUANTITY

    Anything herein and any course of dealing between parties to the contrary notwithstanding.

    1. Seller shall not be obligated to sell or delivery any quantity of the product(s) covered by this acknowledgement beyond the amount, if any, which in Seller’s sole judgment is available for such purposes at the date proposed shipment of such products(s) to the buyer.

    2. Seller reserves the right to modify shipping point and/or schedule and shall not be liable for any failure to ship products as scheduled or from point of origin.

    3. The price of any product(s) to be supplied hereunder shall be Seller’s price for such product(s) as of the date of shipment thereof, unless otherwise agreed in writing.

    4. Seller reserves the right to set minimums and/or premiums or to reject orders for unusual configurations or amounts.

    5. Overrun or underrun of 10% or less in filling orders shall constitute full compliance with all orders, although Buyer must pay for only the quantity actually delivered.

    6. Any freight allowances shall be those specified by Seller as of the date of shipment thereof.

    7. If payments are not made when due, or if Seller has reason to believe that Buyer has unsatisfactory financial responsibility, Seller may require cash in advance or other payment terms, suspend shipment or cancel this agreement.

    8. If this account is given to an attorney for collection, or if suit is brought for collection, or if it is collected through probate, bankruptcy or other judicial proceeding, then buyer shall pay to Orvito, Inc. all costs of collection, including reasonable attorney’s fees and court costs, in addition to other amounts due.

  3. 3. TAXES

    Any tax, excise or other governmental charge imposed upon the production, value added, sale or transportation of or to any material or product(s) sold hereunder which Seller may be required to pay shall be paid by Buyer to Seller in addition to the purchase price. Buyer shall provide Seller, on request, properly completed exemption certificates for any tax from which Buyer claims exemption.

  4. 4. WARRANTY

    Orvito Inc warrants to Buyer for the lesser period of 18 months from delivery or 12 months from startup, that the WORK will perform as stated in the Statement of Work and the Products will be free of defects in material, fabrication, and workmanship provided that: (1) the operating conditions and use of the WORK are in accordance with any standards set forth in the Statement of Work, Orvito's published specifications, and applicable recommendations of Orvito Inc; and (2) the installation, adjustment, tuning, and start-up of the WORK have been properly performed in accordance with Orvito’s published specifications and any applicable recommendations of Orvito.

  5. 5. TITLE: RISK OF LOSS; CONTAINERS

    Unless it is otherwise indicated elsewhere in this agreement, delivery and sales terms are FOB shipping point. Title to the product(s) and risk of loss shall pass to Buyer upon delivery to a carrier or into Buyer’s transport.

  6. 6. INSPECTION AND NOTIFICATION:

    Buyer shall inspect and test the product(s) delivered hereunder for damage, defect or shortage immediately upon receipt at Buyer’s plant or such other location as determined by Buyer and provide Seller notice of any such damage, defect or shortage within thirty (10) days of receipt. [All claims for any cause whatsoever, whether based in contract, negligence or other tort, strict liability, breach of warranty or otherwise, shall be deemed waived unconditionally and absolutely unless Seller receives written notice of such claim not later than forty five (15) days after Buyer’s receipt of the product(s) as to which such claim is made.]

  7. 7. FORCE MAJEURE

    Neither party will be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to perform due to causes beyond its reasonable control, including without limitation, acts of God, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, performance date(s) will be extended as reasonably necessary to compensate for the delay.

  8. 8. DISCLAIMER AND LIMITATION OF LIABILITY

    To the fullest extent permitted by applicable law, neither party shall be liable to the other party for any business interruption or loss of profit, revenue, materials, anticipated savings, data, contract, goodwill, or the like (whether direct or indirect in nature) or for any other form of incidental, indirect, or consequential damages of any kind. Each party’s maximum cumulative liability relative to all other claims and liabilities, including obligations under any indemnity, whether or not insured, will not exceed the cost of the work. Orvito, Inc disclaims all liability relative to gratuitous information or assistance provided by but not required of Orvito by the statement of work. Any action by either party must be brought within 6 months after the cause of action accrues. These disclaimers and limitations of liability will apply regardless of any other contrary provision and regardless of the form of action, whether in contract, tort (including negligence and strict liability), or otherwise. Each provision of this agreement that provides for a limitation of liability, disclaimer of warranty or condition or exclusion of damages is severable and independent of any other provision. This provision extends to the benefit of Orvito’s parent, subsidiaries, affiliates, vendors, appointed distributors, and other authorized resellers as third-party beneficiaries.

  9. 9. TECHNICAL INFORMATION; HAZARDS AND PRECAUTIONARY PROCEDURES

    Any Technical information or assistance Seller or any of its affiliates provides, including suggested formulations and recommendations, is given and accepted at Buyer’s risk and is not a warranty or a specification. Buyer agrees that Buyer is responsible to test Seller’s product(s), technical assistance and information to determine their suitability for Buyer’s intended uses and applications. Seller shall furnish to Buyer Material Safety Data Sheets including warnings and safety and health information concerning the product(s) and/or the containers for such product(s) sold hereunder. Buyer agrees that it will familiarize itself with all hazards and precautionary procedures with respect to the handling, transportation or use of the product(s) and the containers in which such product(s) is shipped and will manage the product(s) and containers accordingly. Buyer agrees to disseminate such information so as to give warning of possible hazards to persons who Buyer can reasonably foresee may be exposed to such hazards, including but not limited to Buyer’s employees, agents, contractors and customers. Buyer agrees, notwithstanding anything herein to the contrary, to indemnify Seller and its affiliates for any claims made against Seller or its affiliates and for associated damages and expenses (including reasonable attorney’s fees and expenses) to the extent caused by Buyer’s failure to familiarize itself with such hazards and precautionary procedures, to manage accordingly, or to forward such information.

  10. 10. MISCELLANEOUS

    No waiver by either party or any breach of other terms or conditions herein contained shall be construed as a waiver of any succeeding breach of the same or other terms and conditions. This agreement shall be construed and enforced under the laws of the State of MA. Cancellation and changes in orders can be accepted only if the order is not in actual production. This agreement consists only of the terms and conditions set forth herein. Any modifications must be in writing and signed by both parties.