Terms and Conditions

GQI - General Terms of Equipment Supply:

1. APPLICABILITY

(a) These general conditions apply to every proposal and to every purchase order acknowledgement or contract acceptance made by Seller. By accepting Seller’s proposal or submitting a purchase order in response to Seller’s proposal, Buyer agrees to these terms and conditions. Seller objects to and rejects any additional or conflicting terms and conditions in Buyer’s purchase order or any other documents submitted by Buyer.

(b) If there is a conflict between these general conditions and a term or condition set forth in Seller’s proposal, the term or condition in Seller’s proposal will control for all purposes.

(c) Unless otherwise agreed, these general conditions shall also apply to repeat orders of the same or similar products, or future orders relating to the Goods after they are delivered.

2. DEFINITIONS

(a) “Seller” means Grand Quest Industries LLC, DBA

GQI

(b) “Buyer” means the purchaser, its representatives or agents acting on its behalf.

(c) “Goods” means any products, equipment, machinery, parts, or materials, which Seller is to supply under this contract.

3. DELIVERY

(a) Unless otherwise agreed, Seller shall deliver the Goods EXW Place of Manufacture (Incoterms 2010) on the date or dates agreed by the parties or specified in Seller’s proposal.

(b) If the parties select an Incoterms delivery term other than EXW, the required date of delivery will be the date by which Seller must provide its notice of readiness for shipment.

(c) Partial deliveries are allowed.

4. PACKING AND SHIPPING

(a) Unless otherwise agreed, the Goods will be packed in accordance with Seller’s standard commercial practice. 

(b) Any amounts for freight included in Seller’s proposal are for estimate purposes only

(c) Any freight coordinated by Seller will be prepaid and add at Buyer’s expense

(d) Buyer is responsible for packaging costs and are not included in estimates

5. PRICE AND TAXES

All prices are exclusive of all sales, use, excise, and value-added taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority in connection with Seller’s production or sale of the Goods, the transportation of the Goods, or Buyer’s purchase or use of the Goods. Buyer shall reimburse Seller for all such taxes, duties, and charges upon receipt of Seller’s invoice. Buyer will not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, real or personal property, or other assets.

6. PAYMENT

(a) Unless otherwise agreed, Buyer shall pay the purchase price with order, Net15

(b) Buyer shall make payment in U.S. dollars within 15 days of the date of Seller’s invoice.

(c) Payments will be deemed to have been made only when Seller’s account has been fully and irrevocably credited.

(d) Buyer shall pay interest on late payments at the rate of 1% per month or the maximum legal rate, whichever is lower. Interest will be computed and due monthly.

(e) If Buyer fails to make a payment on time and does not pay all amounts due with applicable interest within 30 days of the date of written notice of late payment from Seller, Seller may suspend further performance of the contract.

7. BUYER OBLIGATIONS

(a) Buyer shall secure all construction, operating, environmental and other similar permits, registrations and licenses, and shall pay for all governmental and public utility charges and fees including assessments, tap-in charges, and inspection fees, necessary for the installation, erection or operation of the Goods and shall ensure that the Goods are installed and operated in compliance with all applicable laws, ordinances, regulations and codes (including but not limited to federal, state and local safety laws and regulations).

(b) If Seller’s design is dependent upon the results of tests of Buyer’s material, Buyer shall provide Seller free of charge with an adequate quantity of the material to be processed for test purposes. Buyer may send personnel to witness material testing at a mutually agreed time. Any modifications to the Goods which may be needed or failure of the Goods to perform as agreed, due to the material provided for testing not being representative of the materials to be processed, will be to Buyer’s account.

(a) Buyer shall furnish Seller, in English, with all information, instructions and drawings on which Seller’s timely and complete performance of the contract is dependent. Buyer represents that all information, instructions and drawings which it provides are complete, up to date, accurate and conform to applicable codes, ordinances, laws, regulations and other requirements, unless specifically noted otherwise.

(b) Buyer shall comply with all applicable U.S. export control laws, and the export and import laws of all countries involved in the sale of the Goods under this contract or any resale of the Goods by Buyer.

8. INSTALLATION

If Seller’s scope of work under this contract does not specifically include installation or commissioning of the Goods, or both, then the Goods will be installed and commissioned by Buyer at Buyer’s expense.

9. LIMITED WARRANTY

(a) Seller warrants to Buyer that Goods designed or manufactured by Seller will be free from defects in design, material and workmanship for 12 months from the date of delivery or 24 months from the date of execution of this contract, whichever is shorter. Goods provided by Seller which are designed and manufactured by others will have only the warranty offered by the manufacturer.

(b) Buyer shall provide Seller with written notice of a claimed defect, including a description thereof, within 30 days after it is detected, but in any event no later than the date of expiration of the warranty period. If Buyer fails to provide the notice as required, any repair or replacement by Seller will be to Buyer’s account. Notwithstanding the above, where the defect is such that it may cause damage, Buyer shall immediately inform Seller in writing and will bear the risk of damage from any failure to do so.

(c) Upon receipt of written notice of a claimed defect, Seller shall proceed without unreasonable delay to remedy any defect covered by the warranty. Seller shall repair or, at its option, replace at its expense any Goods or parts and components thereof covered by the warranty, which are found by Seller’s inspection to be defective. Costs of dismantling and reinstallation are excluded. Seller shall pay costs of transportation of replacement Goods on terms of DAP Buyer’s Premises for domestic United States shipments or DAP Buyer’s Port of Entry for international shipments. Buyer shall return replaced Goods or parts to Seller upon request, which upon return will become the property of Seller.

(d) If a claimed defect must be rectified immediately to avoid an imminent safety hazard or substantial economic harm, Buyer, after consultation with and approval by Seller, may itself undertake or employ a third party to undertake necessary remedial work, and Seller shall reimburse Buyer for its reasonable expenses in doing so, but not to exceed the price of the defective Goods involved, and subject to the limitations of warranty and of liability contained in this contract.

(e) Repair parts are warranted for 12 months from the date of delivery under the conditions in this section up to a maximum of two successive repairs. Repairs or replacements do not extend or renew the warranty for the remaining original Goods.

(f) Seller’s warranty is subject to the Goods being properly stored, installed, maintained and operated in accordance with Seller’s instructions and good industry practice. Seller’s warranty excludes ordinary wear and tear, corrosion, excessive heat, improper lubrication, extended storage before start-up, or application outside the design limitations of the Goods, or any repair, replacement, modification or alteration of the Goods not authorized by Seller.

(g) The remedies set forth in this section are Buyer’s sole and exclusive remedy and Seller’s entire liability for any breach of Buyer’s limited warranty. Seller disclaims any other warranties, express or implied, including, without limitation, any implied warranty of merchantability or fitness for a particular purpose.

10. SELLER DOCUMENTATION

(a) Technical documents and specifications provided by Seller, such as drawings, descriptions, illustrations, dimensions and weights, and information and data contained in general product documentation and price lists, are binding only to the extent that they are expressly included by reference in the contract. Seller reserves the right to make any necessary alterations to such documents and specifications.

(b) If required by the contract, Seller shall submit drawings, other documentation, or both, to Buyer for approval. Approval of Seller’s submittals means that Buyer warrants that the Goods can be installed with and are suitable for use with Buyer’s existing equipment or equipment to be supplied by others. Unless Buyer advises Seller otherwise in writing within 10 business days after Seller provides the submittals, Seller’s submittals will be deemed to be approved and Seller will be authorized to proceed with work under the contract. Any delay by Buyer in approving Seller’s submittals, and any agreed changes to the Goods or engineering resulting from Buyer’s review of the submittals may result in corresponding changes to the contract price and delivery schedule.

(c) No later than the date of delivery, Seller shall furnish to Buyer an electronic copy of drawings and pertinent instructions required for installation, operation, and maintenance of the Goods, in “.pdf” format only. Seller will not supply detailed or shop drawings for the Goods or for spare parts.

11. INTELLECTUAL PROPERTY

(a) All drawings and technical documents submitted by one party to the other in connection with this contract or the Goods will remain the property of the submitting party. The parties shall keep such drawings and documents confidential and shall not use them for any purpose other than those for which they have been supplied or prepared.

(b) Seller grants to Buyer a non-exclusive, royalty-free license to use its engineering, drawings, specifications and instructions solely for purposes of installation, operation, maintenance, and repair of the Goods.

(c) All intellectual property provided or furnished by Seller, whether in written, oral or electronic format, as well as any discovery, invention, development or improvement made or conceived by either party directly or indirectly as a result of Seller’s work under the contract (collectively, “Seller Information”) will be regarded as and remain the exclusive property of Seller, and Buyer shall not disclose it to any third party without the express written permission of Seller.

(d) The parties agree that if Buyer breaches its obligations under the preceding subsection, then

(i) the confidentiality of the Seller Information, Seller’s proprietary rights and interests in the Seller Information, and Seller’s business will be substantially threatened and impaired;

(ii) monetary relief will not provide an adequate remedy for such breach; and (iii) notwithstanding the dispute resolution provisions of this contract, Seller will be entitled to seek immediate injunctive relief against Buyer and such other equitable and other relief as the circumstances may require.

12. PERFORMANCE TESTING

(a) Seller shall make every reasonable effort to ensure that the Goods will reach expected levels of performance, but Seller will not be liable for any damages due to any failure of the Goods to meet specific levels of performance and no such failure to meet specific levels of performance will be sufficient cause for default, penalty, liquidated damages, or termination of the contract which might be claimed on account of failure of the Goods to meet specific levels of performance, except as set forth in subsection (b) below.

(b) If the Goods, for reasons attributable to Seller, fail to reach at least 85% of their specified capacity, Seller, at its option, may either (i) correct or modify the Goods to reach that percentage of the specified capacity, or (ii) pay to Buyer as liquidated damages and not as a penalty, an

amount equal to 15% of the portion of the contract price attributable to the Goods.

(c) If Seller choose to pay liquidated damages under subsection (b) above, such payment will constitute Seller’s exclusive obligation for failure to meet specified levels of performance of the Goods, and will relieve Seller from any further liability to Buyer for such failure.

(d) If any required performance tests are delayed, for reasons not attributable to Seller, by more than 3 months after the time they were scheduled to commence, the performance tests will be deemed to have been successfully completed.

13. NON-DELIVERY AND DELAYS

(a) If Seller, for reasons attributable to Seller, does not complete the delivery of all major items of the Goods within the required time period plus a one- week grace period, Seller shall pay to Buyer as liquidated damages and not as a penalty a sum equal to 0.2% of the value of the delayed item of the Goods for each full week of delay, up to a maximum of 5% of the delayed item of the Goods. Seller shall pay such liquidated damages upon written claim by Buyer. Seller’s payment of such liquidated damages will be its exclusive obligation for failure to meet schedule dates. If Buyer does not submit its written claim for liquidated damages to Seller within 6 months after the time when delivery should have taken place, Buyer waives its right to claim such damages.

(b) If delay in delivery is caused by any of the circumstances mentioned in Section 14 [Force Majeure] or by an act or omission on the part of Buyer, including a delay in delivery of material for test purposes (if required), the time for delivery will be extended by a reasonable time.

(c) If Seller anticipates that it will not be able to deliver the Goods at the time for delivery, Seller shall promptly notify Buyer in writing, stating the reason, and, if possible, the time when delivery can be expected. If Seller fails to give such notice, Buyer will be entitled to compensation for any additional reasonable costs which it incurs and which it could have avoided had it received such notice.

(d) If Buyer fails to arrange for a carrier to transport the Goods upon Seller’s FCA delivery, or if Seller is unable to deliver the Goods as otherwise agreed because Buyer postpones or does not accept delivery or has not provided appropriate instructions, documents, licenses or authorizations, then: (i) risk of loss to the Goods will pass to Buyer; (ii) the Goods will be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, and Buyer will be liable for all related expenses (including, without limitation, storage and insurance).

14. FORCE MAJEURE

(a) “Force Majeure” includes, but is not limited to events or causes that are not reasonably within the control of a party affected thereby, including but not limited to: fires and explosions; acts of God (including, but not limited to, floods, tornadoes, hurricanes and earthquakes); riots, insurrections, or civil unrest; acts or threatened acts of terrorists and the results thereof; war, blockades or other acts or threatened acts of war or military action; trade embargoes or restrictions; changes in applicable law; governmental or judicial acts, decrees, injunctions, restrictions or other orders; or strikes or other industrial disputes.

(b) If either party is rendered unable, wholly or in material part, by reason of Force Majeure to carry out any of its obligations under this contract, such obligations will be suspended.

(c) The affected party shall notify the other party not later than 14 days after learning of the Force Majeure event. The occurrence of a Force Majeure event shall not excuse a party from any payment obligation it may have under the contract.

15. CANCELLATION

With the written consent of Seller, Buyer may cancel the contract upon payment of all outstanding invoices plus any and all cancellation charges and other costs (including legal fees and judgments) incurred by Seller as a result of the cancellation of vendor purchase orders or subcontracts related to this contract.

16. DEFAULT

(a) If Buyer fails to pay any late payments (including applicable interest) within 3 months after the date of Seller’s notice of late payment, Buyer will be deemed to be in default of contract, and Seller may terminate the contract by notice in writing to Buyer.

(b) If Buyer fails to accept delivery within 30 days after Seller attempts to make delivery or provides its notice of readiness for shipment (as applicable), Seller may by notice in writing terminate the contract in whole or in part.

(c) Seller may also terminate this contract if: (i) Buyer becomes bankrupt or makes an assignment for the benefit of its creditors; or (ii) Buyer materially breaches a material provision of the contract and fails to undertake remedial action to correct such failure within 30 days of notice in writing by Seller.

(d) If Seller terminates this contract under subsections

(b) or (c) above, Seller will be entitled to receive as damages an amount equal to the percentage stage of completion of the Goods at the time of termination times the contract price, plus any cancellation charges incurred by Seller from its suppliers, plus 10% of the contract price in lieu of profit.

(e) Buyer may terminate this contract if: (i) Seller becomes bankrupt or makes an assignment for the benefit of its creditors; (ii) Seller materially breaches a material provision of the contract and fails to undertake remedial action to correct such failure within 30 days of notice in writing by Buyer; or (iii) Seller suspends or abandons performance of all work for a period of 30 days without justification.

17. INSURANCE

Seller shall provide the following insurance coverage and maintain it in place until the expiration of the warranty period: (i) Workers’ Compensation Insurance, including Employer’s Liability coverage, in the amount as required by law, for Seller’s employees; (ii) Commercial General Liability and Property Damage Insurance with a combined single limit of $1,000,000 per occurrence and $2,000,000 aggregate; and (iii) Automobile Liability Insurance with a combined bodily injury and property damage limit of $1,000,000 per occurrence.

18. INDEMNIFICATION

Buyer shall indemnify and hold harmless Seller, its officers, directors, employees, agents, representatives, affiliates, successors and subcontractors (“Seller’s Party”) from and against any and all losses, expenses, demands, and claims made against Seller’s Party by Buyer, any current or subsequent agent, affiliate, or employee of Buyer for any cause including injury or illness (including death) and damage of property, actual or alleged, including causes by the sole negligence of Seller Party, the concurrent negligence of Seller Party with Buyer, any agent, affiliate, or employee of Buyer, resulting from, or in any way connected with the operation, installation, maintenance, possession, use, transportation, or disposition of the Goods.

19. DISPUTE RESOLUTION

All disputes and claims concerning, arising from, or relating in any way to the contract, which cannot be settled by good faith discussion, will be resolved through binding arbitration by the Circuit Court of Cook County, located in Illinois, pursuant to their rules of commercial arbitration in effect at the time. The arbitrators shall have no right to add to, subtract from or modify any of the provisions of this contract, and shall not exceed any limitations of liability and remedy provided in the contract. The arbitration award shall not be appealable or subject to review by any court or other arbitration panel. The arbitrators shall award the substantially prevailing party full reimbursement of all fees and costs assessed by or through the Circuit Court of Cook County (including arbitrator fees and any filing fee paid by that party) plus that party’s attorneys’ fees and arbitration- related costs.

22. GOVERNING LAW

The contract is governed by and must be construed in accordance with the laws of the state where Seller’s office is located which issued the proposal which preceded this contract, notwithstanding the result that otherwise may arise from application of the conflict of law rules of any competent jurisdiction. The parties expressly waive application of the UN Convention on the International Sale of Goods.

23. LIMITATION OF LIABILITY

(a) Neither party shall under any circumstances be liable to the other party for loss of profits or revenue, loss of use of the Goods or associated equipment, downtime costs, or other such claims arising from any cause whatsoever, or for any special, incidental, indirect, exemplary, punitive, or consequential damages, whether or not such loss or damage is based in contract, warranty, tort (including negligence or strict liability), indemnity or otherwise, whether or not such damages were foreseeable, whether or not the other party has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. Each party hereby releases the other party from all such liability.

(b) Seller’s maximum aggregate liability arising out of this contract or in connection with the supply or use of the Goods is limited to 100% of the contract price, whether such sum is expended in repair, replacement, other corrective action, liquidated damages, refund of the contract price or any such remedy as may be provided, and all liability shall terminate upon the expiration of the warranty period. Buyer releases Seller Party from any further liability.

24. ENTIRE AGREEMENT

Except for any previous nondisclosure agreement entered into by the parties, this contract is intended by the parties as the final expression of their agreement, and a complete and exclusive statement of its terms. The parties each represent that in entering into this contract, they do not rely upon any previous verbal, written, or implied statement, representation, endorsement, or understanding of any kind. No course of dealing, usage of trade or course of performance may be used to imply, add, or amend terms or conditions of the contract. The contract may only be

amended by a document in writing signed by authorized representatives of both parties.

25. ASSIGNMENT:

Neither party may assign this contract without prior written consent of the other party, except that Seller reserves the right without the consent of Buyer to assign the contract, or to subcontract any portion of the work under the contract, to an affiliated company of Seller. In the event Seller consents to any assignment by Buyer, the rights of any assignee will be subject to all setoffs, counterclaims and other rights of Seller arising under this contract and Buyer remains fully responsible for the performance by its assignee of all conditions of this contract.

26. NOTICES

Service of all notices under the contract will be sufficient if given personally, by postal mail, or by commercial express delivery, to such addresses as the parties may provide in writing from time to time. All notices will be effective upon receipt.

27. SECURITY INTEREST

As security for the payment of the price, Buyer hereby grants a purchase money security interest in and to the Goods until Seller has been paid in full.

28. SETOFF

This contract is completely independent of all other contracts between the parties. Invoices issued under this contract will not be subject to setoff against any money due or claimed to be due from Seller on account of any other transaction or claim.

29. SOFTWARE

To the extent the Goods include any computer software, prior to delivery, Buyer shall execute Seller’s license agreement and any third-party license agreements that may be required. Execution of such agreements is a condition precedent to Seller’s obligations under the contract.

30. TITLE AND RISK OF LOSS

Seller will retain title to the Goods until the full purchase price has been paid. Risk of loss to the Goods will pass from Seller to Buyer as specified under the agreed delivery term (Incoterms 2010), or if no Incoterm is selected, upon delivery of the Goods.

31. WAIVER

Neither payment nor receipt of payment by a party; failure by a party to insist on strict performance of the contract; acceptance of the work by a party; or waiver by a party of any breach of the contract will constitute a waiver by that party of any other breach of the contract or its right to demand and enforce the other party’s compliance with its obligations under this contract.

32. RELATIONSHIP OF THE PARTIES

The relationship between the parties is that of independent contractors. Nothing contained in this contract will be construed as creating any agency,

partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties. Neither party will have authority to contract for or bind the other party in any manner whatsoever.

33. SEVERABILITY

If any provision of this contract is or becomes unenforceable, the other provisions will remain valid to the maximum extent possible. In such event, the provision in question will be deemed to be replaced with a valid and enforceable provision most closely reflecting the intent and purpose of the original provision.

34. SURVIVAL OF TERMS

Provisions of this contract which by their nature should survive completion or termination of the contract will remain in force, including, but not limited to, Sections 5 [Price and Taxes], 11 [Intellectual Property], 18 [Indemnification], 19 [Dispute Resolution], 21 [Limitation of Liability], 25 [Security Interest], and 29 [Waiver].

35. COUNTERPARTS

This contract may be signed in multiple counterparts that together shall form a single agreement as if all parties had executed the same document. Delivery by electronic transmission of an image or portable document format (PDF) version of an executed counterpart of this contract is as effective as delivery of an originally executed counterpart.