195 Industrial Rd, Fitchburg, MA          





1. PURCHASE OF EQUIPMENT. Seller shall sell to Buyer, and Buyer shall purchase from Supplier for the Price provided above, the Equipment described above in accordance with the terms and conditions set forth in this Agreement. For purposes of this Agreement, the term "Equipment" shall include all components of the Equipment, all associated software licensed by Seller pursuant to Section 2 hereof, and all upgrades, enhancements, and replacements thereof made available, or required to be made available, to Buyer pursuant to this Agreement.


A. Seller hereby grants to Buyer a perpetual, irrevocable, nonexclusive, fully paid-up, transferable license to possess and use the operational computer software for the Equipment, including, without limitation, the object code embodiment thereof and all related documentation (collectively, the Software), solely with the Equipment and to reproduce the Software in connection with such use.

B. Buyer acknowledges that it is acquiring no ownership interest in the Software and that all right, title, and interest in and to the Software remain with Seller.

3. INSTALLATION AND TRAINING: Prior to the delivery date set forth above, if Buyer and Seller have agreed, Buyer shall prepare the installation site for the Equipment in accordance with Supplier's installation specifications. Upon notice by Buyer of the arrival of the Equipment at Buyer’s facility, Seller shall install the Equipment in a timely manner and in accordance with Seller’s installation specifications. In addition, Seller will provide Buyer with reasonable product and user training as per the quotation accepted by Buyer. Buyer agrees that no one will use the Equipment who has not been trained and who does not use the required safety equipment and safety practices outlined during the training.

4. WARRANTY: The Equipment is warranted to Buyer to be free from defects in material and workmanship for a period of twelve months for all parts and labor. Seller will repair or replace at its option and no cost to Buyer, any Equipment delivered to Seller's designated facility in a non-operating condition pursuant to the above warranties. Buyer shall be responsible for determining that the Equipment is in a non-operating condition upon receipt and will identify the suspected malfunction to Seller. The Seller’s warranty does not apply to performance of the Equipment caused by abrasive materials, corrosion due to aggressive fluids, lightning, improper voltage supply, mishandling or misapplication in a manner inconsistent with that identified in Seller's catalogs and literature. Any warranty granted by Seller to the Buyer shall be deemed void if the Equipment is used for any purpose not permitted hereunder. In the event that the Equipment is altered or repaired by the Buyer without prior written approval by the Seller, all warranties are void. In no event shall Seller be liable for collateral or consequential damages. In addition, the Buyer shall indemnify Seller and hold Seller harmless from and against any and all claims, damages, losses, costs, expenses, and other liability of whatever nature that Seller suffers or incurs by reason of any such unintended use. This warranty is made in lieu of any warranty expressed, implied, or statutory; and no agreement extending or modifying it will be binding upon Seller unless in writing and signed by a duly authorized officer. EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, VYTEK, INC. DISCLAIMS ALL WARRANTIES ON PRODUCTS INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS AND THE STATED WARRANTIES ARE IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF VYTEK, INC. FOR DAMAGES, INCLUDING BUT NOT LIMITED TO SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE PRODUCTS.

5. INDEMNITY: Buyer shall indemnify and save the Seller harmless from any and all claims by, for, or against the Seller or Buyer as a result of injury or damage to Buyer, Buyer's employees, or other persons caused by the equipment during the course of its use herein sold by the Seller to the Buyer, unless the injury or damages is as result of negligent manufacture or otherwise.

6. GENERAL PROVISIONS: This contract is made, governed by, and shall be construed in accordance with the laws of the Commonwealth of Massachusetts. Seller and Buyer hereby consent to the exclusive jurisdiction and venue of the courts of Massachusetts or of federal courts in Massachusetts with respect to any dispute, controversy or other matter relating to or arising out of this order and agree that any

such any dispute, controversy or other matter relating to or arising out of this order may only be brought in the courts of Massachusetts or of federal courts in Massachusetts. This contract is non-assignable, and any attempt to assign any right, duties or obligations under this contract will be void, except in the case of a change in ownership, contract will insure to present owner. All rights and remedies of either party, whether evidenced hereby or by any other contract, instrument or paper, shall be cumulative and may be evidenced hereby or by any other contract, instrument or paper, shall be cumulative and may be exercised singularly or concurrently. In the event either party shall, on any occasion, fail to perform any term of this contract, and the other party shall not enforce that term, failure to enforce on that occasion shall not prevent enforcement on any other occasion.

7. NOTICES: All notices, requests, consents, and other communications required, or permitted hereunder shall be in writing and shall be mailed by registered or certified mail, postage prepaid, or transmitted by Telex, TXW, or Facsimile to addresses set forth below, addresses subject to change by written notice.

8. ENTIRE AGREEMENT: This Agreement constitutes the entire Agreement of parties with reference to the subject matter hereof.

9. SHIPMENT AND PASSAGE OF TITLE: Shipment will be made F.O.B. Point of Origin. In the absence of specific shipping instructions, method of shipment will be determined by the Seller. In all cases, Seller's responsibility (except as stated in its warranty) cease and risk of loss shall pass upon delivery of the material to the carrier, irrespective of the method of shipment and method of payment for shipment.

10. SECURITY INTEREST: Buyer hereby grants to seller a first priority lien and purchase money security interest in the Equipment purchased hereunder and in all subsequently purchased Equipment, and any and all components, material, systems and sub-systems incorporated therein, together with all operating and maintenance manuals and other documents required by this Agreement, and all moneys, securities and other property resulting from the sale, pledge or other disposition of the same. Buyer will keep the Equipment free from any and all adverse liens, security interests and encumbrances. Buyer hereby agrees to execute any and all promissory notes, UCC-1 Financing Statements and other documents, and pay any and all fees, taxes or other costs as necessary to allow the Seller to perfect its interest in the Equipment Seller agrees that upon full satisfaction of the purchase price and all related charges for the Equipment, Seller shall execute UCC termination statements as necessary.

11. DELIVERY: Seller will endeavor to meet delivery schedules, but in no case shall Seller incur any liability, consequential or otherwise, for any delays or failure to deliver as the result of any cause beyond its reasonable control, including, without limiting the generality of the foregoing, acts of God, of a public enemy, or of the Buyer; or disputes, accidents, transportation conditions, government actions of any kind, inability to secure adequate material or labor, or any cause similar or dissimilar to the foregoing. Quoted delivery dates are Seller's best estimate, on the basis of current schedules. In no event shall Seller be liable for special or consequential damages resulting from failure to meet requested delivery schedules. Incremental or additional costs incurred by Seller as a result of Buyer's alternation of the delivery schedule, whether or not such alteration constitutes a change under Paragraph 11 hereof, will be borne by Buyer.

Buyer agrees to inspect the equipment at Seller's designated facility prior to shipment, at Buyer's expense, for the purpose of confirming the operating condition, functions, features, and performance of the equipment. If buyer fails to inspect the equipment prior to shipment to Buyer's designated facility, Buyer relinquishes the right to refuse acceptance of and to make payment for the equipment for reasons relating to the equipment's functions, features and/or performance.

12. TERMINATION AND BREACH: This contract may be terminated by Buyer only when approved in writing by Seller. In the event of termination, Seller will take immediate steps to mitigate termination costs to Buyer, but Buyer shall reimburse Seller for the cost of labor, overhead, and material costs and other commitments made by seller in reliance upon this order. Insolvency of the Buyer, the filing of a petition in bankruptcy or the commencement of any insolvency or receivership proceeding shall be deemed a termination of the Buyer. Notwithstanding any provision to the contrary herein, if Seller shall at any time have grounds for insecurity with respect to Buyer's performance hereunder and buyer shall fail to provide adequate assurance of due performance within thirty (30) days after the mailing to it by Seller of a demand for such assurance, then Seller may consider this contract repudiated and shall have all the rights to a Seller for such repudiation under Chapter 106 of the General laws of Massachusetts.

13. CHANGES: No change shall be made in descriptions and specifications relating to this order without the written consent of Seller. Subject to the foregoing, Buyer, by written order, may make changes in drawings, specifications, delivery schedules, shipment or packing of articles if such changes increase or decrease the cost of, or the time required for performance of this order, or otherwise affects any of the provisions of this order, an equitable adjustment shall be made in the price or delivery schedule, or both, and in such other provisions of this order as may be so affected, and the order shall be modified in writing accordingly. Any claim for adjustment hereunder may be asserted at any time prior to shipment of the last item due under this order. It is agreed that the prices stated herein are based upon normal supplied and labor costs and that any request of Buyer necessitating overtime or other expense shall be deemed a change under this provision.

14. REPRODUCTION RIGHTS: Designs, processes, drawings, specifications, reports, photographs, data and other technical or proprietary information relating to this order shall remain the property of Seller and Buyer agrees that it will not use any of such items or information therein for the production or procurement from any other source of articles furnished in connection with this order, nor reproduce or otherwise appropriate the same without the prior written authorization of Seller or until such items or information become publicly known through a source other than Buyer.

15. CONFIDENTIAL: Buyer agrees that it will not disclose or make available to any third party any of the items referred to in Paragraph 14, or any information contained in such items without obtaining the prior written consent of Seller or until such information becomes publicly known, through a source other than Buyer.

16. INFRINGEMENT: Except insofar as this order calls for articles or materials not manufactured by Seller, or manufactured by Seller pursuant to Buyer's drawings or specifications, Seller agrees to defend any suit or proceedings against Buyer based upon an infringement claim that any article or part thereof manufactured hereunder, by reason of its manufacture, sale or use, infringes any United States patent which was issued at date of contract, and agrees to pay the amount of any judgment against Buyer resulting therefrom, together with all costs and expenses incident thereof, provided however, that such claim does not relate to articles or materials manufactured pursuant to Buyer's drawings or specifications, provided, further, that Seller is notified of such an infringement claim or the threat of commencement of such suit or proceeding within two weeks of the time Buyer received notice thereof and is given an opportunity, with the cooperation of Buyer, to conduct the defense or settlement thereof. Seller's liability to pay or incur expenses or to pay any costs, damages or judgments under the foregoing provision shall be limited to an amount equal to Purchase price paid for the articles or material upon which such infringement claim is based less a reasonable allowance for the use and depreciation. Seller reserves the right to substitute for articles, materials, or parts thereof, which in its opinion might infringe other equally suitable products without altering the other conditions before or after sale. Seller shall also have the right to take back infringing articles, materials, or parts thereof, refuting the purchase price or an equitable portion thereof less a reasonable allowance of use and depreciation. Seller assumes no responsibility for the actual or alleged infringement of any foreign patent or other matter except as expressly stated in this Paragraph 17. Buyer agrees to pay to Seller all costs and expenses incurred by Seller in its defense, and to pay the amount of any judgment against Seller, in any suit or proceeding against Seller based upon a claim of infringement, resulting from Buyer's combining any articles supplied hereunder with any articles or device not manufactured or supplied by Seller or from the sale or use of any such combination by Buyer.

17. TAXES: The amount of any present future sales, use, or similar taxes, and import or export tariffs applicable to the products sold hereunder, shall be payable by Buyer when and as incurred.

18. SELLER'S ADDITIONAL REMEDIES: In addition to the rights specified herein, Seller shall have all the rights and remedies of a Seller under Chapter 106 of the General Laws of Massachusetts and no waiver of or failure to enforce and as such right or remedy on one occasion shall be deemed a waiver of such right or remedy on any future occasion.

19. SEVERABILITY: These terms and conditions shall be severable and the invalidity or unenforceability of any of them under any circumstances shall not affect those terms and conditions which are not held to be invalid or unenforceable.


NOTICE: The equipment sold hereby should only be used by properly trained personnel who follow proper safety precautions. Familiarize all persons with safety practices before they use the equipment.