GROVE SERVICES, INC.
GENERAL TERMS AND CONDITIONS

Sales Orders; Governing Terms and Conditions.  The Sales Order shall be governed by these General Terms and Conditions, and, if applicable, the terms and conditions stated in the Customer Agreement between Grove Services, Inc. (the “Company”) and Customer.  In the event of any inconsistency or discrepancy between the terms and conditions of the Customer Agreement, if applicable, and the Sales Order, the terms and conditions of the Customer Agreement shall control.  Company shall not be bound by any term or conditions of Customer’s orders, order acknowledgements or acceptance forms, invoices, counter offers or other documents which propose any terms or conditions in addition to or differing from these General Terms and Conditions and, if applicable, the Customer Agreement.  The failure of Company to object to such terms and conditions contained in any Customer document shall not be deemed a waiver of any of these General Terms and Conditions or, if applicable, the terms and conditions in the Customer Agreement, which shall together constitute the entire agreement between the parties, unless Company shall subsequently expressly agree in writing to such additional terms and conditions.  No amendment, deletion, supplement or change in these General Terms and Conditions shall be binding upon Company unless separately and specifically approved by a duly authorized officer of Company in a written amendment, signed by hand in ink. 

Changes. Any changes to any Sales Order must be in writing and accepted and acknowledged in writing by a duly authorized officer of Company to be effective.

Price.  Prices shall be firm and not subject to adjustment.  Unless otherwise stated on the face of the Sales Order, all prices are in United States dollars (USD).

NO REPRESENTATION OR WARRANTY WITH RESPECT TO PRODUCT. 

          a.          THE COMPANY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, INCLUDING FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, OR OTHERWISE WITH RESPECT TO PRODUCT SOURCED, PURCHASED AND DELIVERED HEREUNDER OR UNDER ANY SALES ORDER, EXCEPT TO THE EXTENT OTHERWISE STATED IN ANY SALES ORDER BETWEEN THE COMPANY AND CUSTOMER WITH RESPECT TO PRODUCT.  CUSTOMER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE PRODUCTS.  THE SUITABILITY OF PRODUCTS FOR ANY PURPOSE PARTICULAR TO CUSTOMER IS FOR CUSTOMER, IN CUSTOMER’S SOLE JUDGMENT, TO DETERMINE.

          b.          IN THE EVENT OF A DEFECT IN ANY PRODUCT, CUSTOMER SHALL HAVE AVAILABLE TO IT ONLY THOSE REMEDIES, IF ANY, PROVIDED FOR IN ANY SALES ORDER OR OTHER AGREEMENT ENTERED INTO BY THE COMPANY ON BEHALF OF CUSTOMER WITH THE SUPPLIER OR DISTRIBUTOR OF SUCH PRODUCT.  THE COMPANY SHALL USE ITS COMMERCIALLY REASONABLE EFFORTS TO COOPERATE WITH CUSTOMER AND FACILITATE CUSTOMER’S PURSUIT OF SUCH REMEDIES, IF ANY, AT THE REASONABLE REQUEST OF CUSTOMER. 

          c.          THE PARTIES EXPRESSLY AGREE THAT ANY STATEMENTS BY THE USDA OR OTHER GOVERNMENT AGENCIES CONTAINED IN ANY EXPORT CERTIFICATION DOCUMENTS PROVIDED BY THE COMPANY OR ANY UNDERLYING SUPPLIER OF PRODUCT DO NOT CONSTITUTE WARRANTIES, WHETHER EXPRESS OR IMPLIED, BY THE COMPANY.

LIMITATION OF LIABILITY.  NEITHER THE COMPANY, NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES OR AGENTS SHALL BE LIABLE TO CUSTOMER OR ITS DIRECTORS, OFFICERS, EQUITY HOLDERS, EMPLOYEES, AFFILIATES, AGENTS OR CUSTOMERS FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL OR TORT DAMAGES RELATING TO OR ARISING OUT OF THE CUSTOMER AGREEMENT, IF APPLICABLE, ANY SALES ORDER OR CREDIT APPLICATION, IF ANY, OR WITH RESPECT TO THE COMPANY’S PERFORMANCE OR LACK THEREOF.  NEITHER THE COMPANY, NOR ITS DIRECTORS, OFFICERS, SHAREHOLDERS, EMPLOYEES, AFFILIATES OR AGENTS SHALL BE LIABLE TO CUSTOMER OR ITS DIRECTORS, OFFICERS, EQUITY HOLDERS, EMPLOYEES, AFFILIATES, AGENTS OR CUSTOMERS FOR ANY INDIRECT OR DIRECT DAMAGES RELATING TO OR ARISING OUT OF THE CUSTOMER AGREEMENT, IF APPLICABLE, ANY SALES ORDER OR CREDIT APPLICATION, IF ANY, OR WITH RESPECT TO THE COMPANY’S PERFORMANCE OR LACK THEREOF, UNLESS SUCH DAMAGES ARE SOLELY THE RESULT OF THE COMPANY’S OR ITS DIRECTORS’, OFFICERS’, SHAREHOLDERS’, EMPLOYEES’ OR AFFILIATES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, IN WHICH CASE IN NO EVENT SHALL THE COMPANY’S DAMAGES EXCEED TWENTY FIVE THOUSAND DOLLARS ($25,000 USD) IN THE AGGREGATE AND COMPANY SHALL HAVE THE UNRESTRICTED RIGHT TO APPLY ANY DAMAGES AGAINST THE PAST AMOUNTS DUE TO COMPANY BY CUSTOMER, OR IN THE CASE WHERE NO PAST DUE AMOUNTS EXIST, AS CREDIT AGAINST ANY FUTURE ORDER OF THE CUSTOMER, TO THE GREATEST EXTENT ALLOWABLE BY LAW.

Force Majeure.  Customer understands and agrees that any Sales Order submitted to, and accepted by, the Company is to ship regardless of any circumstances that may exist at the destination of such product as determined by Customer, and regardless of whether the Company is aware of any particular circumstance at the destination of such product as determined by Customer.  The Company shall not be responsible for any damages, costs or expenses in connection with or relating to any breach of any Sales Order or, if applicable, the Customer Agreement caused by or directly resulting from a fire, earthquake, flood, outbreak of disease, sickness, virus (including, but not limited to, avian influenza) or other act of God, explosion, strikes or lockouts, war, terrorist act, riots and civil commotions, quarantine, or act, including, but not limited to, change in regulation or law, of any governmental agency, domestic or foreign, or branch of the armed forces.  The Company shall notify Customer in the event of such breach or potential breach and estimate the time necessary to correct the condition.  In the event the performance of the Sales Order or, if applicable, the Customer Agreement is rendered impossible or impractical due to a force majeure, the time of the performance of the applicable Sales Order(s) or, if applicable, Customer Agreement, shall be extended for a period equal to the period during which such force majeure event is occurring, plus a reasonable amount of time thereafter.  If such performance is rendered impossible or impractical for a period longer than ninety (90) calendar days, either party hereunder shall have the right to terminate performance of the remaining obligations upon ten (10) calendar days’ prior written notice to the other party.

Governing Law; Submission to Jurisdiction.  The Customer Agreement, if applicable, and these General Terms and Conditions, and all rights and obligations of the parties hereunder and thereunder, including offer or acceptance by the parties, shall in all respects be governed by, and construed and enforced according with, the laws of the Commonwealth of Massachusetts (the “State”) of the United States of America, including the Uniform Commercial Code as adopted in the State.   Any issue pertaining to the validity, construction, execution or performance of the Sales Order and, if applicable, Customer Agreement shall be construed and governed in accordance with the laws of the State, without regard to (i) any conflicts of laws principles thereof or (ii) the principles of comity of nations.  If the products purchased hereunder are purchased by Customer and Customer resides in a country other than the United States, then the parties agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from the Sales Order and, if applicable, the Customer Agreement.

The parties hereby irrevocably consent to exclusive personal jurisdiction in the State and agree that any claim brought hereunder or in connection with THE SALES ORDER OR, IF APPLICABLE, THE Customer Agreement shall be brought before a federal or state court sitting in Boston, Massachusetts.  Customer hereby irrevocably agrees to the personal jurisdiction of such courts and waives any objection to jurisdiction and agrees to accept service of process by United States certified or registered mail (return receipt requested), or by recognized international courier, or by any other means authorized by the laws of the STATE or United States of America.

ANY ACTION BROUGHT TO ENFORCE THIS AGREEMENT OR ANY OTHER DOCUMENT ANCILLARY TO THIS DOCUMENT OR ANY ACTION RELATING TO THE TRANSACTIONS CONTEMPLATED HEREBY OR THE RELATIONSHIPS CREATED BY OR UNDER THE SALES ORDER OR, IF APPLICABLE, CUSTOMER AGREEMENT (“ACTION”) SHALL, AT THE ELECTION OF COMPANY, BE IN (AND IF ANY ACTION IS ORIGINALLY BROUGHT IN ANOTHER VENUE, THE ACTION SHALL AT THE ELECTION OF COMPANY BE TRANSFERRED TO) A STATE OR FEDERAL COURT OF APPROPRIATE JURISDICTION LOCATED IN THE STATE. CUSTOMER HEREBY WAIVES ANY AND ALL PERSONAL RIGHTS UNDER THE LAWS OF ANY OTHER STATE OR COUNTRY TO OBJECT TO JURISDICTION WITHIN THE STATE FOR PURPOSES OF ANY ACTION.  CUSTOMER hereby waives and agrees not to assert, as a defense to any Action or a motion to transfer venue of any Action, (i) any claim that it is not subject to such jurisdiction; (ii) any claim that any Action may not be brought against it or is not maintainable in those courts or that thE CUSTOMER AGREEMENT may not be enforced in or by those courts, or that it is exempt or immune from execution; (iii) that the Action is brought in an inconvenient forum; or (iv) that the venue for the Action is in any way improper. 

WAIVER OF JURY TRIAL.  EACH OF THE PARTIES HERETO KNOWINGLY, INTENTIONALLY AND IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY ACTION RELATED TO OR ARISING OUT OF THE CUSTOMER AGREEMENT OR THESE GENERAL TERMS AND CONDITIONS.

Attorneys’ Fees.  In the event any legal action is brought for enforcement of the Sales Order or, if applicable, the Customer Agreement, including the General Terms and Conditions, the successful or prevailing party shall be entitled to recover reasonable attorneys’ fees and other costs incurred in connection with such action, in addition to any other relief to which such party may be entitled.

Waiver.  Any provision of the Customer Agreement, if applicable, and any Sales Order may be waived only by a written instrument signed by both of the parties hereto.  The waiver by either party of a breach or default by the other party of any provision hereof shall not operate or be construed as a waiver of any other continuing or subsequent breach or default by such party.

Assignment.  The Sales Order and, if applicable, the Customer Agreement may not be assigned or otherwise transferred by Customer, including by operation of law, in whole or in part, without the prior written consent of the Company.  A sale or transfer of more than fifty percent (50%) of the equity interests in Customer shall be deemed to be an assignment prohibited hereby.  Subject to the foregoing, the Sales Order and, if applicable, Customer Agreement shall inure to the benefit of and be binding upon Customer and its successors and permitted assigns.