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ORCA WATER TECHNOLOGIES, LLC TERMS OF USE

WELCOME TO THIS WEBSITE. ORCA Water Technologies, LLC (“ORCA Water Technologies”) OFFERS THIS SITE TO YOU SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS ("Terms"). YOUR USE OF THIS SITE SHALL BE YOUR AGREEMENT TO ABIDE BY EACH OF THE TERMS SET FORTH BELOW. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, PLEASE DO NOT USE THIS SITE. IF YOU HAVE ANY QUESTIONS ABOUT THESE TERMS, PLEASE CONTACT info@orcawt.com.

General Use Restrictions

ORCA Water Technologies or third parties granting rights to ORCA Water Technologies hold all right, title, and interest in and to the materials on this Site, which are the copyrighted work of ORCA Water Technologies or such third parties. ORCA Water Technologies grants you a limited, personal, non-exclusive and non-transferable license to use and display the materials only on your personal computer only for purposes associated with your interaction with this ORCA Water Technologies website. Except as stated herein, you have no right to copy, download, display, perform, reproduce, distribute, modify, edit, alter or enhance any of the materials in any manner. This limited license terminates automatically, without notice to you, if you breach any of these Terms. Upon termination, you must immediately destroy any downloaded and printed materials. You have no right, title or interest (and no copyright, trademark or other intellectual property right) in or to the Site or any materials and you agree not to "frame" or "mirror" the Site, any material contained on or accessible from this Site on any other server or Internet-based device without the advanced written authorization of ORCA Water Technologies. ORCA Water Technologies does not routinely monitor your postings to the Site but reserves the right to do so. However, in our efforts to promote good citizenship within the Internet community, if ORCA Water Technologies becomes aware of inappropriate use of the Site, ORCA Water Technologies will respond in any way that, in its sole discretion, ORCA Water Technologies deems appropriate. You acknowledge that ORCA Water Technologies will have the right to report to law enforcement authorities any actions that may be considered illegal, as well as any reports it receives of such conduct. When requested, ORCA Water Technologies will cooperate fully with law enforcement agencies in any investigation of alleged illegal activity on the Internet.
 

STANDARD TERMS AND CONDITIONS OF SALE

  1. DEFINITIONS AND INTERPRETATIONS

    “ORCA”means ORCA Water Technologies, LLC and subsidiary, divisions or trading units of ORCA Water Technologies, LLC;
    “Buyer” means the person firm or company so described in the Order;
    “Conditions”means the standard terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any varied or special terms and conditions agreed in writing between ORCA and the Buyer;
    “Contract”means the contract of the sale and supply of the Goods and/or the supply and performance of the Services subject to these Conditions;
    “Goods”means the Goods (including any instalment of the Goods or any part of them) described in the Order;
    “Order”means any written quotation of ORCA which is accepted by the Buyer, or any written order of the Buyer which is accepted by ORCA for the supply of Goods or performance of Services;
    “Price”means the Price of the Goods and/or the charge for the Services;
    “Specification”includes any plans, drawings, data, chemical formula or process or other technical requirements or information including ORCA’s web site relating to the Goods or Services agreed between the parties;

  2. GENERAL BASIS OF SALE

    1. These Conditions apply to all Contracts for sale of Goods by ORCA.
    2. The placing of an Order by the Buyer for the Goods shall constitute acceptance of these Conditions notwithstanding any other terms and conditions subject to which any quotation by ORCA is accepted or purported to be accepted or any such order is made or purported to be made by the Buyer.
    3. No Order submitted by the Buyer shall be deemed to be accepted by ORCA unless and until confirmed in writing by ORCA’s authorised representative.
    4. No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and ORCA.
    5. The Buyer acknowledges that all advice, instructions or recommendations of ORCA rely and are dependent upon all the information and technical background given to ORCA by the Buyer.
    6. Where the Buyer does not specify a particular process, ORCA will not be liable for any defect or failure of the process or entitle the Buyer to withhold payment if ORCA have dispensed with such inspection on request of the Buyer for whatever reason.

  3. ORDERS AND SPECIFICATIONS

    1. The Buyer shall be responsible to ORCA for ensuring the accuracy of the terms of any Order (including any applicable Specification) submitted by the Buyer, and for giving ORCA any necessary information relating to the Goods pursuant to clause II.5 or otherwise within a sufficient time to enable ORCA to perform the Contract in accordance with its terms.
    2. The quantity, quality, description, functionality, facilities, functions, capacity and description of the Goods shall, subject as provided in these Conditions, be as specified in the Order and any applicable Specification as set out either in ORCA’s quotation or in the web site of ORCA or any documents referred to in the Order. In the event of conflict, preference will be given to ORCA’s web site.
    3. All drawings, illustrations or any product literature or other publications of ORCA must be regarded as approximations only.
    4. Any Specification supplied by ORCA to the Buyer in connection with the Contract, together with all intellectual property rights in the Specification, shall be the exclusive property of ORCA. The Buyer shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Buyer, or as required for the purpose of the Contract. Upon request of ORCA the Buyer will return to ORCA any documents (or other media) in or upon which any part of the Specification has been supplied by ORCA and shall not retain copies thereof.
    5. If the Goods are to be manufactured or any process is to be applied to the Goods by ORCA in accordance with a Specification submitted by the Buyer, the Buyer shall indemnify ORCA against all loss, damages, costs and expenses awarded against or incurred by ORCA in connection with any claim for infringement of any intellectual property rights of any other person which results from ORCA’s use of the Specification so submitted by the Buyer.
    6. ORCA reserves the right to make any changes in the Specification of the Goods which are required to conform with any statutory or other regulatory requirements applicable to the Goods.
    7. No Order which has been accepted by ORCA may be cancelled by the Buyer except with the agreement in writing of ORCA and on terms that the Buyer shall indemnify ORCA in full against all loss, costs, damages, charges and expenses incurred by ORCA as a result of cancellation.
    8. No order which has been accepted by ORCA may be changed or altered by the Buyer except with the agreement in writing of ORCA and payment by the Buyer of a 10% surcharge (calculated as 10% of the Price) to ORCA.

  4. PRICE OF THE GOODS

    1. The Price shall be ORCA’s quoted price. The Price quoted is valid for 30 days only, after which time they may be altered by ORCA without giving notice to the Buyer.
    2. ORCA reserves the right, by giving notice to the Buyer at any time before delivery, to increase the Price to reflect any increase in the cost to ORCA which is due to any factor beyond the control of ORCA, any change in delivery dates, quantities or the Specifications which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give ORCA adequate or accurate information or instructions.
    3. Except as otherwise stated under the terms of the Order and unless otherwise agreed in writing between the Buyer and ORCA, the Price is given by ORCA on an ex works basis, and where ORCA agrees to deliver the Goods otherwise than at ORCA’s premises, the Buyer shall be liable to pay ORCA’s charges for transport, packaging and insurance.
    4. The Price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to ORCA.

  5. TERMS OF PAYMENT

    1. Subject to any special terms agreed in writing between the Buyer and ORCA, ORCA shall be entitled to invoice the Buyer for the Price on or at any time after delivery of the Goods or the Buyer wrongfully fails to take delivery of the Goods, in which event ORCA shall be entitled to invoice the Buyer for the Price at any time after ORCA has notified the Buyer that the Goods are ready for collection or (as the case may be) ORCA has tendered delivery of the Goods.
    2. The Buyer shall pay the Price within 30 days of the date of ORCA’s invoice unless otherwise notified by ORCA to the Buyer in writing, and ORCA shall be entitled to recover the Price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the Price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
    3. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to ORCA, ORCA shall be entitled to:
      1. cancel the Contract or suspend any further deliveries to the Buyer;
      2. allocate any payment made by the Buyer to such of the Goods (or goods and/or services supplied under any other contract between the Buyer and ORCA) as ORCA may think fit (notwithstanding any purported appropriation by the Buyer); and
      3. charge the Buyer interest (both before and after any allocation) on the amount unpaid, at the rate of 4 per cent per annum above JP Chase Morgan Prime Rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) before and after judgment.

  6. DELIVERY

    1. Delivery of the Goods shall be made to some place agreed by ORCA, by ORCA delivering the Goods to that place.
    2. Any dates quoted for delivery of the Goods are approximate only and ORCA shall not be liable for any early or late delivery of the Goods however caused.
    3. Where delivery of the Goods is to be made by ORCA in bulk, ORCA reserves the right to deliver up to 2½ per cent more or 2½ per cent less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
    4. Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by ORCA to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
    5. If ORCA fails to deliver the Goods (or any instalment), ORCA’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the Price of the Goods.
    6. If the Buyer fails to take delivery of the Goods or fails to give ORCA adequate delivery instructions at the time stated for delivery (otherwise than by reason of any Force Majeure or by reason of ORCA’s fault) then, without prejudice to any other right or remedy available to ORCA, ORCA may:
      1. store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
      2. sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Price or charge the Buyer for any shortfall below the Price under the Contract.
    7. Any charges quoted for delivery of the Goods including transport, packaging and insurance are approximate only and ORCA shall not be liable for any changes to the charges quoted however caused.

  7. RISK AND PROPERTY

    1. Risk of damage to or loss of the Goods shall pass to the Buyer:
      1. in the case of Goods to be delivered at ORCA’s premises, at the time when ORCA notifies the Buyer that the Goods are available for collection; or
      2. in the case of Goods to be delivered otherwise than at ORCA’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when ORCA has tendered delivery of the Goods.
    2. The property in the Goods shall not pass to the Buyer until ORCA has received in cash or cleared funds payment in full of the Price and all other goods agreed to be sold by ORCA to the Buyer for which payment is then due.
    3. Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as ORCA’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as ORCA’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
    4. Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), ORCA shall be entitled at any time to require the Buyer to deliver up the Goods to ORCA and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.

  8. BUYER'S WARRANTIES AND ASSUMPTION OF DUTIES REGARDING SAFETY, HEALTH, UNLOADING, USE, HANDLING AND DISPOSAL OF THE GOODS

    1. Buyer has received a material safety data sheet (MSDS) which sets forth information concerning goods and describes certain precautions to be taken in the storage, handling, and use of the same. Buyer assumes the following duties and obligations.
      1. Buyer will familiarize itself with all information and precautions disclosed in safety and health information, including but not limited to any MSDS, transmitted to Buyer and ORCA before or during the term of this contract, or any such information supplied to Buyer by ORCA or otherwise available to Buyer from ORCA at any other time.
      2. Buyer will adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to goods, including but not limited to, all such practices required by federal, state, and local government statutes, rules, regulations, and ordinances.
      3. Buyers will instruct its employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation and disposal of goods, including, but not limited to, information contained in ORCA's most current MSDS; and
      4. Buyer will comply with applicable safety and environmental laws and take action necessary to avoid spills or other dangers to personal property or the environment.
    2. Buyer warrants that it has used its own independent skill and expertise in connection with the selection and use of goods and that it possesses skill and expertise in the handling, storage, transportation, treatment, use and disposal of the goods.

  9. ORCA'S LIMITED WARRANTY - SUBJECT TO THE LIMITATION OF PARAGRAPH X, XI, AND XII.

    1. ORCA warrants that at the time of render the goods will conform to ORCA's then current sales specifications for the goods described on the face of this document, that they will be fit for ordinary uses explicitly identified for such goods in ORCA's then current product literature, that ORCA will convey good title thereto, and that such goods will be delivered free from any lawful security interest, lien, or encumbrance.

  10. EXCLUSION AND DISCLAIMER OF ALL OTHER WARRANTIES

    1. The limited warranties contained in paragraph IX above are ORCA's sole warranties with respect to the goods. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT AS EXPRESSLY STATED HEREIN.

  11. WARRANTIES

    1. Buyer's exclusive remedy and ORCA's total liability to Buyer for claims (as defined in subparagraph XI.2 below) is expressly limited as follows: Buyer has the option of replacement of or credit of the purchase price paid for the goods supplied hereunder with respect to which damages are claimed. Buyer waives all other claims by Buyer against ORCA. ORCA under no circumstances shall be liable to Buyer for any incidental, consequential, special, exemplary or punitive damages to any person r property.
    2. As used in paragraph XI and XII "claims" means all assertions of any legal, equitable, and/or admiralty causes of action (including but not limited to negligence; strict liability; other tort; express or implied warranty; indemnity or contract; contribution; or subrogation) related to or arising out of the performance or nonperformance of this contract or the goods purchased hereunder.
    3. All limitations of Buyer's remedies and ORCA's liabilities shall survive the expiration, termination or cancellation of this contract.

  12. NOTICE OF CLAIM

    1. All claims by Buyer shall be deemed waived unless made by Buyer in writing and received by ORCA within 60 days of the receipt of the goods; provided that for any claim which is not readily discoverable within such 60 day period such a claim shall be deemed waived unless made by Buyer in writing and received by ORCA within 180 days after receipt of the goods or within 30 days after Buyer learns or should have been reasonably aware of facts which should have rise to such claim, whichever first occurs. In case of breakage or loss in transit, Buyer shall also note the breakage or loss on the carrier's proof of delivery document signed by the carrier's representative.

  13. INTELLECTUAL PROPERTY INDEMNITY

    1. If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes any intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, ORCA shall reimburse the Buyer against all reasonable loss and damages awarded against or incurred by the Buyer in connection with the claim, provided that ORCA is given full control of any proceedings or negotiations in connection with any such claim and the Buyer shall give all assistance to ORCA as it may require and take such steps as ORCA may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which ORCA is liable to indemnify the Buyer under this clause.

  14. BUYERS INDEMNITY

    1. The Buyer shall indemnity ORCA and keep it indemnified for the duration of the Contract against all injury (including death) to any persons and any loss and/or damage as a result of any act, default or negligence by the Buyer and its employees or agents (other than ORCA or its sub-contractors) and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever in respect thereof or in relation thereto.

  15. INSOLVENCY OF BUYER

    1. If the Buyer makes any voluntary arrangement with its creditors or becomes bankrupt or becomes subject to an administration order or goes into liquidation or ORCA reasonably apprehends that any of the events mentioned above is about to occur then ORCA shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.

  16. GENERAL

    1. ORCA shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of ORCA’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond ORCA’s reasonable control.
    2. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that party as its registered office or principle place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
    3. No waiver by ORCA of any breach of the Contract by ORCA shall be considered as a waiver of any subsequent breach of the same or any other provision.
    4. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
    5. The Contract and its performance shall be governed by laws of the State of Illinois.

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