Terms of Sale

This document (the “Agreement”) contains the terms and conditions by which North American Bioproducts Corporation (“NABC”), shall sell the goods and services specified on the purchase order on the reverse hereof (the “Products”) to you (the “Buyer”) for delivery and use in the United States of America. NABC’s acceptance of your purchase order constitutes express agreement to the terms and conditions contained herein. Terms and conditions of any previous offer of Buyer are hereby rejected. Any of Buyer’s terms and conditions which are in addition to or different from those contained herein and which are not separately agreed to in writing are hereby rejected and shall be of no effect.

1. PRICE AND PAYMENT TERMS

1.1 Prices for the Products are exclusive of all city, state, and federal excise taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, use and similar taxes. Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by the Buyer.

1.2 In addition to the purchase price for the Products, Buyer shall pay and be liable for all of Buyer’s expenses incurred by NABC for insurance, freight, cartage, warehousing, and all other charges in connection with loading and shipping the Products to the Buyer.

1.3 Buyer shall pay all amounts payable to NABC hereunder when due, time being of the absolute essence. In the event of failure of timely payment by Buyer, Buyer shall pay to NABC the entire amount due hereunder and attorneys’ fees of fifteen percent (15%) of all principal and interest owing, plus all costs of collection, if collected by or through an attorney-at-law.

1.4 Payment for the Products shall, if NABC so requires, be made in full prior to delivery and NABC shall be entitled to withhold delivery until such payment has been made and any check or other negotiable instrument given in payment has cleared. NABC shall have the additional right at any time to limit or cancel any credit extended or to be extended hereunder. Upon failure by Buyer to make payment to NABC within thirty (30) days after notice from NABC limiting or canceling any credit extended or requiring Buyer to make payment before delivery, NABC shall have the option to cancel this and other contracts between NABC and Buyer. In such an event, in addition to its other remedies, NABC may resell all or any part of the Products undelivered under contract within thirty (30) days notice at public or private sale and Buyer shall be liable to NABC for the difference between the resale price and the price at which Buyer agreed to buy the Products together with incidental damages.

2. TITLE/ RESERVATION OF SECURITY INTEREST

2.1 Until Buyer has completed payment for the Products, title and ownership to said Products shall remain with NABC and its assigns, and NABC hereby reserves and Buyer hereby grants to NABC a purchase money security interest in the Products. The Products shall at all times be located at the place to which delivery is to be made as indicated on the purchase order on the reverse hereof unless written approval is obtained from NABC for removal to some other place.

2.2 If the Buyer defaults in the payment of any part of the purchase price as herein provided at any maturity date as to any payment or fails to comply with or defaults in any of the material provisions of this Agreement, or in the event that a petition for a receiver or in reorganization or in bankruptcy is filed by or against Buyer, or whenever NABC or its assigns shall deem themselves insecure, then in any such event the full amount of the purchase price remaining unpaid shall become immediately due and payable at the option of NABC or its assigns, and the Buyer agrees to return any Products on demand, if not yet fully paid for, and NABC or its assigns may without notice of demand and without any legal process enter into any premises where the Products are located to take immediate possession thereof and to make such disposition deemed by NABC or its assigns as desirable. All payments made shall be retained as liquidated damages for the use of the Products and not as a penalty.

2.3 Until payment for the Products has been completed, Buyer may not sell, transfer, convey, pledge, hypothecate or otherwise use the Products as security for any borrowing or for any other purposes. A violation of this provision shall cause an immediate default of Buyer’s obligations under this agreement.

3. COMPLIANCE WITH LAWS; EXPORT CONTROLS

Unless otherwise agreed to by the parties in writing, all sales by NABC herein are for domestic use only. Buyer shall comply with all applicable laws, rules and regulations arising in connection with this Agreement and Buyer’s purchase and use of the Products. Without limiting the foregoing, this Agreement is made subject to any restrictions under the export control laws, rules and regulations concerning the export of products, materials or technical information either from the United States of America or to a foreign national within the United States of America (e.g., a “deemed export” applying to transfers solely within the United States of America) which may be imposed upon or related to Buyer from time to time by the government of the United States of America. In connection therewith, Buyer agrees that it will not export, directly or indirectly, the Products provided or arising under this Agreement to any country or foreign national for which the United States government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining the written consent to do so from NABC and the Department of Commerce or other agency of the United States government when required by an applicable statute or regulation.

4. RISK OF LOSS

Unless otherwise specifically agreed in writing, risk of loss of the Products shall pass from NABC to Buyer when the Products or any portion thereof, properly packed and secured in such a manner as to reach their destination in good condition under normal conditions of transport, are placed in the possession of the carrier, FOB NABC shipping point for shipment to Buyer. NABC may choose any reasonable carrier for delivery. Tender of delivery shall be deemed made at NABC shipping point even when freight is prepaid to point of destination or NABC is required to deliver the Products to a particular destination.

5. INSURANCE

Buyer shall specifically insure the Products against “all risks,” subject to normal exclusions, from the time that the risk of loss passes to Buyer, during the loading of Products to carrier, transport and unloading, and continuously thereafter until all amounts owed by Buyer to NABC are paid in full to NABC. Evidence of such insurance satisfactory to NABC shall be submitted by Buyer prior to shipment or NABC may procure such insurance at Buyer’s expense.

6. INTELLECTUAL PROPERTY/PROPRIETARY INFORMATION

6.1 NABC’s logo, name, and other marks indicated on the Products are the subject of applications for trademarks or registered trademarks of North American Bioproducts Corporation and may not be used in connection with any product or service in any manner that is likely to cause confusion among NABC customers or in any manner that disparages or discredits NABC. All intellectual property rights (including but not limited to patents, copyright, design rights and trademarks) in, and all inventions, discoveries or improvements relating to, the Products and any materials or documentation relating thereto (including, but not limited to all sample kits, operation guides, technical specifications, pricing schedules or any other written materials supplied by NABC to Buyer) shall as between the Buyer and NABC belong to NABC. The sale of Products by NABC does not convey any license, by implication, estoppel or otherwise, to use or practice any patent claims or other intellectual property of NABC covering the Products, parts or other devices or elements related thereto.

6.2 No proprietary information disclosed by NABC to Buyer in connection herewith shall be disclosed to any person or entity other than Buyer’s employees and contractors directly involved with the Buyer’s use of such information who agree to protect the confidentiality of such information, and such information shall otherwise be protected by the Buyer from disclosure to others with the same degree of care accorded to its own proprietary information. Information will not be subject to this provision if it is or becomes a matter of public knowledge without the fault of the Buyer, if it was a matter of written record in the Buyer’s files prior to disclosure to it by NABC, or if it was or is received by the Buyer from a third person under circumstances permitting its unrestricted disclosure by NABC. Upon termination of this Agreement, Buyer shall promptly deliver to NABC all proprietary information in the possession or control of and all copies thereof.

7. INDEMNIFICATION

7.1 BY NABC: Except as provided below, NABC shall defend Buyer from and against any claim that the Products infringe a valid United States patent, trademark or copyright or infringe a trade secret of a third party, provided that (i) Buyer shall have promptly provided NABC written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (ii) NABC shall have sole control and authority with respect to the defense, settlement, or compromise thereof. Should any Products delivered hereunder become or, in NABC's opinion, be likely to become the subject of such a claim, NABC may, at its option, either (x) procure for Buyer the right to continue purchasing and using such Products, or (y) replace or modify such Products so that they become non-infringing, or (z) request that Buyer return such Products and, upon receipt, reimburse Buyer the full purchase priced paid for such Products as full and complete satisfaction for any claims Buyer may have against NABC arising from such infringement. In such event, NABC may withhold further shipments of infringing or potentially infringing NABC Products.

NABC shall have no liability or obligation to Buyer hereunder with respect to any patent, trademark, copyright or trade secret infringement or claim thereof based upon (i) compliance with designs, plans or specifications of Buyer, (ii) use of the Products by Buyer or any agents or customers of Buyer in combination with, or the incorporation or imbedding of the Products into, devices or products not purchased hereunder where the Products alone would not be infringing, (iii) use of the Products by Buyer in an application or environment for which such Products were not designed or contemplated, (iv) modifications of the Products by Buyer or any agents or customers of Buyer, or (v) any claims of infringement of a patent, trademark, copyright or trade secret in which Buyer or any affiliate or customer of Buyer has an interest or license.

NABC's liability under this Paragraph 7.1 shall not exceed the purchase price paid by Buyer for Products found to be infringing. The foregoing Paragraph 7.1 states the entire liability of NABC with respect to infringement of patents, trademark, copyrights and trade secrets by NABC's Products or any part thereof or by their operation.

7.2 BY BUYER: Buyer shall defend and indemnify NABC from and against any damages, liabilities, claims, proceedings, suits, costs and expenses (including reasonable attorneys' fees and court costs) incurred by NABC as a result of or arising from Buyer's activities including, without limitation, product liability, personal property damage, intellectual property infringement, customer warranty and service claims, provided that (i) NABC shall have promptly provided Buyer written notice thereof and reasonable cooperation, information and assistance in connection therewith, and (ii) Buyer shall have sole control and authority with respect to the defense, settlement or compromise thereof.

8. EXCLUSIVE WARRANTIES/ EXPRESS WAIVER OF REMEDIES

THE PARTIES AGREE THAT ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF QUALITY, PERFORMANCE, MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTIES BY NABC, EITHER EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE, OR ANY AFFIRMATION OF FACT OR REPRESENTATION WHICH EXTENDS BEYOND THE DESCRIPTION OF THE FACE HEREOF ARE EXCLUDED TO THE FULLEST EXTENT PERMISSIBLE BY LAW.

UNDER NO CIRCUMSTANCES WILL NABC, ITS AFFILIATES OR ITS OR THEIR SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE FOR: (A) ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS, BUSINESS, REVENUES OR SAVINGS , EVEN IF NABC HAS BEEN ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES OR IF SUCH DAMAGES ARE OTHERWISE FORESEEABLE, IN EACH CASE, WHETHER A CLAIM FOR ANY SUCH LIABILITY IS PREMISED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY OF LIABILITY; (B) ANY CLAIMS, DEMANDS OR ACTIONS AGAINST BUYER BY ANY THIRD PARTY; (C) ANY LOSS OR CLAIM ARISING OUT OF OR IN CONNECTION WITH BUYER'S IMPLEMENTATION OF ANY CONCLUSIONS OR RECOMMENDATIONS BY NABC OR ITS AFFILIATES BASED ON, RESULTING FROM, ARISING OUT OF OR OTHERWISE RELATED TO THE PRODUCTS. BUYER IS SOLELY RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE GOVERNMENTAL REGULATIONS AS THEY RELATE TO THE PRODUCTS. BUYER SHALL INDEMNIFY AND HOLD HARMLESS NABC FROM ANY ACTIONS WHICH MAY ARISE OUT OF OMISSIONS BY THE BUYER.

THE MAXIMUM DAMAGES RECOVERABLE UNDER ANY LEGAL THEORY, WHATSOEVER, IN THE EVENT OF BREACH OF ANY WARRANTY BY NABC, EXPRESSED OR IMPLIED, OR OF THIS AGREEMENT OR UNDER ANY CIRCUMSTANCES SHALL BE LIMITED TO THE PURCHASE PRICE OF THE PRODUCTS. BUYER AGREES THAT NO OTHER REMEDY (INCLUDING, BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR LOST PROFITS, LOST SALES, OR ANY OTHER INCIDENTAL OR CONSEQUENTIAL LOSS) SHALL BE AVAILABLE TO IT UNDER ANY CIRCUMSTANCES.

Buyer, having the expertise and knowledge in the ethanol production process and the intended use of NABC’s products and any use or other product or material made therefrom, assumes all risk and liability for results obtained or damages incurred by its use of the Products, whether used singly or in combination with other substances or in any process. All technical advice, services and recommendations by NABC and its representatives or affiliates are intended for use by persons having skill and know-how in the ethanol production process. Buyer further acknowledges that many process variables may affect the performance of fermentation/conversion processing aids and that these variables are out of the control of NABC and NABC cannot be held liable for such variables outside of its control.

9. DELAY/FORCE MAJEURE NABC

shall not be liable for delay in shipment for any cause beyond its reasonable control, nor shall such delay entitle Buyer to cancel any order or refuse to accept delivery NABC shall not be held responsible or liable for any delay or failure in the delivery of the Products to the extent that such delay or failure is caused, directly or indirectly, by fire, flood, explosion, accidents, acts of God, war, labor disturbances, commercial frustrations, failure of any subcontractor or the usual sources of supplies of any products or materials used in the manufacture thereof, delays by carriers, embargo, law, regulation, ruling, order or requirement of any government or government agency or court or tribunal, military authority, equipment failures or any other cause beyond NABC’s control, including, without limitation, delays due to Buyer’s acts, omissions or rush circumstances. In the event of any such cause that permits performance of NABC of some, though not all, of its obligations to the Buyer, NABC will be entitled to the benefit of this Paragraph at its option.

10. NON-DISPARAGEMENT

Each party agrees that it shall not, in any communications with any third party, including, but not limited to any customer, client or supplier of a party, ridicule or make any statement which disparages or is derogatory of the other party, the other party’s affiliates, any of the other party’s respective directors or senior officers, or any products or services offered by the other party.

11. AUTHORITY OF PARTIES AND BINDING EFFECT

Each party hereto hereby represents and warrants that it has the power and authorization to enter into this Agreement and carry out its terms. The rights and obligations of NABC and Buyer hereunder shall be binding upon and inure to the benefit of each of their respective successors, assigns, and legal representatives.

12. MODIFICATIONS

This Agreement constitutes the entire agreement of the parties with respect to the terms and conditions of sale of the Products specified herein. This Agreement supersedes any other agreement, representation or statement made by NABC prior to the date these terms and conditions are issued to Buyer. No modification of this Agreement shall be binding upon the parties unless in writing and signed by the party to be bound. The requirement that any modification will be in writing cannot be waived unless the waiver of this requirement is in writing. Any terms and provisions contained in any document of the Buyer which are inconsistent with the terms and provisions hereof shall not be binding on NABC and shall not be considered applicable to the sale or shipment of the Products. No agent, employee or representative of NABC other than its officers has any authority to bind NABC to any affirmation, representation or warranty concerning the Products sold under this Agreement and unless an affirmation, representation or warranty made by an agent, employee, or representative is specifically included within this Agreement, it has not formed a part of the basis of this bargain and shall not in any way be enforceable or actionable.

13. WAIVER

Waiver by NABC of a breach by Buyer of any provision of this Agreement shall not be deemed a waiver of future compliance with the provision of the Agreement breached.

14. ASSIGNMENT

No right or interest in this Agreement shall be assigned by Buyer without the written consent of NABC, and no delegation of any obligation by Buyer shall be made without the written permission of NABC. Any attempted assignment or delegation shall be wholly void and totally ineffective for all purposes unless made in conformity with this paragraph.

15. SEVERABILITY CLAUSE

If any paragraph or part thereof is determined to be invalid, all remaining paragraphs of the Agreement and all terms not invalidated shall be considered severable from the invalidated provision.

16. NOTICES

All notices and other official communications required or permitted pursuant to this Agreement shall be in writing and shall be mailed, faxed or delivered to the other party at the address set forth in the accompanying Purchase Order (or at such other address as may be specified hereafter in writing by any party hereto to the other party hereto in accordance with this Paragraph), and shall be effective and deemed received (a) if mailed, three (3) days after placement in the mail, postage prepaid, by registered or certified mail, return receipt requested; (b) if faxed, when received; or (c) if personally delivered, when delivered.

17. APPLICABLE

LAW Regardless of the place of contract¬ing, place of performance, or otherwise, this Agreement and all amendments, modifications, alter¬ations, or supplements hereto, and the rights of the parties hereunder, shall be construed, and governed by, the laws of the State of Georgia, United States of America without regard to the U.N. Convention on the International Sale of Goods.

18. EXCLUSIVE JURISDICTION

In the event of any legal action, Buyer, to the extent it may lawfully do so, hereby submits to the exclusive jurisdiction of any state or federal court located in Gwinnett County, Georgia. Buyer further submits to the exclusive jurisdiction of all Georgia courts from which an appeal may be taken from the aforesaid courts. The Buyer expressly waives any objections based on personal jurisdiction or venue in any of these Georgia courts. The Buyer further agrees that it may be validly served with any legal process in connection with the foregoing by the mailing of a copy thereof by registered or certified mail at is address shown on the reverse hereof.