Products and/or Services Terms and Conditions

NOTICE:  Sale of any Products and/or Services is expressly conditioned on Buyer's assent to these Terms and Conditions.  Any acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer. No facility entry form shall modify these Terms and Conditions even if signed by Seller’s representative.  Any order to perform work and Seller's performance of work shall constitute Buyer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation, Seller’s quotation expires 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s conforming acceptance.

1.  Definitions

"Buyer" means the entity to which Seller is providing Products and/or Services under the Contract.

"Contract" means either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products and/or Services, together with these Terms and Conditions, Seller’s final quotation, the agreed scope(s) of work, and Seller’s order acknowledgement.  In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.

 “Contract Price” means the agreed price stated in the Contract for the sale of Products and/or Services, including adjustments (if any) in accordance with the Contract.

 “Derivative Works” means: (a) any work based upon one or more pre-existing works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, extension or any other form in which such pre-existing works may be published, recast, transformed, or adapted, and that if prepared without the authorization of the owner of the copyright or other intellectual property right to such pre-existing works, would constitute an infringement of such copyright or other intellectual property right, and/or (b) any compilation that incorporates such pre-existing works.

 “Hazardous Materials” means any toxic or hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good, radioactive material, petroleum or petroleum-derived products or by-products, or any other chemical, substance, material or emission, that is regulated, listed or controlled pursuant to any national, state, provincial, or local law, statute, ordinance, directive, regulation or other legal requirement of the United States (“U.S.”) or the country of the Site.

 “Insolvent/Bankrupt” means that a party is insolvent, makes an assignment for the benefit of its creditors, has an administrator, receiver, liquidator or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy, insolvency dissolution or liquidation laws.

 “Products” means the equipment, parts, materials, supplies, software, and other goods Seller has agreed to supply to Buyer under the Contract.

"Seller" means the entity providing Products or performing Services under the Contract.

 “Services” means the services Seller has agreed to perform for Buyer under the Contract.

"Site" means the premises where Products are used or Services are performed, not including Seller’s premises from which it performs Services.

 “Terms and Conditions” means these “Products and/or Services Terms and Conditions”, including any relevant addenda pursuant to Article 18, together with any modifications or additional provisions specifically stated in Seller’s final quotation or specifically agreed upon by Seller in writing.

“USD” means United States Dollars.

2.     Payment

2.1  Buyer shall pay Seller for the Products and/or Services by paying all invoiced amounts by direct bank transfer in the currency specified by Seller in the Contract, without deduction, withholding or set-off for any payment or claim, within thirty (30) days from the invoice date.  If the Contract Price is less than two hundred fifty thousand USD ($250,000), Seller shall issue invoices upon shipment of Products and as Services are performed.  If the Contract Price is two hundred fifty thousand USD ($250,000) or more, progress payments shall be invoiced starting with twenty-five percent (25%) of the Contract Price for Products and/or Services upon the earlier of Contract signature or issuance of Seller’s order acknowledgement and continuing such that the Contract Price for remaining Services is invoiced as they are performed and ninety percent (90%) of the Contract Price for Products is received before the earliest scheduled Product shipment (“Progress Payments”).  For each calendar month, or fraction thereof, that payment is late, Buyer shall pay a late payment charge computed at the rate of one and one-half percent (1.5%) per month on the overdue balance, or the maximum rate permitted by law if it is less.  If the price is set by the Contract in a currency other than USD, references to USD in this Section 2.1 shall mean the equivalent amount in the applicable currency. If the cost of materials and or labor to Seller performing its obligations under the Contract from the date of the proposed Contract Price until the date of delivery can be shown to have increased (when comparing applicable internationally recognized indices), then the Contract Price shall be adjusted to reflect such level of inflationary increase. The increase in the Contract Price will be calculated according to the direct impact of the indices and will be invoiced separately at the time of delivery. 

2.2  As and if requested by Seller, Buyer shall at its expense establish and keep in force payment security in the form of an irrevocable, unconditional, sight letter of credit or bank guarantee allowing for pro-rata payments as Products are shipped and Services are performed, plus payment of cancellation and termination charges, and all other amounts due from Buyer under the Contract (“Payment Security”).  The Payment Security shall be (a) in a form, and issued or confirmed by a bank acceptable to Seller, (b) payable at the counters of such acceptable bank or negotiating bank, (c) opened at least sixty (60) days prior to both the earliest scheduled shipment of Products and commencement of Services, and (d) remain in effect until the latest of ninety (90) days after the last scheduled Product shipment, completion of all Services and Seller’s receipt of the final payment required under the Contract.  Buyer shall, at its expense, increase the amount(s), extend the validity period(s) and make other appropriate modifications to any Payment Security within ten (10) days of Seller’s notification that such adjustment is necessary in connection with Buyer’s obligations under the Contract.

2.3  Seller is not required to commence or continue its performance unless and until any required Payment Security is received, operative and in effect and all applicable Progress Payments have been received.  For each day of delay in receiving any Progress Payments or acceptable Payment Security, Seller shall be entitled to an equitable extension of time to durations or periods of time (if any) expressly agreed to by the Parties in the written schedule for performance and/or completion of the Services or any parts thereof.  If at any time Seller reasonably determines that Buyer’s financial condition or payment history does not justify continuation of Seller’s performance, Seller shall be entitled to require full or partial payment in advance or otherwise restructure payments, request additional forms of Payment Security, suspend its performance or terminate the Contract.

3.  Taxes and Duties

Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Contract (“Seller Taxes”).  Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Seller or its subcontractors) in relation to the Contract or the performance of or payment for work under the Contract other than Seller Taxes ("Buyer Taxes").  The Contract Price does not include the amount of any Buyer Taxes.  If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Contract Price without reduction for Buyer Taxes.  Buyer shall provide to Seller, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.

4.  Deliveries; Title Transfer; Risk of Loss; Storage

4.1 For shipments that do not involve export, including shipments from one European Union (“EU”) country to another EU country, Seller shall deliver Products to Buyer FCA Seller’s facility or warehouse (Incoterms 2020).  For export shipments, Seller shall deliver Products to Buyer FCA Port of Export (Incoterms 2020).  Buyer shall pay all delivery costs and charges or pay Seller’s standard shipping charges plus up to twenty-five (25%) percent.  Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule.  If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within ten (10) days after receipt.

4.2  For shipments within the same country, title to Products shall pass to Buyer upon delivery in accordance with Section 4.1.  For shipments from the U.S. to another country, title shall pass to Buyer immediately after each item departs from the territorial land, seas and overlying airspace of the U.S., except where the delivery terms are FCA, FAS, and FOB (Incoterms 2020), then title shall pass to Buyer immediately when each item is handed over to Buyer’s appointed carrier at Seller’s premises or other named delivery place in the U.S.  The 1982 United Nations Convention of the law of the Sea shall apply to determine the U.S. territorial seas.  Title to goods shipped from China, India or Mexico for delivery to a different country shall pass after such goods have crossed the territorial land, seas, exclusive economic zone or overlying airspace of such respective source countries, as applicable.    

For shipments from the United Kingdom (UK) or European Union ("EU"), title to Products shall pass to Buyer the earlier of (i) the port of export immediately upon clearance of Products for export or (ii) immediately after each item departs from the territorial land, seas and overlying airspace of the sending country. For all other export shipments from a Seller facility or warehouse outside the U.S., title shall pass to Buyer upon delivery in accordance with Section 4.1.  When Buyer arranges the export or intercommunity shipment, Buyer will provide Seller evidence of exportation or intercommunity shipment acceptable to the relevant tax and custom authorities. Where Seller is responsible for importing, or directly or indirectly reimburses Buyer for import costs, Buyer agrees to have import arranged through the agency of one of Seller’s approved global customs brokers, whereby Seller will provide required support for instructions.  If Buyer arranges for any import of Parts, Buyer may not use any third party vendor for providing customs clearance services until Seller has approved such party prior to shipment of the Parts.  Notwithstanding the foregoing, Seller grants only a non-exclusive license, and does not pass title, for any software provided by Seller under this Contract, and title to any leased equipment remains with Seller.

4.3  Risk of loss shall pass to Buyer upon delivery pursuant to Section 4.1, except that for export shipments from the U.S., risk of loss shall transfer to Buyer upon title passage. 

4.4  If any Products to be delivered under this Contract or if any Buyer equipment repaired at Seller’s facilities cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer or its other contractors, Seller may ship the Products and equipment to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder.  If Seller places Products or equipment into storage, the following apply:  (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller’s invoices; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products and repaired equipment available to Buyer for delivery.

4.5  If repair Services are to be performed on Buyer’s equipment at Seller’s facility, Buyer shall be responsible for, and shall retain risk of loss of, such equipment at all times, except that Seller shall be responsible for damage to the equipment while at Seller’s facility to the extent such damage is caused by Seller’s negligence.

4.6  Except as otherwise expressly agreed to by the Parties in writing, acceptance of Products shall be deemed to occur upon delivery; acceptance of Services shall be deemed to occur upon performance of the Services. Acceptance shall not be delayed by delays in provision of documentation or other non-conformances which do not prevent operation of Buyer’s equipment, nor by requirements which the Contract contemplates may be carried out after acceptance.

5.  Warranty

5.1  Seller warrants that Products shall be delivered free from defects in material, workmanship and title and that Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications incorporated into the Contract.

5.2  The warranty for Products shall expire one (1) year from first use or eighteen (18) months from delivery, whichever occurs first, except that software is warranted for ninety (90) days from delivery; and the warranty for Services shall expire one (1) year after performance of the Service, except that software-related Services are warranted for ninety (90) days from the performance of the Services (as applicable, the “Warranty Period”).

5.3  If Products and/or Services do not meet the above warranties, Buyer shall promptly notify Seller in writing prior to expiration of the applicable Warranty Period.  Seller shall (i) at its option, repair or replace defective Products and (ii) re-perform defective Services.  If despite Seller’s reasonable efforts, a non-conforming Product cannot be repaired or replaced, or non-conforming Services cannot be re-performed, Seller shall refund or credit monies paid by Buyer for such non-conforming Products and/or Services.  Warranty repair, replacement or re-performance by Seller shall not extend or renew the applicable Warranty Period. Seller’s warranty obligations exclude the repair or replacement of any damaged parts or Products other than the initially failing part which caused the damage. Buyer shall obtain Seller’s agreement on the specifications of any tests it plans to conduct to determine whether a non-conformance exists.

5.4  Buyer shall bear the costs of access for Seller’s remedial warranty efforts (including removal and replacement of systems, structures or other parts of Buyer’s facility), de‑installation, decontamination, re‑installation and transportation of defective Products to Seller and back to Buyer.

5.5  The warranties and remedies are conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products, (b) Buyer keeping accurate and complete records of operation and maintenance during the warranty period and providing Seller access to those records, and (c) modification or repair of Products and/or Services only as authorized by Seller in writing.  Failure to meet any such conditions renders the warranty null and void.  Seller is not responsible for normal wear and tear.

5.6  This Article 5 provides the exclusive remedies for all claims based upon the failure of or defect in Products or Services, whether the claim is based in contract, negligence, statute, or any tortious/extra-contractual liability theory, strict liability or otherwise.  The foregoing warranties in this Article 5 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory.  NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.  FOR ALL CANADIAN CONTRACTS, THE SALE OF GOODS ACT, AS ENACTED BY EACH PROVINCE OF CANADA, SHALL NOT APPLY.

6.  Confidentiality

6.1  Seller and Buyer (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information in connection with this Contract. “Confidential Information” means information that is designated in writing as “confidential” or “proprietary” by Disclosing Party at the time of written disclosure.  In addition, prices for Products and/or Services shall be considered Seller’s Confidential Information.

6.2  Receiving Party agrees: (i) to use the Confidential Information only in connection with the Contract and use of Products and/or Services, (ii) to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party.  Notwithstanding these restrictions, (a) Seller may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Contract, (b) a Receiving Party may disclose Confidential Information to its auditors, (c) Buyer may disclose Confidential Information to lenders as necessary for Buyer to secure or retain financing needed to perform its obligations under the Contract, and (d) a Receiving Party may disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non-disclosure commitment from any such subcontractors, auditors, lenders or other permitted third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible for any unauthorized use or disclosure of the Confidential Information.  Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Contract entitles Receiving Party to retain an item of Confidential Information.  Seller may also retain one archive copy of Buyer’s Confidential Information.

6.3  The obligations under this Article 6 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party’s knowledge, subject to a confidentiality obligation to Disclosing Party; (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information.

6.4  Each Disclosing Party warrants that it has the right to disclose the information that it discloses.  Neither Buyer nor Seller shall make any public announcement about the Contract without prior written approval of the other party. As to any individual item of Confidential Information, the restrictions under this Article 6 shall expire five (5) years after the date of disclosure.  Trade secrets that are contained in or comprise Confidential Information are to be protected for the life of the trade secret. Article 6 does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.

7.  Intellectual Property

7.1 Seller shall defend and indemnify Buyer against any claim by a non-affiliated third party (a “Claim”) alleging that Products and/or Services furnished under this Contract infringe a patent in effect in the U.S., an EU member state or the country of the Site (provided there is a corresponding patent issued by the U.S. or an EU member state), or any copyright or trademark registered in the country of the Site, provided that Buyer (a) promptly notifies Seller in writing of the Claim, (b) makes no admission of liability and does not take any position adverse to Seller, (c) gives Seller sole authority to control defense and settlement of the Claim, and (d) provides Seller with full disclosure and reasonable assistance as required to defend the Claim.

7.2  Section 7.1 shall not apply and Seller shall have no obligation or liability with respect to any Claim based upon  (a) Products and/or Services that have been modified, or revised, (b) the combination of any Products and/or Services with other products and/or services when such combination is a basis of the alleged infringement, (c) failure of Buyer to implement any update provided by Seller that would have prevented the Claim, (d) unauthorized use of Products and/or Services, or (e) Products and/or Services made or performed to Buyer’s specifications.

7.3  Should any Product and/or Service, or any portion thereof, become the subject of a Claim, Seller may at its option (a) procure for Buyer the right to continue using the Product and/or Service, or applicable portion thereof, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b), take back infringing Products and/or discontinue infringing Services and refund the price received by Seller attributable to the infringing Products and/or Services.

7.4  Article 7 states Seller’s exclusive liability for intellectual property infringement by Products and/or Services. 

7.5  Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Contract.  All rights in and to software not expressly granted to Buyer are reserved by Seller.  All new intellectual property conceived or created by Seller in the performance of this Contract, whether alone or with any contribution from Buyer, shall be owned exclusively by Seller.   Buyer agrees to deliver assignment documentation as necessary to achieve that result.

7.6  Buyer will not itself, and will not allow any party (including Buyer Affiliates) to: (i) reverse engineer Products or Services (including any Seller monitoring or data analysis by Seller), (ii) prepare Derivative Works from, alter, modify, disassemble, reverse engineer, reverse assemble, de-compile, or otherwise attempt to reconstruct, discover or derive the object or source code of any software licensed to Buyer by Seller under this Contract (including any third party software); (iii) permit or otherwise grant any third-party access to Products, Services or software for such purpose, even if such third party is performing any corrections, bug fixes and updates.

7.7 Products furnished by Seller under this Contract shall not be installed, used, or made available for use in any equipment other than the equipment specified in the Contract at Buyer’s Site. Buyer warrants that such equipment, and the Site, is under its ownership and control, and agrees to inform Seller forthwith should this cease to be the case at any time before expiry of the Warranty Period.

8.  Indemnity

Each of Buyer and Seller (as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract.  In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Seller, the loss or expense shall be borne by each party in proportion to its degree of negligence.  For purposes of Seller’s indemnity obligation, no part of the Products or Site is considered third party property.

9.  Insurance

During the term of the Contract, Seller shall maintain for its protection the following insurance coverage: (i) Worker’s Compensation, Employer’s Liability and other statutory insurance required by law with respect to work related injuries or disease of employees of Seller in such form(s) and amount(s) as required by applicable laws; (ii) Automobile Liability insurance with a combined single limit of $2,500,000.00; and (iii) Commercial General Liability or Public Liability insurance for bodily injury and property damage with a combined single limit of $2,500,000.00.  If required in the Contract, Seller shall provide a certificate of insurance reflecting such coverage.

10.  Schedule and Excusable Events

10.1  Any durations or periods of time quoted on the schedule or otherwise agreed for delivery of Products shall be regarded as estimated only.  In addition, delivery times are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption. If Seller agrees in writing to guaranteed delivery and/or completion times and specific sums as liquidated damages for late delivery or completion, any such liability for damages shall only commence when the period of delay  (i) exceeds the guaranteed date or time by fourteen (14) calendar days and liquidated damages may be applied and be levied only from that fourteenth (14^th) day onwards and (ii) directly inhibits Buyer’s scheduled electric power and other process generation. Payment of liquidated damages shall be in full and final settlement of any and all liability of the Seller for delays under the Contract and shall be Buyer’s sole and exclusive remedy for failing to achieve the delivery and/or completion guarantee. The Seller’s maximum aggregate liability for liquidated damages for delay shall in no circumstances exceed five percent (5%) of the total amount of the Contract Price paid to the Seller.

10.2  Seller shall not be liable and shall not be considered in breach of any obligations to supply manpower, deliver Products or to execute, deliver or complete the Services or any parts thereof within specified durations or periods or by a specified time if it is delayed or prevented, directly or indirectly, by any cause beyond its reasonable control, or by armed conflict, acts or threats of terrorism, epidemics, pandemics (including COVID and any variants), quarantines, strikes or other labor disturbances, or acts or omissions of any governmental authority (including, but not limited to, changes in applicable laws or regulations) or of the Buyer or Buyer’s contractors or suppliers, or for any period of suspension under Section 11.3 (whether existing, foreseen or unforeseen).  If any such cause or excusable event occurs, Seller’s impacted schedule shall be adjusted accordingly and dates or times stated in that schedule as may be needed to overcome the effect of the event. Seller shall also be entitled to an equitable adjustment of the price to compensate for all increases in Seller’s cost of the execution of the Services or delivery of Products due to such cause or excusable event, subject to Seller’s obligations to work in good faith with Buyer to mitigate the impact of such event(s).  If acts or omissions of the Buyer or its contractors or suppliers cause the delay, Seller shall also be entitled to an equitable price adjustment.

11.  Termination and Suspension

11.1  Buyer may terminate the Contract (or the portion affected) for cause if Seller (i) becomes Insolvent/Bankrupt, or (ii) commits a material breach of the Contract which does not otherwise have a specified contractual remedy, provided that: (a) Buyer shall first provide Seller with detailed written notice of the breach and of Buyer’s intention to terminate the Contract, and (b) Seller shall have failed, within 30 days after receipt of the notice, to commence and diligently pursue cure of the breach. 

11.2  If Buyer terminates the Contract pursuant to Section 11.1, (i) Seller shall reimburse Buyer the difference between that portion of the Contract Price allocable to the terminated scope and the actual amounts reasonably incurred by Buyer to complete that scope, and (ii) Buyer shall pay to Seller (a) the portion of the Contract Price allocable to Products and/or Services completed, (b) lease fees incurred, and (c) amounts for Services performed before the effective date of termination.  The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at Seller’s then-current standard time and material rates.

11.3  Seller may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if Buyer (i) becomes Insolvent/Bankrupt, or (ii) materially breaches the Contract, including, but not limited to, failure or delay in Buyer providing Payment Security, making any payment when due, or fulfilling any payment conditions.

11.4  If the Contract (or any portion thereof) is terminated for any reason other than Seller’s default under Section 11.1, Buyer shall pay Seller for all Products completed, lease fees incurred and Services performed before the effective date of termination, plus expenses reasonably incurred by Seller in connection with the termination.  The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at Seller’s then-current standard time and material rates. All work in progress shall be paid for at Seller’s standard time and material rates. In addition, Buyer shall pay Seller a cancellation charge equal to eighty (80%) of the Contract Price applicable to uncompleted made-to-order Products and/or Services and fifteen (15%) of the Contract Price applicable to all other uncompleted Products and/or Services.   

11.5  Either Buyer or Seller may terminate the Contract (or the portion affected) upon twenty (20) days advance notice if there is an excusable event  (as described in Article 10) lasting longer than one hundred and twenty (120) days or if it is not possible to avoid or mitigate such excusable event without unreasonable burden through an adjustment in schedule, price and other provisions of the Contract within such one hundred and twenty (120) days.  In such case, Buyer shall pay to Seller amounts payable under Section 11.4, excluding the cancellation charge for uncompleted Products and/or Services.

11.6  Buyer shall pay all reasonable expenses incurred by Seller in connection with a suspension, including, but not limited to, expenses for repossession, fee collection, demobilization/remobilization, and costs of storage during suspension. The schedule for Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.

12.  Compliance with Laws, Codes and Standards

12.1  Seller shall comply with laws applicable to the manufacture of Products and its performance of Services.  Buyer shall comply with laws applicable to the application, operation, use and disposal of the Products and Services.

12.2  Seller’s obligations are conditioned upon Buyer’s compliance with all U.S., EU, United Kingdom (UK), Switzerland (CH) and other applicable trade control laws and regulations.  Buyer shall not transship, re-export, divert or otherwise make or allow any disposition of goods, , to any country other than trans-ship, re-export, divert or direct or otherwise make or allow any disposition of US, UK, EU, and CH origin Products or goods, Software, third-party software or other material or technical data, or the direct product thereof, supplied by Seller under this Agreement other than in and to the ultimate country of destination Buyer facility that Buyer declared and which is specified as the country of ultimate destination on Seller’s invoice. A material violation of this Section 12.2 by Buyer, including the obligation not to re-export, is a material breach pursuant to Section 11.1. 

12.3 Buyer hereby certifies that the equipment, materials, services, technical data, software or other information or assistance furnished by Seller under this Contract will not be used in the design, development, production, stockpiling or use of chemical, biological, or nuclear weapons.  Changes in applicable trade control laws and regulations shall be subject to Section 10.2.

12.4  Notwithstanding any other provision, Buyer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import licenses, environmental impact assessments, and foreign exchange authorizations, required for the lawful performance of Services at the Site or fulfillment of Buyer’s obligations, except that Seller shall obtain any license or registration necessary for Seller to generally conduct business and visas or work permits, if any, necessary for Seller’s personnel.  Buyer shall provide reasonable assistance to Seller in obtaining such visas and work permits.               

13.   Environmental, Health and Safety Matters

13.1  Buyer shall maintain safe working conditions at the Site, including, without limitation, implementing appropriate procedures regarding Hazardous Materials, confined space entry, and  energization and de-energization of power systems (electrical, mechanical and hydraulic) using safe and effective lock-out/tag-out (“LOTO”) procedures including physical LOTO or a mutually agreed upon alternative method. 

13.2  Buyer shall timely advise Seller in writing of all applicable Site-specific health, safety, security and environmental requirements and procedures.  Without limiting Buyer’s responsibilities under Article 13, Seller has the right but not the obligation to, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the Site. 

13.3  If, in Seller’s reasonable opinion, the health, safety, or security of personnel or the Site is, or is apt to be, imperiled by security risks, terrorist acts or threats, the presence of or threat of exposure to Hazardous Materials, or unsafe working conditions, Seller may, in addition to other rights or remedies available to it, evacuate some or all of its personnel from Site, suspend performance of all or any part of the Contract, and/or remotely perform or supervise work.  Any such occurrence shall be considered an excusable event.  Buyer shall reasonably assist in any such evacuation. 

13.4  Operation of Buyer’s equipment is the responsibility of Buyer.  Buyer shall not require or permit Seller’s personnel to operate Buyer’s equipment at Site.  

13.5  Buyer will make its Site medical facilities and resources available to Seller personnel who need medical attention. 

13.6  Seller has no responsibility or liability for the pre-existing condition of Buyer’s equipment or the Site.  Prior to Seller starting any work at Site, Buyer will provide documentation that identifies the presence and condition of any Hazardous Materials existing in or about Buyer’s equipment or the Site that Seller may encounter while performing under this Contract.  Buyer shall disclose to Seller industrial hygiene and environmental monitoring data regarding conditions that may affect Seller’s work or personnel at the Site.  Buyer shall keep Seller informed of changes in any such conditions.

13.7  Seller shall notify Buyer if Seller becomes aware of: (i) conditions at the Site differing materially from those disclosed by Buyer, or (ii) previously unknown physical conditions at Site differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract.  If any such conditions cause an increase in Seller's cost of, or the time required for, performance of any part of the work under the Contract, an equitable adjustment in price and schedule shall be made.

13.8  If Seller encounters Hazardous Materials in Buyer’s equipment or at the Site that require special handling or disposal, Seller is not obligated to continue work affected by the hazardous conditions.  In such an event, Buyer shall eliminate the hazardous conditions in accordance with applicable laws and regulations so that Seller’s work under the Contract may safely proceed, and Seller shall be entitled to an equitable adjustment of the price and schedule to compensate for any increase in Seller’s cost of, or time required for, performance of any part of the work.  Buyer shall properly store, transport and dispose of all Hazardous Materials introduced, produced or generated in the course of Seller’s work at the Site.

13.9  Buyer shall indemnify Seller for any and all claims, damages, losses, and expenses arising out of or relating to any Hazardous Materials which are or were (i) present in or about Buyer’s equipment or the Site prior to the commencement of Seller’s work, (ii) improperly handled or disposed of by Buyer or Buyer’s employees, agents, contractors or subcontractors, or (iii) brought, generated, produced or released on Site by parties other than Seller.                

14.  Changes

14.1  Each party may propose changes in the schedule or scope of Products and/or Services.  Parties shall mutually agree on potential changes into the schedule or scope of a planned outage start date at least one hundred eighty (180) days before such start date to enable Seller’s ability to fulfill the request.  Seller is not obligated to proceed with any change until both parties agree upon such change in writing. The written change documentation will describe the changes in scope and schedule, and the resulting changes in price and other provisions, as agreed. 

14.2  The scope, Contract Price, schedule, and other provisions will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change, after Seller’s proposal date, in Buyer’s Site-specific requirements or procedures, or in industry specifications, codes, standards, applicable laws or regulations.  Unless otherwise agreed by the parties, pricing for additional work arising from such changes shall be at Seller’s time and material rates.

14.3  It shall be acceptable and not considered a change if Seller delivers a Product that bears a different, superseding or new part or version number compared to the part or version number listed in the Contract.

15.  Limitations of Liability

15.1  To the maximum extent permitted by applicable law, the total liability of Seller for all claims arising from or related to the formation, performance or breach of this Contract, or provision of any Products and/or Services, shall not exceed the (i) Contract Price, or (ii) if Buyer places multiple order(s) under the Contract, the price of each particular order for all claims arising from or related to that order and ten thousand USD (US $10,000) for all claims not part of any particular order.

15.2  Seller shall not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of capital, downtime costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claims of Buyer’s customers for any of the foregoing types of damages, or for any cost, loss or liability Buyer may suffer under any agreement by which it sells or transmits electricity to its customer(s) or third parties.

15.3  All Seller liability shall end upon expiration of the applicable warranty period, provided that Buyer may continue to enforce a claim for which it has given notice prior to that date by commencing an action or arbitration, as applicable under this Contract, before expiration of any statute of limitations or other legal time limitation but in no event later than one year after expiration of such warranty period.

15.4  Seller shall not be liable for advice or assistance that is not required for the work scope under this Contract.

15.5  Buyer will not supply Products and/or Services to any third party, or use Products and/or Services other than at the Site owned by Buyer. In case of non-compliance, Buyer shall (i) indemnify and defend Seller from and against any and all claims by, and liability to, any third party to whom Products and/or Services are supplied, and (ii) require that the third party agree, for the benefit of and enforceable by Seller, to be bound by the provisions of Article 7 and all the limitations included in this Article 15.

15.6  For purposes of this Article 15, the term “Seller” means Seller, its affiliates, subcontractors and suppliers of any tier, and their respective employees.  The limitations in this Article 15 shall apply regardless of whether a claim is based in contract, negligence, statute, indemnity, tortious/extra-contractual liability theory, strict liability or otherwise.

16.  Governing Law and Dispute Resolution

16.1  This Contract shall be governed by and construed in accordance with the laws of (i) the State of New York if Buyer’s place of business is in the U.S. or (ii) England and Wales, if the Buyer’s place of business is outside the U.S., in either case without giving effect to any choice of law rules that would cause the application of laws of any other jurisdiction (the “Governing Law”). 

16.2  All disputes and, to the maximum extent permitted by applicable law, all non-contractual obligations arising in any way whatsoever out of or in connection with this Contract arising in connection with this Contract, including any question regarding its existence or validity, shall be resolved in accordance with this Article 16.  If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management, to be held within twenty (20) business days after the giving of notice.  If the dispute is not resolved within thirty (30) business days after the giving of notice, or such later date as may be mutually agreed, either party may commence arbitration or court proceedings, depending upon the location of the Buyer, in accordance with one of the following:

(a)  if the Buyer’s pertinent place of business is in the U.S., legal action shall be commenced in federal court with jurisdiction applicable to, or state court located in, either New York, New York (and Buyer hereby consents to be subject to such New York federal and state jurisdiction); or

(b)  if the Buyer’s pertinent place of business is outside the U.S., the dispute shall be submitted to and finally resolved under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules (the “Rules”).  The seat of arbitration shall be in London, England.  The arbitration shall be conducted in English. The decision of the arbitrators shall be final and binding upon the parties.

16.3  Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Contract, to seek a restraining order, injunction, or similar order (but not monetary damages), or to seek interim or conservatory measures. 

17.  Inspection and Factory Tests

Seller will apply its normal quality control procedures in manufacturing Products.  Seller shall attempt to accommodate requests by Buyer to witness Seller’s factory tests of Products, subject to appropriate access restrictions, if such witnessing can be arranged without delaying the work. 

18.  Software, Leased Equipment, Remote Diagnostic Services

If Seller provides any software to Buyer, the Software License Addendum shall apply.  If Seller leases any of Seller’s equipment or provides related Services to Buyer, including placing Seller’s equipment at Buyer’s site to provide remote Services, the terms of the lease shall be governed by a separate Lease Agreement mutually agreed to between the parties.  If Seller provides remote diagnostic services to Buyer, the Remote Diagnostic Services Addendum shall apply.  If there is any conflict between these Products and/or Services Terms and Conditions” and the terms of any addendum incorporated pursuant to this Article 18, the terms of the addendum shall take precedence with respect to the applicable scope.

19.  General Clauses

19.1  Products and Services sold by Seller are not intended, in whole or in part, for application (and will not be used) in connection with or nearby any nuclear facility or activity, and Buyer warrants that it shall not use or permit others to use Products and/or Services for any such purposes, without the advance written consent of Seller.  IF, IN BREACH OF THE FOREGOING, ANY SUCH USE OCCURS, SELLER, ITS AFFILIATES, SUPPLIERS, AND SUBCONTRACTORS, SHALL HAVE NO LIABILITY FOR ANY NUCLEAR OR OTHER DAMAGE, INJURY OR CONTAMINATION, AND BUYER SHALL INDEMNIFY SELLER, ITS AFFILIATES, SUPPLIERS, AND SUBCONTRACTORS OF EVERY TYPE AND TIER AGAINST ANY SUCH LIABILITY, WHETHER ARISING AS A RESULT OF BREACH OF CONTRACT, WARRANTY, INDEMNITY, TORT/EXTRACONTRACTUAL LIABILITY (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.

19.2  Seller may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Contract to any party without Buyer’s consent.  Buyer agrees to execute any documents that may be necessary to complete Seller’s assignment or novation.  Seller may subcontract portions of the work, so long as Seller remains responsible for it.  The delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without Seller’s prior written consent (which consent shall not be unreasonably withheld) shall be void.

19.3  Buyer shall notify Seller immediately upon any change in ownership of more than fifty percent (50%) of Buyer's voting rights or of any controlling interest in Buyer.  If Buyer fails to do so or Seller objects to the change, Seller may (a) terminate the Contract, (b) require Buyer to provide adequate assurance of performance (including but not limited to payment), and/or (c) put in place special controls regarding Seller’s Confidential Information.

19.4  If any Contract provision is found to be void or unenforceable, the remainder of the Contract shall not be affected.  The parties will endeavor to replace any such void or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid and enforceable.

19.5  The following Articles shall survive termination or cancellation of the Contract:  2, 3, 4, 5, 6, 7, 8, 10,  11, 12, 13, 15, 16, 18, 19 and 20.

19.6 The Contract represents the entire agreement between the parties.  No oral or written representation or warranty not contained in this Contract shall be binding on either party.  Buyer’s and Seller’s rights, remedies and obligations arising from or related to Products and/or Services sold under this Contract are limited to the rights, remedies and obligations stated in this Contract.  No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing. 

19.7 Except as provided in Article 15 (Limitations of Liability), this Contract is only for the benefit of the parties and not for any third parties.

19.8 This Contract may be signed in multiple counterparts that together shall constitute one agreement.

20.  U.S. Government Contracts

20.1 This Article 20 applies only if the Contract is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government.

20.2 Buyer agrees that all Products and/or Services provided by Seller meet the definition of “commercial-off-the-shelf” (“COTS”) or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101.  To the extent the Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Contract, the country of origin of Products is unknown unless otherwise specifically stated by Seller in this Contract.   Buyer agrees any Services offered by Seller are exempt from the Service Contract Act of 1965 (FAR 52.222-41).   Buyer represents and agrees that this Contract is not funded in whole or in part by the U.S. Inflation Reduction Act funds unless otherwise specifically stated in the Contract.  The version of any applicable FAR clause listed in this Article 20 shall be the one in effect on the effective date of this Contract.

20.3 If Buyer is an agency of the U.S. Government, then as permitted by FAR 12.302, Buyer agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with these Terms and Conditions.  Buyer further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price.

20.4 If Buyer is procuring the Products and/or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Buyer agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price.