Warranty
2014-09-27
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25/9/2014 FORM ES104 (2010)
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Terms and Conditions for Sale of Products and Services
Form ES 104 (Rev. 4)
NOTICE: Sale of any Products 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quotation shall expire 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s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 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 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 Services, including adjustments (if
any) in accordance with the Contract.
“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 a receiver 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 “Terms and Conditions for Sale of Products and Services”, 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.
2. Payment
2.1 Buyer shall pay Seller for the Products and Services by paying all invoiced amounts in U.S. dollars, without set-off for
any payment from Seller not due under this Contract, within thirty (30) days from the invoice date. If the Contract Price is
less than U.S. Two Hundred Fifty Thousand Dollars ($250,000), Seller shall issue invoices upon shipment of Products and as
Services are performed. If the Contract Price is U.S. Two Hundred Fifty Thousand Dollars ($250,000) or more, progress
payments shall be invoiced starting with twenty-five percent (25%) of the Contract Price for Products and Services upon the
earlier of Contract signature or issuance of Seller’s order acknowledgement and continuing such that ninety percent (90%) of
the Contract Price for Products is received before the earliest scheduled Product shipment and Services are invoiced as
performed (“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 1.5% per month on the overdue balance, or the maximum rate permitted by law,
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whichever is less.
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
Progress Payments or acceptable Payment Security, Seller shall be entitled to a matching extension of the schedule. 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 2010). For export shipments,
Seller shall deliver Products to Buyer FCA Port of Export (Incoterms 2010). 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. Delivery times are approximate and are dependent upon prompt receipt
by Seller of all information necessary to proceed with the work without interruption. 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 that do not involve export, title to Products shall pass to Buyer upon delivery in accordance with Section
4.1. For 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. 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. The 1982 United Nations Convention of the law
of the Sea shall apply to determine the U.S. territorial seas. For all other shipments, title to Products shall pass to Buyer the
earlier of (i) the port of export immediately after Products have been cleared for export or (ii) immediately after each item
departs from the territorial land, seas and overlying airspace of the sending country. 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. Notwithstanding the foregoing, Seller grants only a 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
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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.
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.
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. 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.
5.3 If Products or Services do not meet the above warranties, Buyer shall promptly notify Seller in writing prior to expiration
of the 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
Services. Warranty repair, replacement or re-performance by Seller shall not extend or renew the applicable warranty period.
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 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 on failure of or defect in Products or Services,
regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty,
indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided 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
OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.
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 (a) information that is designated in writing as “confidential” or “proprietary” by Disclosing Party at the time of written
disclosure, and (b) information that is orally designated as “confidential” or “proprietary” by Disclosing Party at the time of
oral or visual disclosure and is confirmed to be “confidential” or “proprietary” in writing within twenty (20) days after the oral
or visual disclosure. In addition, prices for Products and 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 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
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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. 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 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 or Services that have been modified, or revised, (b) the combination of any Products or Services with other products
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 or Services, or (e) Products or
Services made or performed to Buyer’s specifications.
7.3 Should any Product 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 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 or Services and refund the price
received by Seller attributable to the infringing Products or Services.
7.4 Article 7 states Seller’s exclusive liability for intellectual property infringement by Products and Services.
7.5 Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Contract. 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.
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.
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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. Excusable Events
Seller shall not be liable or considered in breach of its obligations under this Contract to the extent that Seller’s performance is
delayed or prevented, directly or indirectly, by any cause beyond its reasonable control, or by armed conflict, acts or threats of
terrorism, epidemics, strikes or other labor disturbances, or acts or omissions of any governmental authority or of the Buyer or
Buyer’s contractors or suppliers. If an excusable event occurs, the schedule for Seller’s performance shall be extended by the
amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. 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 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. In addition, Buyer shall pay
Seller a cancellation charge equal to 80% of the Contract Price applicable to uncompleted made-to-order Products and 15% of
the Contract Price applicable to all other uncompleted Products.
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. In such case, Buyer
shall pay to Seller amounts payable under Section 11.4, excluding the cancellation charge for uncompleted Products.
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.
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12.2 Seller’s obligations are conditioned upon Buyer’s compliance with all U.S. and other applicable trade control laws and
regulations. Buyer shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of
destination declared by Buyer and specified as the country of ultimate destination on Seller’s invoice.
12.3 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.
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14. Changes
14.1 Each party may at any time propose changes in the schedule or scope of Products or Services. 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. However, no adjustment will be
made on account of a general change in Seller’s manufacturing or repair facilities resulting from a change in laws or
regulations applicable to such facilities. 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 The total liability of Seller for all claims of any kind arising from or related to the formation, performance or breach of
this Contract, or any Products 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 US
dollars (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.
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 If Buyer is supplying Products or Services to a third party, or using Products or Services at a facility owned by a third
party, Buyer shall either (i) indemnify and defend Seller from and against any and all claims by, and liability to, any such third
party in excess of the limitations set forth in this Article 15, or (ii) require that the third party agree, for the benefit of and
enforceable by Seller, to be bound by 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,
warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over
any conflicting terms, except to the extent that such terms further restrict Seller’s liability.
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 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”). If
the Contract includes the sale of Products and the Buyer is outside the Seller’s country, the United Nations Convention on
Contracts for the International Sale of Goods shall apply.
16.2 All disputes 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 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 Cobb County, Georgia or the location of Buyer’s principal place of business; or
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(b) if the Buyer’s pertinent place of business is outside the U.S., the dispute shall be submitted to and finally resolved by
arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The number of arbitrators shall
be one, selected in accordance with the ICC rules, unless the amount in dispute exceeds the equivalent of U.S. $5,000,000, in
which event it shall be three. When three arbitrators are involved, each party shall appoint one arbitrator, and those two shall
appoint the third within thirty (30) days, who shall be the Chairman. The seat, or legal place, of arbitration, shall be London,
England. The arbitration shall be conducted in English. In reaching their decision, the arbitrators shall give full force and
effect to the intent of the parties as expressed in the Contract, and if a solution is not found in the Contract, shall apply the
governing law of the Contract. The decision of the arbitrator(s) shall be final and binding upon both parties, and neither party
shall seek recourse to a law court or other authority to appeal for revisions of the decision.
16.3 Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to
immediately 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 to enforce the confidentiality provisions set forth in Article 6 and/or the
nuclear use restrictions set forth in Section 19.1, or to seek interim or conservatory measures. Monetary damages shall only
be available in accordance with Section 16.2.
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, PCB 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 Lease Addendum shall apply. If Seller provides remote diagnostic services to Buyer, the Remote Diagnostic
Services Addendum shall apply. If Seller provides PCB Services to Buyer, the PCB Services Addendum shall apply. If there
is any conflict between these “Terms and Conditions for the Sale of Products and Services, Form ES 104” 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 for use in connection with any nuclear facility or activity, and
Buyer warrants that it shall not use or permit others to use Products or Services for such purposes, without the advance written
consent of Seller. If, in breach of this, any such use occurs, Seller (and its parent, affiliates, suppliers and subcontractors)
disclaims all liability for any nuclear or other damage, injury or contamination, and, in addition to any other rights of Seller,
Buyer shall indemnify and hold Seller (and its parent, affiliates, suppliers and subcontractors) harmless against all such
liability. Consent of Seller to any such use, if any, will be conditioned upon additional terms and conditions that Seller
determines to be acceptable for protection against nuclear liability.
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.
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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 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) and in Section 19.1 (no nuclear use), this Contract is only for
the benefit of the parties, and no third party shall have a right to enforce any provision of this Contract, whether under the
English Contracts (Rights of Third Parties) Act of 1999 or otherwise.
19.8 This Contract may be signed in multiple counterparts that together shall constitute one agreement.
20. US 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 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 American Recovery Reinvestment 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 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.
