GENERAL TERMS AND CONDITIONS OF SALE

 

  1. ACCEPTANCE.  This instrument shall become a binding contract when signed by both Buyer and Seller.  In the absence of Buyer's signature, Buyer shall be bound by all the terms and conditions hereof ten (10) days after Buyer receives this form, unless Buyer gives Seller written notice of any objections thereto within such period, or when Buyer or anyone acting on its behalf, issues any instructions to Seller, or accepts delivery of any goods and merchandise covered by this Contract, whichever shall first occur.

  2. TAXES.  Prices do not include any taxes, now or hereafter applicable, which apply or may apply to goods and merchandise sold or to this transaction, which will be added by Seller to the sales price where Seller is required by law to collect same, and will be paid by Buyer unless Buyer provides Seller with a proper tax exemption certificate in form and substance satisfactory to Seller.

  3. CREDIT.  This order is given and accepted subject to limit of Buyer's credit determined at any time by Seller, affecting the whole or any unfilled portion of this Contract.  Seller, in its sole discretion, may, at any time, limit, modify or cancel the credit of Buyer both as to time and amount, and may demand payment in cash before shipment or delivery of the whole or any part of the goods and merchandise without affecting the obligation of the Buyer to complete the Contract.  Failure of the Buyer to make such payment after demand by Seller may at the option of Seller, be deemed a breach of the entire Contract.

  4. DELIVERY

    1. Unless otherwise provided herein, shipments of the goods and merchandise within the United States shall be delivered from 6-13 weeks from receipt of payment, and title and liability for loss or damage thereto shall pass to Buyer upon Seller's tender of delivery of such goods and merchandise to a carrier for shipment to Buyer, and any loss or damage thereafter shall not relieve Buyer from any obligation hereunder.

    2. Delivery may be made in installments.  A default in any payment by Buyer after delivery or offer of delivery of any installments may, at the option of Seller, be deemed a default as to the entire Contract.  The date of the bill of lading may or any receipt issued by the carrier, or the date of the Delivery Order shall be conclusive proof of the date of such shipment or delivery to Buyer.  Buyer shall take delivery promptly and Buyer shall pay any demurrage accrued by reason of Buyer's delay or default or repay same to Seller promptly after demand if Seller has paid same.

    3. Default or delay by Seller in shipping or delivering the whole or any part of installment of the goods and merchandise under the Contract shall not affect any other portion thereof nor shall it affect any other Contract between Buyer and Seller.  Any delivery or shipment of the whole or any part or installment made within fifteen (15) business days before or after the date(s) specified therefore shall constitute timely delivery or shipment.

    4. Seller shall not be liable to Buyer for any claim except non-delivery, unless such claim is made by Buyer to Seller in writing and specifying the grounds and nature thereof and the amount of damage within twenty (20) calendar days after the arrival of the goods and merchandise involved in such claim at the destination shown on the face hereof or at such other place(s) mutually agreed on by Buyer and Seller.  Failure to present the claim within the time fixed or to strictly comply with all requirements of this paragraph shall constitute an unconditional acceptance of the goods and merchandise are changed in any manner from their original condition.  In the event of any claim, Seller may, at its option, repair or replace the goods and merchandise claimed to be defective or credit the Buyer at the unit price in the Agreement in full satisfaction of such claim.

  5. PAYMENT. Unless otherwise agreed in writing, payment by Buyer shall be made in United States dollars and shall be made no later than fifteen (15) days from the date of Seller’s invoice to Buyer.  Payment as required by the terms of this Agreement must be made when due regardless of any claim by Buyer.  Buyer shall pay interest on the unpaid balance of all bills after the due date thereof at a rate of two (2%) percent higher than the prime rate then charged by Citibank, N.A. (or, in the event that such rate is unavailable, at the rate then charged by major New York banks) to substantial and responsible corporate borrowers; provided however, that if such interest rate shall be higher than that permitted by law, the Buyer shall pay interest at the highest rate permitted by law.

  6. EXPORT REGULATIONS

    1. Buyer represents and warrants that it shall not, directly or indirectly, export, reexport or transship products, technology or software ("the Commodities") in violation of any applicable U.S. export control laws and regulations or any other applicable export control laws promulgated and administered by the government of any country having jurisdiction over the parties of the transaction(s) contemplated herein.

    2. Seller shall have the right to refuse to accept Buyer orders for the Commodities, or to deliver the Commodities to fulfill any previously accepted Buyer order, if Seller determines, in good faith, that such proposed sale or other disposition of the Commodities poses an unreasonable risk of a violation of any applicable export control law or regulation.

    3. In the event Seller refuses to deliver the Commodities to fulfill previously accepted Buyer orders as set forth in the paragraph immediately preceding, or the necessary export or reexport authorizations are not obtained within a reasonable period of time, Seller, at its option, may cancel the order or contract, without penalty.

  7. GOVERNMENT PROCUREMENT REGULATIONS. If goods and merchandise are purchased under this Agreement for incorporation into products to be sold under a United States Government contract or subcontract, those clauses of applicable federal procurement regulations that are required pursuant to federal statute or regulation to be inserted in United States Government subcontracts shall be deemed to be incorporated in this Agreement subject to the following.  United States Government subcontract clauses will not be incorporated into Buyer’s purchase orders unless notice is given on the face of the purchase order, and Seller agrees to accept for that specific purchase order only.  Seller, however, reserves the right to reject, without penalty of any kind, purchase orders for goods and merchandise intended to be sold under a United States Government contract or subcontract.

  8. WARRANTY

    1. Notwithstanding expiration or termination of this Agreement, Seller warrants that for a period of eighteen (18) months from the date of shipment,  such Work (a) will be free from defects in material and workmanship, and (b) will comply with the specifications in all material respects.  These warranties do not cover the results of wear and tear, corrosion, accident, abuse, neglect, vandalism, act of God or the installation, use, repair or modification contrary to specifications or instructions supplied by Seller.

    2. Remedies for Nonconformance with Warranty.  If the Work does not conform with the foregoing warranties, Buyer shall notify Installer of the defect.  Installer, at its option, will repair or replace the Work or the defective component thereof free of charge.  If Seller determines that Work conformed to the warranties and was not defective, Buyer agrees to pay Seller's/, and or installers reasonable costs of inspection, handling and testing.  In no event shall Seller’s liability for removal and re-installation of equipment in connection with the warranty exceed $50,000 (fifty thousand dollars) per incident. The foregoing are Buyer‘s sole and exclusive remedies for breach of warranty by Seller in connection with this Agreement.

    3. Disclaimer of Warranty.  THE FOREGOING WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTIES GIVEN BY SELLER IN CONNECTION WITH THIS AGREEMENT, EXPRESS OR IMPLIED, AND SELLER DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  SELLER DOES NOT PROMISE THAT THE PRODUCT IS ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.  The liabilities set forth in this article shall constitute the entire liability of the Seller with respect to defects in the work, whether in contract, tort (including negligence), warranty, strict liability, or any other legal theory, and Seller’s obligation to correct defects, whether latent or patent, in the work shall be limited to defects discovered during the warranty period specified in this Clause.

  9. PATENT INDEMNIFICATION

    1. Seller agrees to defend, at its expense, any suit or proceeding brought against Buyer based upon a third-party claim of direct infringement of a U.S. patent by the Product(s) furnished hereunder.  Seller also agrees to hold Buyer harmless against actual damages for such direct infringement.

    2. Seller’s agreement to defend and its obligation to indemnify Buyer herein, which extends only to actual damages for direct infringement of a U.S, patent which are awarded against Buyer in such suit or proceeding, are subject to the following terms and conditions:

      1. The agreement and obligation shall arise only if the Buyer gives Seller prompt notice of the infringement claim; grants Seller, in writing, exclusive control over its defense and settlement; and provides reasonable information and assistance to Seller, at Seller’s expense, in the defense of such claim;

      2. The agreement and obligation will cover only the article as delivered by Seller to Buyer, and not to any modification or addition made by Buyer or third parties;

      3. The agreement and obligation shall not cover: (I) any claim based on the furnishing of any information, service or technical support to Buyer; or (II) any claim of infringement of any third party’s rights arising from use of any article furnished hereunder in combination with other articles if such infringement would be avoided by the use of the article alone, nor does it extend to any article furnished hereunder of Buyer’s design or formula; or (III) any claim that the use of the articles furnished hereunder infringes any third party’s process patent or (IV) any claim of infringement of any third party's rights in respect to patents where it is the policy of such third party to offer patent license agreements separately to end users of the Products furnished hereunder

    3. If an infringement claim is asserted, or if Seller believes one likely, Seller will have the right, but not the obligation: (I) to procure for Buyer the right to use the articles furnished hereunder for the use contemplated by the Seller and Buyer in making this Contract; or (II) to modify the articles furnished hereunder as appropriate to avoid such rightful claim of infringement as long as modification for this purpose does not materially impair the operation thereof; or (III) to accept the article returned and reimburse Buyer for the purpose thereof less a reasonable charge for wear and tear.

    4. The sale of any article hereunder does not convey any license by implication, estoppel, or otherwise covering combination of any article furnished hereunder with other devices or elements.

    5. Buyer shall indemnify and hold Seller and its supplier, installer harmless against any expense or liability from claims of patent infringement of an patent related to articles sold hereunder arising from: (I) Seller’s compliance with specifications or instructions furnished by the Buyer; (II) use of any article hereunder in connection with a manufacturing or other process; or (III) use of any article in combination with products not supplied by Seller.

THE FOREGOING STATES SELLER’S EXCLUSIVE OBLIGATION WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETATY RIGHTS OF ANY KIND, AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. IN NO EVENT SHALL SELLER’S TOTAL LIABILITY TO BUYER EXCEED THE PURCHASE PRICE OF THE ALLEGED INFRINGING ARTICLE.

  1. CONTINGENCIES.  This contract and Seller’s performance hereunder are subject to all contingencies beyond the control of Seller or Seller’s suppliers and installers (whether or not now on the contemplation of either of the parties). In any such event, Seller shall have the right, at its election and without liability to Buyer, to (a) cancel all or any portion of this Contract; or (b) perform this Contract as so restricted or modified to the extent determined by the Seller in its sole and absolute discretion; or (c) perform the Contract within a reasonable time after the causes for nonperformance or delay have terminated.

  2. PRICE INCREASES

    1. This contract is based on present freight rates and is subject to all present and future tariffs, import and export duties, border taxes and similar import surcharges and taxes which shall be solely at the cost and risk of Buyer. If any such rates or charges are included in the unit price of the Contract (whether or not shown as a separate charge) and shall be increased pending delivery, Buyer shall pay such increased rates or charges in addition to the unit price in the Contract.

    2. Notwithstanding any other provision in this Contract, in the event that:

Special or additional duties, including antidumping duties, are imposed on products which are the subject of this Contract, or

Seller's cost of products or its selling price is increased as a result of or in connection with the actions of any government and/or agency or instrumentality thereof, including any direction or recommendation to establish or implement some form of minimum price system (“Price Revision").

Seller shall have the right, subject to the provisions set forth in the succeeding paragraph, to increase the selling price or products by amount not to exceed the increase in said duties or the amount of the Price Revision, as of the effective date of such duties or Price Revision.

  1. CANCELLATION.  Except as otherwise agreed, Buyer shall not have the right to cancel or reschedule all or any portion or installment of the goods and merchandise covered by this Contract without the written consent of Seller.

  2. SPECIAL ORDERS.  Buyer understands and agrees that the case of goods and merchandise ordered hereunder are specially manufactured for Buyer, making it impractical for Seller to resell the goods and merchandise.  Buyer's refusal to accept delivery of all or any portion or installment of goods and merchandise shall entitle Seller to recover the contract price for any installment of the goods and merchandise as to which delivery has been refused; the value of work in process and the cost of material purchased by Seller or Seller's suppliers in order to manufacture the goods and merchandise specified in this Contract, together with Seller's incidental damages, including, but not limited to, commercially reasonable charges, expenses or commissions incurred in stopping delivery; the transportation, care, custody of the goods and merchandise after Buyer's breach; and reasonable attorney fees in enforcing Seller's rights hereunder.

  3. CHANGE ORDERS. Buyer may, at any time, by written Purchase Order Amendment, request changes within the general scope of this Purchase Order. If Seller believes that any change causes an increase or decrease in the cost of or the time required for the performance of any work under this Purchase Order, or in the terms and conditions, an equitable adjustment shall be made in the Purchase Order price, delivery schedule, or the terms and conditions, and the Purchase Order shall be modified in writing accordingly. Seller shall implement the requested  changes upon acceptance by Buyer of a modified Purchase Order.

  4. SELLER’S DEFAULT. Buyer has the right to terminate this Agreement on the thirtieth (30) day after Buyer gives Seller notice of a material breach of this Agreement, unless the breach is cured before that day or, if the breach is not susceptible of cure within such thirty (30) day period, unless Purchaser begins cure prior to the expiration of such thirty (30) day period and works diligently towards completing such cure.

  5. BUYER'S DEFAULT.  Payment as required by the terms of this Contract must be made when due regardless of any claim by Buyer.  Upon any default or breach in payment by Buyer, Seller, at its option by giving written notice to Buyer if its election so to do, may as to this Contract and any other contracts as may then exist between Buyer and Seller, cancel any or all or any part until such default or breach is cured and/or cancel any undelivered portions thereof and/or demand immediate payment of all outstanding bills of Buyer.  Seller shall not be limited to its right and remedies against Buyer to those set forth in this Contract, but shall have all of such other rights and remedies as may be available to it under law or otherwise.

  6. LIMITATIONS.  SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE.  THESE LIMITATIONS APPLY TO ALL CAUSED OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.  NO ACTION MAY BE BROUGHT AT ANY TIME MORE THAN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION AROSE, EXCEPT THAT AN ACTION MAY BE BROUGHT WITH RESPECT TO PAYMENT AT ANY TIME WITHIN THE APPLICABLE STATUTE OF LIMITATIONS.  IN NO EVENT WILL SELLER'S LIABILITY IN CONNECTION WITH THE PRODUCTS, OR THIS AGREEMENT EXCEED AMOUNTS PAID TO SELLER BY BUYER HEREUNDER.

  7. INDEMNIFICATION

    1. Buyer shall defend, indemnify and hold harmless Seller, its Subsuppliers and Subcontractors and Vendors from and against all third party claims, damages, losses and expenses, (including reasonable attorneys' fees and expenses) that directly or indirectly, arise out of or result from, but only to the extent of, the negligent, reckless or tortuous acts or omissions (including strict liability) of Buyer or Owner or anyone directly or indirectly employed by Buyer or Owner (other than Seller,  or any Subcontractor or Vendor to Seller); and

    2. Seller shall defend, indemnify and hold harmless Buyer from and against all third party claims, damages, losses and expenses (including reasonable attorneys' fees and expenses) that directly or indirectly arise out of or result from, but only to the extent of, the negligent, reckless or tortuous acts or omissions (including strict liability) of Seller or anyone directly or indirectly employed by Seller.

    3. Nothing contained in this Contract shall obligate either Party to indemnify or hold harmless the other Party or any of their respective employees, agents, partners, affiliates, shareholders, directors, officers, and assigns from any claims to the extent of the negligent, reckless, or otherwise tortious conduct of the Party seeking indemnification, except as and to the extent specifically provided herein.

    4. An indemnitee under this Article or any other indemnification provision set forth in this Contract (except as specifically provided herein) shall, within ten (10) business days after the receipt of notice of the commencement of any legal action or of any claims against such indemnitee in respect of which indemnification will be sought, notify the indemnitor with a Notice thereof.  The failure to give such Notice shall not relieve the indemnitor from any liability that it may have to such idemnitee otherwise than under the indemnity agreements contained in this Article.  In case any such claim or legal action shall be made or brought against an idemnitee and such idemnitee shall notify the indemnitor thereof, the indemnitor may, or if so requested by such idemnitee shall, assume the defense thereof, without any reservation of rights.  After notice from the indemnitor to such indemnitee of an election to assume the defense thereof and approval (which shall not unreasonably be withheld) by the indemnitee of counsel selected by the indemnitor, the indemnitor will not be liable to such indemnitee under this Article for any legal fees or expenses subsequently incurred by such indemnitee in connection with the defense thereof.  No indemnitee shall without the indemnitor's approval settle any indemnified claim over which the indemnitor has not been afforded the opportunity to assure the defense.  The indemnitor shall control the settlement of all claims over which it has assumed the defense; provided, however, that the indemnitor shall not conclude any settlement that requires any action or forbearance from action by the indemnitee or any of its affiliates without the prior approval of the idemnitee.  The indemnitee shall provide reasonable assistance to the indemnitor , at the indemnitor's expense, in connection with such legal action or claim.  If the indemnitor assumes the defense of any such legal action or claim, any indemnitee shall have the right to employ separate counsel in such claim or legal action and participate therein, and the reasonable fees and expenses of such counsel shall be at the expense of such indemnitee.  Notwithstanding anything to the contrary in this Article, the indemnitee shall have the right, at its expense, to retain counsel to monitor and consult with indemnitor's counsel in connection with any such legal action or claim.

  8. MISCELLANEOUS

    1. GOVERNING LAW.  This Contact shall be governed and construed in accordance with laws of the State of California, with the exception of its laws relating to conflicts of laws.

    2. Wherever this contract requires that either party give its consent, such consent shall not be unreasonably delayed or denied.

    3. Wherever the Buyer, or anyone acting on behalf of the Buyer, acts or omits to act in such a way that causes Seller to incur additional costs or delay, Seller is entitled to request additional time or reimbursement in accordance with the Article of this Agreement relating to change orders.

    4. Except as otherwise provided herein, the physical engineering documents, drawings, operation and maintenance manuals, and specifications prepared by Seller as part of the Work shall become the property of the Buyer with the restricted right to their use only for the purpose of operating, maintaining and servicing the Work.  Seller shall retain its rights in its standard drawing details, designs, specifications, databases, computer software and any other proprietary and intellectual property incorporated in the engineering documents, drawings, operation and maintenance manuals, and specifications.  All rights to intellectual property utilized, or modified in the performance of the Work shall remain the property of the Seller.

All documents, including, but not limited to, drawings, specifications, operation and maintenance manuals, and computer software prepared by Seller pursuant to this Contract may only be used to operate, maintain and service the Work.  They are not intended or represented to be suitable for reuse by Buyer, or others on extensions of the modifications of the goods sold or the Project into which the goods are installed, and Buyer has no right or license to do so.

  1. Waiver. Any failure by either party to enforce this Agreement as to any breach hereof by the other party shall not be deemed to be a waiver of the rights of such party as to such breach or any subsequent breach.

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