FLEXGEN EQUIPMENT SALES TERMS AND CONDITIONS OF CONTRACT
SERVICES PERFORMANCE OBLIGATIONS
Contractor shall perform the services set forth in the Purchase Order (“Services”) in accordance with applicable laws and any other terms and conditions set forth in the Purchase Order, including the schedule (if any) set forth therein. Contractor shall, as promptly as reasonably practicable and at its cost and expense, re-perform any Services that fail to conform to applicable law and any such other terms and conditions.
SERVICES FEE AND PAYMENTS
The services fee set forth in the Purchase Order (“Services Fee”) shall be exclusive of all taxes and Owner shall pay all such taxes; provided, that Owner shall not be responsible for taxes measured by or imposed on Contractor’s net income or net profit. Owner shall pay Contractor the Services Fee in accordance with the payment schedule set forth in the Purchase Order. Within thirty (30) days following the date of each invoice (except in the case of the first invoice, which shall be seven (7) days following such date), Owner shall pay to Contractor the amount of the invoice in accordance with the payment instructions set forth therein. Interest will accrue on overdue payments commencing from the relevant due date until the receipt of payment in full by Contractor at an interest rate equal to the lesser of (a) the applicable prime rate as published in the Wall Street Journal plus four percent (4%) per annum or (b) the maximum permissible interest rate under applicable law.son, firm or company so named in the Contract, to whom the Equipment is to be supplied and shall include legal personal representatives, successors and permitted assigns.
TITLE; INTELLECTUAL PROPERTY
To the extent Owner’s payments of amounts of the Services Fee to Contractor are made in accordance herewith, Contractor warrants good title, free and clear of all liens that may be imposed by Contractor, to all Services. Owner acknowledges and agrees that (a) Contractor retains all right, title, and interest in any intellectual property rights, in and to the Services, and (b) any idea, invention, work of authorship, drawing, design, formula, algorithm, utility, tool, pattern, compilation, program, device, method, technique, process, improvement, development or discovery (collectively, “Invention”), whether or not patentable, copyrightable or entitled to legal protection as a trade secret or otherwise, that Contractor may conceive, make, develop, create, reduce to practice or work on, in whole or in part, in the course of performing the Services, shall be owned and retained by Contractor.
Contractor shall create, incur, assume or suffer to be created by it any lien or other encumbrance upon the Services.
Contractor warrants to Owner that all Services shall: (a) be free from defects in workmanship and (b) conform to all applicable requirements of the Purchase Order (“Warranty”). The warranty period shall (i) commence on the date on which Contractor has completed its performance of the Services, and (ii) expire on the date that is twelve (12) months thereafter (“Warranty Period”); providedthat, the Warranty Period for any Services required to be re-performed following discovery of a defect or other non-compliance with the Warranty during the Warranty Period shall continue until the end of the later of (A) the expiration of the Warranty Period and (B) one (1) year from the date of completion of such re-performance. Notwithstanding any other provision of this Section, the Warranty Period (as the same may be extended pursuant to foregoing clause) shall end no later than the date that is twenty-four (24) months after Contractor’s completion of its performance of the Services. If, during the Warranty Period, Owner provides written notice to Contractor that any Services fail to satisfy the Warranty, then Contractor shall re-perform such non‑conforming or defective Services in accordance with the Warranty and all other, applicable requirements of the Purchase Order. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CONTRACTOR MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED.
To the fullest extent permitted by applicable law, each party (“Indemnitor”) shall defend, indemnify and hold harmless the other party and all of its affiliates, along with its and their respective officers, directors, agents, employees, successors, and assigns (“Indemnitees”), from and against all loss, damage, expense and liability incurred by any Indemnitees for claims by third parties for injury to or death of persons and from damage to or loss of property to the extent resulting from (a) the negligence, fraud or willful misconduct of Indemnitor or (b) any violation by Indemnitor of any applicable laws in connection with Indemnitor’s performance of its obligations under the Purchase Order.
The Purchase Order may be terminated by the non-defaulting party immediately, by giving written notice to the defaulting party to that effect, in the event of the occurrence of any of the following (“Event of Default”) with respect to such defaulting party:
(a) such party fails to make payment of any amount when due under the Purchase Order as required to be made by such party to the other, which failure continues for thirty (30) days after the other party has sent written notice thereof to such party;
(b) such party fails to cure a material breach in the performance of its obligations under the Purchase Order not otherwise specifically addressed in this Section within thirty (30) days after receipt of written notice of the particulars of such breach from the other party; or
(c) if such party files a petition in bankruptcy, files a petition seeking reorganization, arrangement, composition or similar relief, or makes an assignment for the benefit of creditors, or if any involuntary petition or proceeding under bankruptcy or insolvency laws is instituted against such party and not stayed, enjoined or discharged.
In the event of an Event of Default by Owner, Contractor shall have the right to delay or suspend its performance of the Services under the Purchase Order and/or to terminate the Purchase Order. Upon any termination of the Purchase Order by Contractor, Contractor shall be entitled to, as its sole and exclusive remedy, a sum equal to (i) the portion of the Services Fee attributable to the Services that have been performed by Contractor for which Contractor has not been compensate at the time of termination; plus (ii) any reasonable, actual and documented termination or cancellation costs paid by Contractor as a result of such termination (“Termination Payment”).
In the event of an Event of Default by Contractor, Owner shall have the right to terminate the Purchase Order. Upon any termination of the Purchase Order by Owner pursuant to this paragraph, Owner may complete Contractor’s performance of the Purchase Order by such means as Owner reasonably selects or may engage any others to complete the performance of the Purchase Order. Contractor shall, not later than thirty (30) days following Contractor’s receipt of an invoice therefor from Owner and as Owner’s sole and exclusive remedy, reimburse Owner for an amount equal to (A) any reasonable costs incurred by Owner in completing Contractor’s remaining obligations under the Purchase Order in excess of the balance of the Services Fee that otherwise would have been payable to Contractor but for such Event of Default by Contractor less (B) any undisputed amounts due and owing from Owner to Contractor under the Purchase Order; provided, however, in no event shall such amount, in the aggregate, exceed one hundred percent (100%) of the balance of the Services Fee.
LIMITATIONS ON LIABILITY
NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY (INCLUDING ITS AFFILIATES) BE RESPONSIBLE TO THE OTHER PARTY (INCLUDING ITS AFFILIATES) UNDER ANY PROVISION OF THE PURCHASE ORDER FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH, ARISING FROM, OR AS A RESULT OF PERFORMING OR FAILURE TO PERFORM ANY OBLIGATION UNDER THE PURCHASE ORDER, WHETHER SUCH LIABILITY ARISES IN CONTRACT (INCLUDING BREACH, INDEMNITY OR WARRANTY), TORT (INCLUDING FAULT, NEGLIGENCE OR STRICT LIABILITY), WARRANTY, PRODUCT LIABILITY OR OTHERWISE, IN EACH CASE WHETHER OR NOT FORESEEN OR FORESEEABLE BY EITHER PARTY; PROVIDEDTHAT NOTHING IN THIS SECTION SHALL BE CONSTRUED TO (I) PRECLUDE RECOVERY OF AMOUNTS OWED TO A THIRD PARTY THAT MAY BE RECOVERABLE FROM CONTRACTOR UNDER ITS INDEMNITY HEREUNDER, OR (II) LIMIT LIABILITY ARISING FROM THE FRAUD OR WILLFUL MISCONDUCT OF A PARTY.
NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER TO THE CONTRARY, IN NO EVENT SHALL CONTRACTOR’S (OR ITS AFFILIATES’) AGGREGATE LIABILITY FOR ANY AND ALL DAMAGES ARISING OUT OF OR RELATING TO THE PURCHASE ORDER FOR ANY CAUSE OR REASON WHATSOEVER, INCLUDING ANY CLAIMS MADE BY THE OTHER PARTY, WHETHER FOR DELAY, BREACH OF CONTRACT, MAKE GOOD COSTS, CLAIMS IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY OR OTHERWISE, EXCEED AN AGGREGATE AMOUNT EQUAL TO ONE HUNDRED PERCENT (100%) OF THE PURCHASE PRICE; PROVIDED, HOWEVER THAT THESE LIMITATIONS AND EXCLUSIONS OF LIABILITY DO NOT APPLY TO (I) CONTRACTOR’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS HEREUNDER, OR (II) FOR AMOUNTS ARISING OUT OF THE FRAUD OR WILLFUL MISCONDUCT OF SUCH PARTY.
The rights, warranties and remedies expressed herein shall be sole and exclusive and in lieu of all others available at law or in equity.
FORCE MAJEURE EVENT
“Force Majeure Event” shall mean any event or circumstance that arises after the date of the Purchase Order, is beyond the reasonable control of Contractor, is unavoidable or could not be prevented or overcome by the reasonable efforts and due diligence of Contractor and has an impact which will adversely affect Contractor’s ability to perform its obligations in accordance with the Purchase Order. Contractor shall within seven (7) days after it becomes aware of the impact of the Force Majeure Event, give Owner written notice describing the details of the cause and nature of the Force Majeure Event, the anticipated length of delay due to the Force Majeure Event and any effect on Contractor’s performance of its obligations under the Purchase Order. Contractor shall give notice to Owner of: (i) the cessation of the relevant Force Majeure Event; and (ii) the cessation of the effects of such Force Majeure Event on the performance by it of its obligations under the Purchase Order as soon as practicable after becoming aware thereof. Contractor shall not be responsible or liable for any loss, damage, detention or delay, nor be deemed in breach of the Purchase Order for any non-performance because of any failure or delay in complying with its obligations under or pursuant to the Purchase Order to the extent that such failure has been caused by a Force Majeure Event or its effects. If Contractor is prevented from performing its obligations under the Purchase Order for either (A) a continuous period of ninety (90) days or (B) an aggregate of one hundred eighty (180) days as a result of the occurrence of a Force Majeure Event, then Contractor may terminate the Purchase Order without any liability to it.
The Purchase Order shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to its conflicts of laws provisions, except for section 5-1401 of the New York General Obligations Law.
Neither party may assign, sell, transfer or otherwise dispose of its rights or obligations under the Purchase Order without the prior written consent of the other party.
“Confidential Information” shall mean: (a) the contents of the Purchase Order; (b) any information relating to the negotiations or performance of the Purchase Order; and (c) any information provided pursuant to the Purchase Order relating to the Services, Contractor, Owner or their affiliates. Each party agrees to hold all Confidential Information in confidence and not disclose it other than to its affiliates, contractors, subcontractors, vendors, consultants, advisors, employees, directors, officers, agents, advisors or representatives (“Personnel”) as necessary to perform its obligations under the Purchase Order. Each party agrees that only Personnel who need to have access to Confidential Information in order to perform their duties will be authorized to receive the same, and then only to the extent needed and provided such Personnel have been advised of the obligations and restrictions set forth in this Section. Each party shall be responsible for any breach of this Section by its Personnel. Notwithstanding the foregoing, information shall not be deemed to be Confidential Information where it: (i) is or becomes public information or otherwise generally available to the public through no act of or failure to act by the receiving party; (ii) was, prior to the date of the Purchase Order, lawfully already in the possession of the receiving party and was not received by such party from the other party; (iii) is rightfully received by the receiving party from a third party who is not prohibited from disclosing it to such party and is not breaching any agreement by disclosing it to such party; (iv) independently developed by the receiving party without benefit of Confidential Information received from the other party; or (v) is the property of the party receiving such information. If a party is required by applicable law or any governmental authority to disclose any Confidential Information, such party shall promptly notify the other party of such requirement prior to disclosure so that the other party may seek an appropriate protective order. Each party acknowledges that the other party would not have an adequate remedy at law for money damages if the covenants contained in this Section were breached and that any such breach would cause the other party irreparable harm. Accordingly, each party also agrees that in the event of any breach or threatened breach of this Section by such party or its Personnel, the other party, in addition to any other remedies it may have at law or in equity, shall be entitled, without the requirement of posting a bond or other security, to equitable relief. At the request of the disclosing party, the receiving party shall promptly return to the disclosing party all of its Confidential Information, and shall promptly purge all electronic copies of such Confidential Information; provided that the other Party shall be entitled to keep one (1) copy of such Confidential Information for its legal records.