FLEXGEN EQUIPMENT SALES TERMS AND CONDITIONS OF CONTRACT
These General Terms and Conditions of Contract ("Conditions") shall apply to the provision of the Purchase Contract for the Works and/or for the development, manufacture and supply of Equipment to the PURCHASER, save as varied by express written agreement signed by an authorized employee of each Party. No purchase order or other documentation issued by the PURCHASER shall take precedence over or vary any of these Conditions, any such purchase orders shall be subject to the agreed conditions of this Contract, without exception.
2.1 "Affiliates" means any entity controlled by, controlling, or under common control with a Party, where "control" in any of the foregoing forms means ownership, either direct or indirect, of more than 50% of the equity interest entitled to vote for the election of directors or equivalent governing body. An entity shall be considered an Affiliate only so long as such entity continues to meet the foregoing definition.
2.2 "Contract" means the Purchase Contract and all Exhibits in order of precedence.
2.3 "Contract Price" means the sum stated in the Contract as the price payable to COMPANY for the execution of the Works and for the sale of the Equipment to the PURCHASER, including any other approved costs that may be incurred by and which are payable by the PURCHASER including, without limitation, costs for accrued interest, approved Contract changes, freight and COMPANY personnel travel and expenses for training, mobilization or operation support.
2.4 "Effective Date" means date on which the Contract was executed by both Parties.
2.5 "Equipment" means all the respective parts, assemblies, materials and documentation to be provided by COMPANY (FlexGen Power Systems, Inc.) under the Contract.
2.6 "FAT" means Factory Acceptance Test of the Equipment.
2.7 "Party" shall mean the PURCHASER or SELLER.
2.8 "Parties" shall mean both PURCHASER and SELLER.
2.9 "PURCHASER" means the person, 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.
2.10 "PURCHASER'S Representative" means the person designated as such in the Contract.
2.11 "(COMPANY) Representative" means the person designated as such in the Contract.
2.12 "Variation" means any alteration of the Works pursuant to an approved Contract Change Notice by both Parties, whether by way of addition, modification or omission.
2.13 "Warranty Period" means the period for which the Equipment is warranted, as set forth in the Contract.
2.14 "Works" means the work carried out by COMPANY in designing, manufacturing and delivering the Equipment and, when applicable, supervising the installation and commissioning all as set out in the Contract.
3.1 The Contract shall become effective and COMPANY shall be obliged to commence the Works only when all of the following conditions have been fulfilled:
(a) the Contract has been executed by both Parties;
(b) COMPANY has received the milestone payments due to it upon execution of the Contract, as applicable and as stated in the payment milestones;
(c) the PURCHASER is not in default with COMPANY on any other Contract or Agreement.
3.2 In the event that all the above mentioned conditions (a) and (b) shall not have been fulfilled within thirty (30) days from the date of fulfillment of the first thereof to be fulfilled (or such other period as may be agreed in writing between the Parties) COMPANY may by notice in writing to the PURCHASER cancel the Contract and (except as may be stated to the contrary in any instructions to proceed with Works issued by the PURCHASER and accepted by COMPANY). COMPANY shall not be under any liability to the PURCHASER due to the fact that the Contract shall not have become effective.
3.3 In the event PURCHASER is in default to COMPANY on any other contract or agreement (condition (c)), COMPANY shall not be under any liability to the PURCHASER due to the fact that the Contract shall not have become effective.
4.1 PURCHASER'S Representative shall be readily available to enable COMPANY to discharge its obligations under the Contract, and shall have the authority to commit PURCHASER in all matters under the Contact. Subject to any delegation of such authority, the precise definition of which shall be notified to COMPANY in writing, PURCHASER'S Representative shall be responsible for issuing to and receiving from COMPANY all notices, information, instructions and decisions. Notwithstanding the foregoing, PURCHASER'S Representative shall have no authority to amend the Contract.
4.2 The PURCHASER shall provide COMPANY with any necessary information that may be required to permit COMPANY to proceed without interruption with the Works. In the event that any aspect of the Works is delayed or the extent of the Works is increased by reason of delay in the provision by the PURCHASER of the necessary information, including without limitation; proof of insurance as set forth in the Contract, client Equipment layout and EQUIPMENT configuration that may affect Equipment designs or configuration, or by reason of any change in such information then COMPANY shall by way of Contract Change Notice require the PURCHASER to extend the delivery date (or the relevant date for completion of the Works) by an agreed period and the PURCHASER shall so extend the delivery date (or the relevant date for completion of the Works) and all the agreed costs and expenses incurred by COMPANY as a result of such delay of or increase to the Works shall be paid to COMPANY by the PURCHASER. Any such change to the Contract Price and/or delivery will be through a Contract Variation approved by both Parties.
4.3 COMPANY shall provide the PURCHASER with any necessary information that may be required to permit to the PURCHASER to proceed without interruption with the follow up of the Works. In the event that any aspect of the Works is delayed or the extent of the Works is increased by reason of delay in the provision by COMPANY of the necessary information, including without limitation; proof of insurance as set forth in the Contract, EQUIPMENT data and EQUIPMENT configuration that may affect Equipment configuration, or by reason of any change in such information then PURCHASER may by way of written notice request COMPANY to provide all necessary missing information within 15 working days to minimize impact on PURCHASER'S Equipment integration without affecting delivery date, provided the requested information is readily available for COMPANY to provide the PURCHASER.
4.4 Unless otherwise specified, all drawings and particulars of weights and dimensions submitted to the PURCHASER shall be construed as being provided within tolerances appropriate for application (for example the weight indicated on the EQUIPMENT. A drawing may vary due to the final configuration of the installed equipment).
4.5 COMPANY shall submit to the PURCHASER during the progress of the Work within such reasonable times as the PURCHASER may require such drawings of the general arrangement and details of the Equipment as may be specified in the Contract.
5.1 Each Party agrees that any technical, business, or other information (hereinafter "Confidential Information") that is disclosed to the other Party or its subcontractors in connection with any work hereunder, either orally or in writing, is to be treated as confidential and proprietary. Each Party agrees that Confidential Information will be maintained in strict confidence and not used or disclosed to third parties other than in the performance of the work. The requirement to maintain information in strict confidence, however, shall not apply to Confidential Information that: (i) is or becomes generally available to the public through no wrongful act of the disclosing Party; (ii) was in the possession of the disclosing Party prior to the time it was acquired hereunder and was not acquired, directly or indirectly, from the owning Party or its affiliates or from others under an obligation of confidentiality; (iii) is independently made available as a matter of right to by a third party without obligations of confidentiality, provided that such third party did not acquire such information directly or indirectly from a Party to this contract or their affiliates; or (iv) is required by law to be divulged, provided that the disclosing Party must notify the other Party prior to any disclosure, and must assist in minimizing the extent of disclosure.
5.2 Each Party must not disclose Confidential Information to any third party or use it or any part thereof except in the performance of the work. Each Party agrees to limit access to Confidential Information to its employees, agents, representatives, and subcontractors who reasonably require such access for purposes of this Contract. Each Party agrees to use its best efforts in requiring that its employees, agents, representatives, and subcontractors maintain Confidential Information in strict confidence. Each Party must not make nor permit the making of any copies, abstracts, derivatives, or summaries of any Confidential Information, except in the performance of the work. Upon completion of work and upon request, each Party must return all Confidential Information (including, but not limited to, all copies, abstracts, derivatives, and summaries).
6.1 The Equipment will be submitted to Factory Acceptance Testing witnessed and approved by the PURCHASER before dispatch.
7.1 The conditions and obligations of both Parties in relation to the Equipment delivery terms, title transfer and risk of loss are set forth in the Contract.
7.2 Where no indication is given in the Contract of the delivery terms, the Equipment shall be deemed to be sold "ex-works" from places of manufacture.
7.3 If PURCHASER defaults under this Contract then COMPANY may exercise all rights against such Equipment as permitted by law including, without limitation, right of repossession to the Equipment, until the full purchase price has been paid.
7.4 If COMPANY is unable, by reason of instructions or lack of instructions from the PURCHASER to deliver or make available for collection all or any part of the Equipment on the date specified in the Contract, then COMPANY shall be entitled to arrange storage either at its own premises or elsewhere on the PURCHASER'S behalf and all costs and expenses incurred by COMPANY including (but without limitation) the cost of packing and storage, insurance, demurrage, additional carriage and any re-testing and necessary refurbishing shall be paid by the PURCHASER. In any case delivery under the Contract shall be deemed to have been completed upon delivery of such Equipment into storage and the PURCHASER shall make any payment due to COMPANY on delivery as though delivery has been made and shall pay the balance of the Contract Price (if any) within one hundred and twenty (120) days from the date of delivery into storage.
8.1 COMPANY will, correct by repair or by the supply of a replacement, defects which under proper use, care and maintenance appear in the Equipment within the Warranty Period provided the defects arise from faulty design, materials and/or workmanship by COMPANY, and providing PURCHASER substantially meets COMPANY'S Return Material Authorization (RMA) procedure ("COMPANY'S RMA Procedure"), as set forth in the Contract. COMPANY shall not be liable under the Warranty Period to correct any defects caused or contributed to by design, materials or workmanship furnished by the PURCHASER. Notwithstanding the foregoing, to the extent that any of the foregoing defects are due to vendor warranties pertaining to subassemblies which are integrated with the Equipment without significant modification, correction will be in accordance with such vendor warranties, which shall apply to PURCHASER provided PURCHASER meets all terms and conditions thereof. If and to the extent that correction of a defect involves the provision of replacement Equipment, the PURCHASER shall be liable for any and all costs of retrieving or re-installing Equipment or any portion thereof. Other than as set out above, any and all costs of defect correction shall be met by PURCHASER. THE FOREGOING IS COMPANY'S SOLE AND EXCLUSIVE OBLIGATION, AND PURCHASER'S SOLE AND EXCLUSIVE REMEDY, FOR BREACH OF WARRANTY BY COMPANY WITH RESPECT TO THE EQUIPMENT.
8.2 COMPANY'S RMA Procedure requires that:
(a) Any Equipment which PURCHASER believes should be repaired under warranty will be returned to COMPANY for repair at COMPANY's cost, unless otherwise agreed to in writing by the Parties.
(b) PURCHASER will report nonconformance of the Equipment to its specifications to COMPANY within fourteen (14) days of discovery thereof.
(c) PURCHASER shall provide the Equipment with the supporting information with respect to such nonconformance to enable COMPANY to verify, diagnose and correct the nonconformance which shall be completed in shortest time practical (best effort).
(d) Equipment shall not be returned to COMPANY until PURCHASER meets all product return requirements specified in COMPANY'S RMA Procedure. COMPANY will be responsible for the shipping costs of Equipment properly returned to COMPANY and COMPANY will be responsible of any shipping costs for replacement Equipment to PURCHASER. Notwithstanding the foregoing, if nonconformance of Equipment is deemed an emergency by PURCHASER and an immediate replacement is required, the nonconforming unit of Equipment must be returned to COMPANY within twenty (20) days of discovery of the nonconformance or PURCHASER will be charged for shipping, unless otherwise agreed to in writing.
(e) Any Equipment not returned in accordance with Clause 8.1 and this Clause 8.2 or which are not eligible for warranty pursuant to Clause 8.3 ("Limitation"), will be returned to PURCHASER freight collect.
8.3 LIMITATION. The remedy set forth in Clause 8.1 is available only if: (i) PURCHASER shall within the Warranty Period notify COMPANY of the nonconforming Equipment (in accordance with COMPANY'S RMA Procedure, including Clause 8.2), and (ii) the Equipment has been operated and maintained only by qualified personnel with an appropriate level of training for the Equipment, and (iii) the reported nonconformity is valid and was not caused by misuse, neglect, improper installation, testing or handling, or any other cause beyond the scope of normal usage, or by accident or intentional damage or operation, or use of the Equipment outside its specified operating ranges.
8.4 DISCLAIMER OF WARRANTIES. TO THE EXTENT PERMITTED BY LAW, AND EXCEPT AS EXPRESSLY SET FORTH IN THE CONTRACT, NEITHER COMPANY NOR ITS LICENSORS OR SUPPLIERS MAKE OR GIVE ANY OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS OR OTHER TERMS, WHETHER EXPRESS OR IMPLIED, ARISING BY STATUTE, COMMON LAW OR OTHERWISE (INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, REPRESENTATIONS, CONDITIONS OR OTHER TERMS AS TO SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE), AND ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS OR OTHER TERMS ARE EXPRESSLY DISCLAIMED.
8.5 The warranty of this Clause 8 is not offered and shall not be effective in the event any sums are due under the Contract to COMPANY and are not fully paid by PURCHASER in accordance with the Contract. NOTWITHSTANDING THE TERMS OF THIS CLAUSE OR ANY OTHER PROVISION OF THE CONTRACT, IN NO EVENT SHALL COMPANY'S LIABILITY UNDER THE WARRANTY OBLIGATION AS STATED HEREIN EXCEED ONE HUNDRED PERCENT (100%) OF THE CONTRACT PRICE FOR THE PARTICULAR UNIT OF EQUIPMENT AS TO WHICH WARRANTY IS APPLICABLE. FOR AVOIDANCE OF DOUBT, IF THE WARRANTY IS BEING INVOKED AS TO ONLY ONE EQUIPMENT SYSTEM, THEN THE CONTRACT PRICE AS USED IN THIS CLAUSE SHALL BE THE PRICE FOR THAT PARTICULAR EQUIPMENT SYSTEM ONLY.
9.1 Should COMPANY incur extra cost owing to Variation or suspension of the Works by the PURCHASER'S instructions or lack of instructions or to interruptions, delays, overtime, unusual hours, mistakes or work for which COMPANY is not solely responsible, or to any specified site facilities and working conditions not being maintained adequately by the PURCHASER then the Contract Price will be adjusted by such amounts as reasonable in all the circumstances by way of an approved Contract Change Notice.
TERMS OF PAYMENT
10.1 Payment of the Contract Price shall be made by the PURCHASER in accordance with the payment terms set forth in the Contract.
10.2 Any other undisputed sums payable by the PURCHASER to COMPANY under the Contract shall be paid in accordance with the payment terms set forth in the Contract.
10.3 If payment is not made within the Contract payment terms, COMPANY shall be entitled to receive interest on the amount unpaid from the day on which payment was due until the outstanding amount is paid. The interest shall be at the compound rate set forth in the Contract. COMPANY shall be entitled to interest without formal notice and without prejudice to any other right or remedy.
10.4 If payment is not made within the Contract payment terms, COMPANY may postpone the commencement of or stop work on the Equipment and enforce payment of any overdue invoice, the net loss of time caused thereby being a permissible delay under the Contract. If payment is not received COMPANY may proceed with Contract termination as set forth in Clause 24.
10.5 Payments shall not be withheld on account of minor defects or omissions in the Equipment which do not affect its use.
10.6 If the PURCHASER disputes any of the payments invoiced, the PURCHASER shall notify COMPANY of the disputed item within five (5) days of receiving the invoice and provide the supporting information for the dispute. COMPANY shall have five (5) days to respond to the PURCHASER and shall either issue a credit for the disputed invoice amount or provide the PURCHASER the information to support the invoiced payment. The undisputed portion of the invoice shall be paid within the agreed payment terms.
STATUTORY AND OTHER REGULATIONS
11.1 If the cost to COMPANY of performing its obligations under the Contract shall be increased or reduced by reason of the making or amendment after the Effective Date of any law or of any order, regulation or by-law having the force of law, in the United States or elsewhere, that shall affect the performance of COMPANY'S obligations under the Contract the amount of such increase or reduction shall be added to or deducted from the Contract Price as the case may be.
12.1 The PURCHASER may, prior to the Works having been completed or delivered under Clause 7 (Delivery) request a Variation to the Works by issuing a Contract Change Notice to COMPANY, provided such notice is received by COMPANY not less than ten (10) days prior to the proposed FAT date.
12.2 COMPANY shall within ten (10) working days after having received any such Contract Change Notice, notify the PURCHASER if in COMPANY'S opinion the Variation will involve an addition to the Contract Price and/or an extension to the Contract Works. COMPANY will provide a new FAT completion date and price change, if any, to complete the Contract Change Notice. Notwithstanding the foregoing, COMPANY may reject any Contract Change Notice if COMPANY cannot carry out the requested Variation.
12.3 No such Variation shall become effective until any changes to the Contract Price and/or the FAT completion date have been agreed by the Parties and confirmed by an approved Contract Change Notice issued by either Party and approved by both Parties.
12.4 Nothing in this Clause 12 shall prevent COMPANY from making requests to the PURCHASER for Variations to the Works.
DELAY IN DELIVERY; EXTENSION OF TIME
13.1 If COMPANY fails to deliver the Equipment within the time fixed therefor under the Contract (or any extension thereof provided in the Contract or by way of Contract Change Notice) the PURCHASER shall be entitled to deduct liquidated damages from the Contract Price as set forth in the Contract.
13.2 COMPANY may claim an extension of the time for delivery and/or completion of the Works if COMPANY is delayed in delivering the Equipment and/or completing the Works by any of the following causes, and COMPANY is entitled to be reimbursed for additional costs caused by such delay, except as defined under (b) and (f) below:
(a) extra or additional work by reason of any approved Contract Change Notice;
(b) extreme adverse weather conditions (declared state of emergency);
(c) PURCHASER'S instructions, otherwise than by reason of COMPANY'S default;
(d) the failure of the PURCHASER to fulfill any of the PURCHASER'S obligations under the Contract but only to the extent directly responsible for the delay in question;
(e) any suspension of the Works under Clause 22 (Suspension); or
(f) force majeure as defined herein.
13.3 COMPANY shall give to the PURCHASER notice of its intention to make a claim for an extension of time within fourteen (14) days of the circumstances for such a claim becoming known to COMPANY. The notice shall be followed as soon as possible by the claim with full supporting details.
13.4 The PURCHASER may, after due consultation with COMPANY, or at COMPANY'S request, grant COMPANY, either prospectively or retrospectively, such extension of time for delivery and/or completion as may be justified and is reasonable in the circumstances and, in any event, such claim will not unreasonably be denied.
13.5 COMPANY shall be entitled to claim an extension of time if delay on the part of a COMPANY subcontractor is due to a cause mentioned in Sub-Clause 13.2 and such delay prevents COMPANY from meeting the time for delivery and/or completion. If COMPANY is granted such extension to the delivery of the Equipment, no cost, unless otherwise agreed, shall be accepted by the PURCHASER for such change in delivery.
LIMITATION OF COMPANY’S LIABILITY
14.1 COMPANY'S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR IN RELATION TO THE CONTRACT, WHETHER BY WAY OF INDEMNITY, IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE OF ANY TYPE OR CATEGORY) OR BREACH OF STATUTORY DUTY SHALL NOT EXCEED THE LESSER OF 100% OF THE CONTRACT PRICE(S) FOR THE UNIT(S) OF EQUIPMENT TO WHICH THE LIABILITY APPLIES (FOR AVOIDANCE OF DOUBT, IF THE LIABILITY APPLIES TO ONLY ONE EQUIPMENT SYSTEM, THEN THE 'CONTRACT PRICE' AS USED IN THIS CLAUSE SHALL BE THE PRICE FOR THAT PARTICULAR EQUIPMENT ONLY).
14.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY EXPRESSED OR IMPLIED ELSEWHERE IN THE CONTRACT, UNDER NO CIRCUMSTANCES WHATSOEVER SHALL COMPANY BE LIABLE FOR COSTS OR CHARGES IN CONNECTION WITH ANCILLARY MATERIALS, EQUIPMENT, TOOLS, WAGES (OTHER THAN THE WAGES OF COMPANY'S EMPLOYEES), DISMANTLING OF OTHER EQUIPMENT TO PROVIDE ACCESS TO THE EQUIPMENT, BOARD AND LODGING, TRANSPORT TO AND FROM ANY CLIENT LOCATION, HEAVY LIFT OPERATIONS.
15.1 EXCEPT FOR THE OBLIGATION TO PAY LIQUIDATED DAMAGES, NOTWITHSTANDING ANY OTHER STATEMENT IN THIS CONTRACT, IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY IN CONTRACT, TORT, STRICT LIABILITY, EQUITY, OR OTHERWISE, EITHER DIRECTLY OR UNDER AN INDEMNITY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES ARISING OUT OF OR RELATED TO THIS CONTRACT. THE LOSS OR DAMAGES EXCLUDED BY THIS PROVISION IS SPECIFICALLY FOR ANY LOSS OF PROFIT, BUT ALSO INCLUDES BUT IS NOT LIMITED TO; LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS, LOSS OF DATA, LOSS OF USE, LOSS OF GOODWILL, LOST PRODUCTION, DOWN TIME, LOST USE, ENVIRONMENTAL POLUTION DAMAGE OR CLEANUP, OR LIKE ITEMS HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS CONTRACT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
16.1 Unless otherwise expressly set forth in the Contract both Parties shall retain all rights and ownership interest to their respective background Intellectual Property.
16.2 For the purpose of this clause Intellectual Property Rights means, but not limited to, all inventions and discoveries patentable or not, trade secrets, trademarks, service marks, patents, patent applications, trade mark applications and registrations, copyrightable materials, logos, domain names, know-how, copyrights, design rights and database rights, models, formulae, software, source codes, designs and other confidential information and trade names (whether registered or unregistered) furnished, conceived, reduced to practice, fixed in a tangible medium of expression, or otherwise and all applications and registrations for and extensions and renewals of such rights or any of them, anywhere in the world, of a Party.
16.3 COMPANY warrants that (i) all Intellectual Property (as hereinafter defined) forming part of or otherwise comprised in the Equipment is either owned by COMPANY or the subject of a valid license from any third party which owns such Intellectual Property in favor of COMPANY, and (ii) the use of the Equipment (or any part or parts thereof) by PURCHASER will not infringe the intellectual property rights of any third party. In the event that the use of the Equipment (or any part or parts thereof) infringes the intellectual property rights of any third party, COMPANY will defend, indemnify and hold harmless the PURCHASER its parent, Affiliates and subsidiaries, if any, and its and their customers, directors, agents, representatives, employees and insurers and its other contractors and their employees against any claim of infringement of a third party's patents, registered designs, trademarks or copyright caused by the use or sale of the Equipment and against all costs and damages awarded by a court to the third party in respect of such infringement provided always that this indemnity shall not apply to any infringement which is due to COMPANY having followed a design or instructions furnished or given by the PURCHASER or to the use of such Equipment in a manner or for a purpose not specified by or disclosed to COMPANY (for which infringements the PURCHASER shall fully indemnify COMPANY and its Affiliates), or to any infringement which is due to the use of the Equipment in association or combination with any other equipment not supplied by COMPANY; and provided also that this indemnity is conditional on: (i) the PURCHASER giving to COMPANY the prompt notice in writing of any claim being made or action threatened or brought against the PURCHASER; (ii) the PURCHASER making no admission without COMPANY'S prior written consent; (iii) the PURCHASER permitting COMPANY at COMPANY'S own expense to conduct and control any defense and/or litigation that may ensue and all negotiations for a settlement of the claim; and (iv) providing COMPANY with such information, authority and assistance as COMPANY may reasonably require to defend or settle the claim. Subject to the foregoing, PURCHASER may participate in any such claim, litigation or settlement with counsel of its own choosing but at its own expense.
16.4 The PURCHASER on its part represents and warrants that any design or instructions furnished or given by it shall not be such as will cause COMPANY to infringe any third party rights of the same type indemnified for by COMPANY. If and to the extent that a third party makes a claim against COMPANY for the infringement of such intellectual property as a result of COMPANY'S use and possession of the PURCHASER'S designs and instructions, then the PURCHASER shall fully indemnify COMPANY and its affiliates, against all costs, claims, damages, losses and expenses (including legal fees) suffered by COMPANY.
16.5 The Equipment or any other items supplied by COMPANY under this Contract (collectively, "Intellectual Property") shall be and remain the exclusive property of COMPANY or its licensors. COMPANY hereby grants the PURCHASER, a worldwide non-exclusive, irrevocable, non-assignable, non-sublicensable license and right to use the Intellectual Property solely for and the extent necessary for the repair, maintenance, refitting, upgrading and/or operation of the Equipment, but not to for the remanufacture of any Equipment or spare parts, and not for the making of any derivative works as defined under copyright law. Any such Intellectual Property identified as confidential by COMPANY or which, under the circumstances surrounding its disclosure would be understood by a reasonable person to be confidential, is herein referred to as Confidential Information. The PURCHASER will not, and will ensure that its employees, customers, agents, suppliers and contractors do not, use or disclose, publish, or transfer any of the Confidential Information to any person or entity other than as permitted under the Contract and to those of the PURCHASER'S employees, in both cases who need to know such Confidential Information for such repair, maintenance, refitting, upgrading and/or operation of the Equipment, provided that prior to the time that any Confidential Information is shared with any such person, PURCHASER shall have entered into an appropriate written agreement with that person sufficient to enable COMPANY and PURCHASER to enforce all of the provisions of this Agreement against such person. In any event, PURCHASER shall be fully responsible for any breach of the provisions of this Agreement by any of such persons.
17.1 The Parties warrant on behalf of themselves and their Sub-Suppliers and represents to the other Party that in carrying out their business activities they comply with the generally accepted standards and principles of business ethics and conduct, and in particular, that (i) they abide by the principles of the OECD Convention on Combating Bribery in International Business Transactions, as well as the relevant applicable law resulting from the implementation of such convention including UK Bribery Act 2010 and the US Foreign Corrupt Practices Act; (ii) in private business dealings or in dealings with the public or government sector they do not directly or indirectly give, offer or receive or agree to offer, give or receive any bribe or commit or attempt to commit any other corrupt act anywhere in the world; and (iii) they have not received, agreed or attempted to receive the proceeds of or profits from any bribery or agreed to assist any person to retain the benefits of any bribe.
17.2 The Parties represents that they will respond to any compliance and ethics questionnaire that the other Party may request to complete from time to time.
17.3 Neither Party shall knowingly involve itself in any business in connection with, or use information arising from, the Contract, in any manner which conflicts with the interests of the other Party.
17.4 The Parties further agree that in the conduct of business pursuant to or in any way related to this Contract, they will do nothing that would cause the other Party to be in violation of any provision of the relevant Code(s). In the event that it should come to the attention of a Party that the other Party has engaged, is engaging in or is about to engage in any activity which may result in violation of this Clause, the Party will take such corrective action as the other Party may request.
17.5 The Parties further declare, represent and agree that they or any Subcontractor or Sub-Supplier will not utilize child labor or forced labor in violation of the OECD Guidelines for Multinational Enterprises, including ILO Conventions on child labor and forced labor. (OECD is the Organization for Economic Cooperation and Development and ILO is the International Labor Organization (UN)).
17.6 Any breach by the Party, its officers, employees, subcontractors and agents of any provision contained in this Clause is a material breach of the Contract and the Parties remedies shall, in addition to the right of immediate termination, as set forth under Clause 24, include any other remedies available under applicable law.
17.7 The offending Party must defend and indemnify the other Party from and against all losses and expenses arising out of its violation of this Clause 17.
NO ADVERSE INTERFERENCE
18.1 Each Party agrees not to hire, solicit, or accept solicitation (either directly or indirectly) from, the employees of the other Party directly involved herein, during a period of one (1) year after completion, expiry or termination of the Contract, except as the Parties may agree on a case-by-case basis. The foregoing does not affect the rights of either Party's employees to apply for a position within the other Party's organization. COMPANY personnel trained to a level to support field operations shall be available to the customer on an as requested basis.
LEGAL CONSTRUCTION (GOVERNING LAW, FORUM AND DISPUTE RESOLUTION)
19.1 This Contract shall be governed and construed in accordance with the laws of the State of Texas, excluding its choice of law principles, and any and all questions, claims, or disputes relating to or arising out of this Contract, or the breach thereof, whether sounding in contract, tort or otherwise, shall likewise be governed by the laws of the State of Texas, excluding its choice of law principles. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Contract.
19.2 In the event any dispute or difference between COMPANY and the PURCHASER in connection with or arising out of, or relating to the Contract, or breach thereof, cannot be resolved within thirty (30) days by the Parties using their best endeavors through negotiation with each other, in good faith and understanding of each other's mutual interests, then the Parties shall be free to settle the dispute in accordance with the laws of Texas. Any legal suit, action or proceeding arising out of or related to this Contract or the matters contemplated hereunder shall be instituted in the federal courts of the United States or the courts of the State of Texas in each case located in the city of Houston and County of Harris, and each party irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Notwithstanding the foregoing, in actions seeking to enforce any order or any judgment of any such federal or state courts located in Texas, personal jurisdiction shall be nonexclusive.
19.3 Equitable Relief. It is expressly agreed that a breach by either Party of the applicable licenses granted or a breach by a Party of their confidentiality obligations under this Contract may cause irreparable harm to the other Party which harm cannot be adequately compensated in damages. Therefore, in addition to any and all remedies available at law, a Party will be entitled to seek an injunction or other equitable remedies in the event of any threatened or actual breach or infringement of any or all of the above provisions. Further, nothing in this Contract shall prevent a Party from taking action before any applicable statute of limitations expires.
20.1 The term "force majeure" means all causes or events beyond the reasonable control of either Party which arise after the formation of the Contract and which prevents, delays or hinders the performance of one or both Parties' obligations under the Contract and including but not limited to war and other hostilities (whether declared or not); invasion; terrorism; act of foreign enemies; mobilization; requisition or embargo; rebellion or riot or civil commotion; earthquake, flood, fire or other natural disaster, including exceptional adverse weather; bankruptcy or liquidation of subcontractors; ionizing radiations or contamination by radio-activity from any nuclear fuel or from any nuclear waste, or from the combustion of nuclear fuel or radio-active, toxic, explosive or other hazardous properties of any explosive nuclear assembly or nuclear component thereof; pressure waves caused by aircraft or other aerial devices traveling at sonic or supersonic speeds; maritime or aviation disasters; except with respect to taxation, changes to any general or local statute, ordinance, decree, or other law, or any regulation or bylaw of any local or other duly constituted authority or the introduction of any such statute, ordinance, decree, law, regulation or bylaw. For avoidance of doubt, any force majeure event by COMPANY's subcontractors, vendors or suppliers may constitute grounds for delay or a COMPANY force majeure event whichever the case may be.
20.2 If either Party is prevented, delayed or hindered in performing any obligation under the Contract as a result of force majeure, such obligation shall be suspended for so long and to such extent as may be justified by the circumstances.
20.3 If the performance of a Party's obligations under the Contract has been prevented or ceased as a result of force majeure circumstances and is not resumed within one hundred eighty (180) days either Party may by notice given to the other in writing terminate the Contract and the PURCHASER shall pay such proportion of the Contract Price as the work actually done bears to the work for which the Contract Price was fixed.
TAXES, DUTIES AND LEVIES
21.1 The PURCHASER is responsible for and shall indemnify, defend, and hold harmless COMPANY and its Affiliates from all liabilities, claims for taxes, assessments, levies, or charges (1) that any taxing authority may assess or levy against PURCHASER relating to the Contract, Works, and/or Equipment or (2) that are imposed on PURCHASER by any applicable laws, including without limitation the following: constitutional law, civil law, common law, international law, equity, treaties, statutes, decrees, edicts, codes, orders, judgments, rules, ordinances and regulations of any local, municipal, territorial, provincial, federated, national or any other duly constituted governmental authority or agency.
21.2 COMPANY is responsible for and shall indemnify, defend, and hold harmless PURCHASER and its Affiliates from all liabilities, claims for taxes, assessments, levies, or charges (1) that any taxing authority may assess or levy against COMPANY relating to the Contract, Works, and/or Equipment or (2) that are imposed on COMPANY by any applicable laws, including without limitation the following: constitutional law, civil law, common law, international law, equity, treaties, statutes, decrees, edicts, codes, orders, judgments, rules, ordinances and regulations of any local, municipal, territorial, provincial, federated, national or any other duly constituted governmental authority or agency.
22.1 Neither Party shall without the prior written consent of the other (which shall not be withheld or delayed unreasonably) assign or otherwise transfer any benefit under the Contract to any other person except that COMPANY may without such consent assign either absolutely or by way of charge any money which is or may become due to COMPANY under the Contract. COMPANY may subcontract the performance of any of its obligations under the Contract as COMPANY considers expedient upon receiving the prior written consent of the PURCHASER. Further, COMPANY may, at its discretion and with prior written consent of PURCHASER, assign this Contract to any Affiliate of COMPANY. Any attempted assignment in derogation of the foregoing shall be null and void.
23.1 Without prejudice to any other remedy that COMPANY has, COMPANY may on giving not less than seven (7) days' notice suspend progress of the Works in whole or in part when:
(a) any act or omission of the PURCHASER prevents reasonable progress;
(b) the PURCHASER fails to make milestone payment as provided in the Contract; or
(c) the PURCHASER fails to issue any required information or documentation, including, without limitation, proof of insurance, client equipment layout and EQUIPMENT configuration that may affect Equipment designs due under the Contract.
On remedy by the PURCHASER, COMPANY shall continue the progress of the Works. The PURCHASER shall pay all COMPANY'S reasonable and direct costs arising out of suspension and subsequent resumption of the Works. If such suspension continues for a period of ninety (90) days without resumption then COMPANY shall have the right to terminate the Contract for Cause.
23.2 The PURCHASER by way of written notification to COMPANY may suspend with just cause, the performance of all or part of the Works. The PURCHASER shall pay all COMPANY'S reasonable and direct costs arising out of suspension and subsequent resumption of the Works. If such suspension continues for a period of ninety (90) days without resumption then COMPANY shall have the right to terminate the Contract for Cause.
TERMINATION FOR CAUSE
24.1 Either Party shall have the right to terminate the Contract for cause, without prejudice to any other rights or remedies under this Contract, by giving written notice to terminate forthwith the Contract for the following reasons:
(i) Default in compliance with any material warranties, covenants, schedule milestones, or agreements required to be maintained and performed hereunder including, without limitation, the obligation to procure insurance as set forth in this Contract.
(ii) either Party substantially refuses or fails to supply the materials defined in the Contract; or
(iii) either Party substantially fails to maintain the schedule set forth in the Contract; or
(iv) COMPANY fails to deliver the Equipment to the agreed schedule and the PURCHASER has exhausted all provisions provided under Clause 13 (Delay in Delivery) and as set forth in the Contract; or
(v) PURCHASER fails make the milestone payment to the dates and terms provided in the Contract; or
(vi) the liquidation dissolution, reorganization, merger, sale of substantially all of the assets, or change in management, voting control or corporate form of either Party; or
(vii) a receiver, receiver and manager, liquidator, sequestrator trustee, sheriff, judicial officer or other similar officer is appointed for either Party or its property or any part or parts thereof; or
(viii) either Party becomes insolvent or unable to pay its debts as they fall due (whether in the ordinary course of business, by acceleration or otherwise) or makes an assignment for the benefit of its creditors; or
(ix) The assumption of custody or control of the whole or any substantial part of the assets of COMPANY for a period in excess of thirty (30) days by any governmental agency or any court of competent jurisdiction at the instance of any governmental agency; or
(x) The attachment of any lien or privilege on the Equipment or any parts thereof not exclusively due to the acts or omissions of PURCHASER, whether under federal or state law, if such lien is not removed within fifteen (15) business days after written demand by PURCHASER to COMPANY for such removal, unless COMPANY, within such time, provides PURCHASER with a bond by sureties acceptable to the PURCHASER against such lien in an amount equal to the full amount of such lien, including interest and all costs; or
(xi) any proceedings are commenced against either Party under any bankruptcy, dissolution, winding up, insolvency or debtor's relief law and such proceedings are not vacated or set aside within fourteen (14) days from the date of commencement thereof; or
(xii) A suspension of the Contract as set forth in Clause 22 continues for a period of ninety (90) days without any resumption of work.
(xiii) Any violation as set forth under Clause 17 of this Contract.
Notwithstanding the above or anything else in the Contract to the contrary, if there is a bona fide dispute in respect of PURCHASER'S payment obligation, COMPANY has no right to postpone the commencement of, stop work on, or terminate, the Contract.
24.2 COMPANY'S REMEDIES. In the event that prior to delivery, pursuant to Clause 24.1 above, the PURCHASER is in material breach under this Contract, COMPANY may terminate this Contract, provided that COMPANY has provided written notice to PURCHASER of its intention to exercise this remedy and PURCHASER'S breach is not remedied within fourteen (30) days after receipt of such notice.
In the event of such termination pursuant to Clause 24.1 above COMPANY shall:
(i) be paid for all work completed through such termination date.
(ii) be paid the full Contract value for all non-standard Equipment as identified in the Contract which shall include any documented labor costs for non-standard Equipment design, manufacture and testing.
(iii) make available for delivery all Equipment paid for under items (i) and (ii) above unless otherwise agreed in writing.
(iv) may claim compensation for its direct losses in accordance with the jurisdiction of this Contract.
(v) if and to the extent that the PURCHASER has provided any equipment or other items to COMPANY, COMPANY shall return any such items to the PURCHASER unless they have been incorporated into the Equipment.
(vi) shall retain the rights and title to the Equipment or in the event a title transfer has been completed to the PURCHASER, the title to the Equipment shall be re-instated to COMPANY until such time the breach of contract is rectified or the termination remedy above executed.
The rights conferred upon COMPANY under the terms of this Clause shall not be exclusive of any other remedies in law or equity which might be otherwise available to COMPANY upon default of PURCHASER. Failure of COMPANY to exercise any of the rights conferred upon it hereunder with respect to any default of PURCHASER shall not constitute a waiver of any rights of COMPANY with respect to any other event of default by PURCHASER.
24.3 PURCHASER'S REMEDIES. In the event that prior to delivery, pursuant to Clause 24.1 above, and with the exception of delays in performance, COMPANY is in material breach under this Contract, the PURCHASER may terminate this Contract, provided that PURCHASER has provided written notice confirmed by registered mail to COMPANY of its intention to exercise this remedy and COMPANY'S breach is not remedied within twenty-one (30) days after receipt of such notice.
In the event of such termination pursuant to Clause 24.1 the PURCHASER:
(i) agrees to pay COMPANY for all work completed through such termination date.
(ii) agrees to pay the full Contract value for all non-standard Equipment as identified in the Contract which shall include any documented labor costs for non-standard Equipment design, manufacture and testing.
(iii) take delivery all Equipment paid for under items (i) and (ii) above unless otherwise agreed in writing.
(iv) shall be entitled to a prompt refund of all payments made to COMPANY under the Contract with respect to any or all standard Equipment not yet delivered to PURCHASER, and return of any items provided by the PURCHASER to COMPANY that have not been incorporated into the Equipment already delivered; or
(v) may complete the Work as specified in the Contract, COMPANY's maximum liability under this clause shall be limited to an amount not to exceed fifteen percent (15%) of the Contract Price for the terminated Work.
(vi) The rights conferred upon PURCHASER under the terms of this Clause shall not be exclusive of any other remedies in law or equity which might be otherwise available to PURCHASER upon default of COMPANY. Failure of PURCHASER to exercise any of the rights conferred upon it hereunder with respect to any default of COMPANY shall not constitute a waiver of any rights of PURCHASER with respect to any other event of default by COMPANY.
25.1 Where the Contract sets out the specific rights or obligations of either Party and provides an express remedy then such remedy shall be in full satisfaction of the rights or obligations that gave rise to the remedy.
26.1 The waiver or excuse by either Party of the other Party's failure to perform in any given case shall only be valid if given in writing and shall not operate as a waiver for any subsequent breach.
27.1 If any provision of the Contract shall be held to be illegal, invalid or unenforceable for any reason, such provision shall be ineffective to the extent of such illegality, invalidity or unenforceability, without invalidating the remaining provisions of the Contract or affecting the validity or enforceability of such provision.
28.1 This Contract sets out the entire agreement of the Parties in relation to its subject matter and supersedes any prior understanding or agreement between the Parties, whether oral or written. The Parties acknowledge that neither has relied on any statement, representation, warranty or undertaking (whether negligently or innocently made) or any person (whether a Party or not) other than as expressly set out in this Contract.
29.1 The PURCHASER shall indemnify and hold harmless COMPANY and its affiliates against, and COMPANY and its affiliates, shall not be liable for any losses, damages, liabilities or claims arising out of or in connection with (and the PURCHASER shall be responsible for) the control, disposal and/or removal of any liquid or non-liquid, pollutant or waste material of whatsoever nature that is, or has been, discharged, seeped, spilled, blown-out or leaked from any underground reservoir or resulting from any blow-out or crater and from the loss or emission of gas, crude oil, fuel, lubricants or the like from any equipment, facilities or reservoirs including but not limited to any installation, pipelines or equipment of the PURCHASER, or that of others, on or adjacent to the work site and all costs relating to the removal of debris and wrecks, even if such claims, losses or expenses are contributed to or caused by the negligence or fault of COMPANY or its subcontractors/suppliers of any tier.
30.1 COMPANY agrees that no liens, security interests or rights in rem of any kind arising out of the Work, or on account of any claim against COMPANY shall lie or attach against or upon the Equipment or any of said property, material or workmanship, except, however, liens, security interests or rights in rem in favor of a claimant arising solely out of acts or omissions of PURCHASER. COMPANY will make prompt payment of all valid claims by our workmen, subcontractors, suppliers and others furnishing services or materials at our request, to protect the PURCHASER and PURCHASER's property from the attachment of any such valid liens arising out of their work. COMPANY will indemnify and hold PURCHASER harmless from loss sustained by reason of the assertion of such valid lien claims. However, COMPANY reserves the right to file its own lien if payments are not made as required under this Contract.
30.2 If any such lien, security interest or right in rem of any kind is filed or asserted against or attached upon the Equipment or any of said property, material or workmanship, COMPANY shall promptly notify PURCHASER. If such lien, security interest or right in rem does not arise solely out of acts or omissions of PURCHASER, COMPANY shall, not later than fifteen (15) days thereafter, secure the discharge or release of such lien, security interest or right in rem. COMPANY shall defend, indemnify and save harmless PURCHASER Group from all costs, charges and damages by reason of such lien, security interest, right in rem, or claims in any way attributable thereto. However, COMPANY may contest such lien, security interest or right in rem or the claim upon which it is based, if, within the time herein provided COMPANY shall either secure the discharge or release of such lien, security interest or right in rem by court order, or COMPANY shall furnish to PURCHASER or the appropriate court having jurisdiction in such matters, such bond or security therefore as shall be acceptable to PURCHASER and/or the court in question.
31.1 COMPANY shall, at all times while the Works are conducted hereunder, carry insurance of types and in minimum amounts as set forth in the Contract. Within ten (10) days after the Effective Date of this Contract and before performing any work hereunder, whichever comes first, COMPANY will furnish PURCHASER evidence of the required coverage by submitting a certificate of insurance to PURCHASER. Likewise, PURCHASER shall, at all times while the Works are conducted hereunder, carry insurance of types as provided in the Contract. It is understood and agreed that the insurance coverage set forth therein represent minimum requirements, shall not restrict a Party from procuring insurance in excess of said amounts and shall not limit the respective indemnification obligations and other liabilities assumed by a Party hereunder. COMPANY shall furnish PURCHASER thirty (30) days written notice prior to cancellation of any of the insurance policies required hereunder.
31.2 To the extent of COMPANY'S or PURCHASER'S respective indemnification obligations and other liabilities assumed under this Contract, PURCHASER or COMPANY, as the case may be, shall be named as additional assureds, and the insurers' rights of subrogation shall be waived against the other Party, on all policies required to be obtained by COMPANY or PURCHASER pursuant to this Agreement. All deductibles on the required insurance policies are for the sole account of either COMPANY or PURCHASER. Subject to COMPANY'S or PURCHASER'S indemnification obligations or other liabilities assumed under this Contract, all insurance policies required to be obtained by COMPANY or PURCHASER shall be deemed primary, and neither Party, nor its insurer, shall seek contribution from any of the other Party's insurance policies.
32.1 PURCHASER agrees to indemnify, defend and hold harmless COMPANY from and against any and all claims, losses, expenses (including without limitation all costs, demands, suits, judgments, fines, penalties, liabilities and attorney's fees) howsoever arising related to:
(i) causes of action on account of disease or injury (including death) to PURCHASER, its employees, agents, officers, directors or subcontractors, arising out of the performance of this Contract and whether or not occasioned by the sole, concurrent or partial negligence, fault, contractual undertakings or strict liability of COMPANY.
(ii) causes of action resulting from loss or destruction of property of PURCHASER'S employees, agents, officers, directors or subcontractors, arising out of the performance of this Contract and whether or not occasioned by the sole, concurrent or partial negligence, fault, contractual undertakings or strict liability of COMPANY.
(iii) causes of action on account of disease or injury (including death) to third parties and for loss or destruction of property of third parties arising out of the performance of this Contract, but only to the extent that such injury or loss was caused by PURCHASER.
(iv) causes of action on account of any injury to any person, damage to any property, or any pollution or contamination, caused the inadequacy for the PURCHASER'S intended use of the safety features, devices or characteristics of the equipment specified in the Contract, or in the installation, use, repair, maintenance or operation of such Equipment and/or services, except claims solely for repair or replacement of defective parts covered by the Warranty set forth in Clause 8.
32.2 COMPANY agrees to indemnify, defend and hold harmless PURCHASER from and against any and all claims, losses, expenses (including without limitation all costs, demands, suits, judgments, fines, penalties, liabilities and attorney's fees) howsoever arising related to:
(i) causes of action on account of disease or injury (including death) to COMPANY, its employees, agents, officers, directors or subcontractors, arising out of the performance of this Contract and whether or not occasioned by the sole, concurrent or partial negligence, fault, contractual undertakings or strict liability of PURCHASER.
(ii) causes of action resulting from loss or destruction of property of COMPANY'S employees, agents, officers, directors or subcontractors, arising out of the performance of this Contract and whether or not occasioned by the sole, concurrent or partial negligence, fault, contractual undertakings or strict liability of PURCHASER.
(iii) causes of action on account of disease or injury (including death) to third parties and for loss or destruction of property of third parties arising out of the performance of this Contract, but only to the extent that such injury or loss was caused by COMPANY.
PARTIES TO COMPLY WITH LAWS AND REGULATIONS
33.1 COMPANY shall comply with all laws, rules, regulations, and requirements of any applicable regulatory body affecting the construction and operation of the Equipment and shall procure at its own expense such permits from the federal, state and local authorities as may be necessary in connection with beginning or carrying on to completion of the Work. COMPANY shall at all times comply with all federal, state and local laws in any way affecting the Work.
33.2 PURCHASER shall comply with all laws, rules, regulations, and requirements of any applicable regulatory body affecting the operation of the Equipment, and shall procure at its own expense such permits from the federal, state and local authorities as may be necessary in connection with operation of the Equipment. PURCHASER shall at all times comply with all federal, state and local laws in any way affecting the operation of the Equipment.
CHANGE IN LAW
34.1 COMPANY shall keep informed of and comply with; (i) laws and regulations which apply on any site and at the place where the Goods are to be used according to the contract, (ii) requirements and orders of classification societies and public authorities, (iii) current trade union and wage agreements. If laws and regulations as stated above have been adopted, and requirements and orders above have been issued after the signature of the Contract and necessitate variations to the work or its execution, and this affects COMPANY's costs or progress, COMPANY shall be entitled to a change in the contract price or contract schedule reflecting the effect of such decisions or variations. Changes in the way in which public authorities apply such laws or regulations mentioned shall be dealt with in the same way.
OFFICIAL CONTRACT LANGUAGE
35.1 The English version is the official language of the Contract and will govern the interpretation, meaning and intent of this Contract.