FLEXGEN EQUIPMENT SALES TERMS AND CONDITIONS OF CONTRACT
EQUIPMENT SUPPLY OBLIGATIONS.
Supplier shall supply and deliver to the delivery point set forth in the Purchase Order (“Delivery Point”) the equipment as set forth therein (“Equipment”) in accordance with applicable laws and prudent industry practices. Supplier shall be the importer of record for any Equipment imported from outside the United States. Supplier shall ensure that the Equipment complies with the technical specifications set forth in the Purchase Order. Supplier shall, as promptly as reasonably practicable and its cost and expense: (a) repair any damaged Equipment free of charge to like new condition; (b) replace such damaged Equipment; and/or (c) deliver additional Equipment to remedy any shortage, as applicable. Title and risk of loss to any such damaged Equipment shall transfer to Supplier at the time of pick-up of such damaged Equipment by Supplier.
PURCHASE PRICE AND PAYMENTS.
The purchase price set forth in the Purchase Order (“Purchase Price”) shall be based on delivery of the Equipment Delivered Duty Paid (DDP) (INCOTERMS 2020) to the Delivery Point. The Purchase Price shall be inclusive of all taxes other than any sales and use taxes, transfer taxes, and other similar taxes imposed at the Delivery Point. Buyer shall pay Supplier the Purchase Price in accordance with the payment schedule set forth in the Purchase Order. Within thirty (30) days following the date on which Buyer approves each invoice (except in the case of the first invoice, which shall be seven (7) days following such date), Buyer shall pay to Supplier the amount of the invoice in accordance with the payment instructions set forth therein. Buyer may withhold any portion of any payment due and payable to Supplier under the Purchase Order to the extent reasonably necessary to protect any of Buyer’s rights under the Purchase Order with respect to any failure by Supplier to satisfy any of its obligations under the Purchase Order. Buyer may also at any time set-off any and all undisputed sums due from Supplier against undisputed sums due to Supplier.
Time is of the essence with respect to Supplier’s performance of its obligations under the Purchase Order. Supplier shall deliver the Equipment
by the deadline set forth in the Purchase Order in accordance with the delivery protocol set forth therein. If Supplier fails to deliver any of the Equipment by such deadline, then Supplier shall pay Buyer the liquidated damages in the amount set forth in the Purchase Order for each day following such deadline until and including the actual delivery date
of such Equipment. All liquidated damages shall be payable within thirty (30) days after receipt of an invoice provided to Supplier by Buyer.
TITLE AND RISK OF LOSS.
Title to Equipment shall pass from Supplier to Buyer upon the delivery of such Equipment to the Delivery Point. Supplier warrants good title to all Equipment furnished under the Purchase Order, and Supplier warrants that title and ownership thereto shall pass to and vest in free and clear of any and all liens. Care, custody and control of the Equipment, and risk of loss to the Equipment, shall transfer from Supplier to Buyer upon delivery by Supplier at the Delivery Point.
Supplier shall not permit or suffer to exist any lien or other encumbrance upon the Equipment or other property of Buyer.
Supplier warrants to Buyer that all Equipment shall: (a) be free from defects in engineering, design, material and workmanship; (b) be new and unused; (c) be of good quality and good condition; and (d) conform to all other, applicable requirements of the Purchase Order (“Warranty”). The warranty period shall (i) commence on the date which is two (2) months after the final delivery of the Equipment in accordance with the Purchase Order, and (ii) expire on the date that is one (1) year thereafter (“Warranty Period”); provided that, the Warranty Period for any Equipment required to be repaired or replaced 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 repair or replacement. 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 two (2) years after the date which is two (2) months after the final delivery of the Equipment in accordance with the Purchase Order. If, during the Warranty Period, Buyer provides written notice to Supplier that any Equipment fails to satisfy the Warranty, then Supplier shall repair or replace, at its option, such non conforming or defective Equipment in accordance with the Warranty and all other, applicable requirements of the Purchase Order. If (x) Supplier fails to promptly undertake and prosecute actions to complete the Warranty work or (y) any Equipment fails to satisfy the Warranty during the Warranty Period and any such failure occurs under circumstances where there is an immediate need for repairs due to the endangerment of human health or property, Buyer shall have the right to perform the Warranty work and Supplier shall bear the costs thereof (including an allowance for overhead and related costs). EXCEPT AS EXPRESSLY SET FORTH HEREIN, SUPPLIER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, WHETHER EXPRESS OR IMPLIED.
To the fullest extent permitted by applicable law, Supplier shall defend, indemnify and hold harmless Buyer and all of its affiliates, along with its and their respective officers, directors, agents, employees, successors, and assigns (“Buyer Indemnitees”), from and against all loss, damage, expense and liability incurred by any Buyer 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 Supplier or (b) any violation by Supplier of any applicable laws in connection with Supplier’s performance of its obligations under the Purchase Order. Supplier shall defend, indemnify and hold harmless Buyer Indemnitees from any claim of any third party that any Equipment furnished under the Purchase Order infringes any patent, copyright, trademark, or other intellectual property rights. Supplier shall, at its own expense and option, (i) settle a final, non-appealable judgment of a court of competent jurisdiction or defend the claim or any suit or proceeding and pay all damages and costs awarded in it against Buyer, (ii) procure for Buyer the right to continue using the infringing Equipment or (iii) modify or replace the infringing Equipment so that it becomes non-infringing and, in the case of clauses (ii) or (iii) above, to the extent commercially reasonable, in a manner and period of time that minimizes interference with Buyer’s use of the Equipment, provided that no such modification or replacement (A) shall reduce the useful life of the Equipment, (B) have an adverse effect on its performance, or (C) result in increased costs of operation and maintenance. If in connection with any such claim the continued use of any Equipment for the purpose intended is forbidden by a final judgment of any court of competent jurisdiction, Supplier shall at its option take one or more of the actions under preceding clauses (ii) or (iii).
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 Buyer, Supplier shall have the right to delay, suspend or cancel the relevant shipment and any pending or future shipments under the Purchase Order and/or to terminate the Purchase Order. Upon any termination of the Purchase Order by Supplier, Supplier shall be entitled to, as its sole and exclusive remedy, a sum equal to (i) the portion of the Purchase Price attributable to Equipment in transport to the Point of Destination at the time of termination; plus (ii) any unpaid amounts owing to Supplier for Equipment under the Purchase Order already delivered to the Point of Destination; plus (iii) any reasonable, actual and documented termination or cancellation costs paid by Supplier to Sub-Suppliers as a result of such termination (“Termination Payment”); provided, in no event will the amount of the Termination Payment exceed the Purchase Price.
In the event of an Event of Default by Supplier, Buyer shall have the right to terminate the Purchase Order. Upon any termination of the Purchase Order by Buyer pursuant to this paragraph, Buyer may complete Supplier’s performance of the Purchase Order by such means as Buyer reasonably selects or may engage any others to complete the performance of the Purchase Order. Supplier shall, not later than thirty (30) days following Supplier’s receipt of an invoice therefor from Buyer, be responsible for reimbursing Buyer for an amount equal to (A) any reasonable costs incurred by Buyer in completing Supplier’s remaining obligations under the Purchase Order in excess of the balance of the Purchase Price that otherwise would have been payable to Supplier but for such Event of Default by Supplier less (B) any undisputed amounts due and owing from Buyer to Supplier 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 Purchase Price.
Buyer may terminate the Purchase Order with or without cause at any time by giving a written notice of termination to Supplier specifying the effective date of the termination, which date shall not be less than fourteen (14) days from the date of such written notice. Immediately upon the receipt of such written notice, Supplier shall take commercially reasonable steps to wind down its affairs with respect to its performance of its obligations under the Purchase Order and mitigate all costs, losses and damages to the extent commercially and reasonably practicable, including taking reasonable efforts to resell any Equipment that has not been delivered at the time of termination. If Supplier resells such Equipment within ninety (90) days after the date of such termination for a price greater than or equal to the applicable portion of the Purchase Price, then Buyer shall not owe any further compensation to Supplier. If Supplier does not resell such Equipment within such ninety (90) day period, then Buyer shall pay Supplier, as Supplier’s sole and exclusive remedy, the Termination Payment. If Supplier resells such Equipment within such ninety (90) day period but the resale price is less than the applicable portion of the Purchase Price, then Buyer shall pay Supplier, as Supplier’s sole and exclusive remedy, an amount equal to the lesser of: (x) the difference between such resale price and such portion of the Purchase Price; and (y) the Termination Payment.
LIMITATIONS AND EXCLUSIONS 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; PROVIDED THAT NOTHING IN THIS SECTION SHALL BE CONSTRUED TO (I) PRECLUDE RECOVERY, WHERE APPLICABLE, OF ANY LIQUIDATED DAMAGES, (II) PRECLUDE RECOVERY OF AMOUNTS OWED TO A THIRD PARTY THAT MAY BE RECOVERABLE FROM SUPPLIER UNDER ITS INDEMNITY HEREUNDER, OR (III) LIMIT LIABILITY ARISING FROM THE GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF A PARTY.
NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY’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 (INCLUDING DELAY LIQUIDATED DAMAGES), PRODUCT WARRANTIES, BREACH OF CONTRACT, MAKE GOOD COSTS, CLAIMS IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), PRODUCTS 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) SUPPLIER’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY CLAIMS HEREUNDER, OR (II) FOR AMOUNTS ARISING OUT OF THE GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT OF SUCH PARTY.
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 the party claiming the Force Majeure Event, is unavoidable or could not be prevented or overcome by the reasonable efforts and due diligence of the party claiming the Force Majeure Event and has an impact which will actually, demonstrably, adversely and materially affect such party’s ability to perform its obligations in accordance with the Purchase Order, but does not include: (a) strikes, work stoppages (or deteriorations), slowdowns or other labor actions originated by employees of the party claiming the Force Majeure Event or not otherwise regional or national in nature; (b) any labor or manpower shortages; (c) unavailability, late delivery, failure, breakage or malfunction of equipment or materials; (d) economic hardship; (e) common, customary or foreseeable delays in clearing customs or port closures; or (f) increased cost of electricity, steel, materials, equipment, labor, or transportation, including the Equipment. The party claiming a Force Majeure Event shall within seven (7) days after it becomes aware of the impact of the Force Majeure Event, give the other party 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 the party’s performance of its obligations under the Purchase Order. Within fifteen (15) days after initial notification, such party shall provide reasonably detailed proof of the occurrence and duration of such Force Majeure Event to the other Party and shall thereafter provide the other party with periodic supplemental updates to reflect any change in information given to the other party as often as requested by the other party. The party claiming the Force Majeure Event shall give notice to the other party 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. Neither party shall be responsible or liable for any loss, damage, detention or delay, nor be deemed in breach of the Purchase Order (except with respect to payment obligations) for any non-performance because of any failure or delay in complying with its obligations under or pursuant to the Purchase Order (except with respect to payment obligations) to the extent that such failure has been caused by a Force Majeure Event or its effects. If Buyer or Supplier 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 Buyer may terminate the Purchase Order without any liability to Supplier.
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. The parties exclude the application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) and the U.S. Uniform Commercial Code.
Neither party may assign, sell, transfer or otherwise dispose of its rights or obligations under the Purchase Order (including title to the Equipment) or delegate its duties under the Purchase Order, in each case without the prior written consent of the other party. Notwithstanding anything to the contrary in the foregoing, Buyer shall have the right to assign the Purchase Order without the consent of Supplier (a) as collateral security to its financing parties and (b) to any affiliate of Buyer.
“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 Equipment, Supplier, Buyer or their affiliates. Each party agrees to hold all Confidential Information in confidence and not disclose it other than to its affiliates, contractors (or potential contractors), subcontractors, vendors, consultants, advisors, employees, directors, officers, agents, advisors or representatives (“Personnel”) as necessary to perform its obligations under the Purchase Order or to any purchaser of the Equipment or a direct or indirect interest in Buyer or to Buyer’s financing parties. 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.
- PROHIBITED PAYMENTS.
Supplier shall not, and shall cause its Personnel not to, take any action in connection with the Purchase Order or any of the transactions or activities contemplated thereby or otherwise for the benefit of or on behalf of itself, Buyer, or their respective affiliates that is, or could be deemed to be, a violation of (a) applicable laws; (b) the laws of the country of residence of Supplier and the laws of the country of formation of Buyer (or its principal place of business); or (c) the U.S. Foreign Corrupt Practices Act (15 U.S.C. Section 78dd-1 et seq.), as amended. Without limiting the above, Supplier shall not offer, pay, promise to pay or authorize the payment of, or permit any Personnel to offer, pay, promise to pay or authorize the payment of, any money or thing of value, such as providing gifts or entertainment, to any officer, employee or representative of any governmental authority for the purpose of (i) influencing any act or decision of any governmental authority, or (ii) inducing such governmental authority to do or omit to do any act in violation of the lawful duty of such official, or (iii) inducing such governmental authority to use its influence to affect or influence any act or decision of such government or instrumentality in order, in the case of (i), (ii) or (iii), to assist Buyer, its Personnel, or any of their respective affiliates in obtaining or retaining business, or directing business to such person, or assisting such person in obtaining any advantage. Supplier warrants and represents that prior to the execution of the Purchase Order it has not taken any action, which act or failure to act would have violated this Section. Notwithstanding anything to the contrary in the Purchase Order, in the event of a breach by Supplier of its representations, warranties, and covenants in this Section, Buyer may, by written notice to Buyer, terminate the Purchase Order with immediate effect.