Terms and Conditions
Standard Terms and Conditions of Sale for Equipment and Certain Services
1. SELLER (as used herein shall mean “Aclara Technologies LLC”, “Aclara Meters LLC”, “Aclara Meters S.L.”, “Aclara Meters Canada, Inc.”, “Aclara Meters UK LTD.”, “Aclara Japan Godo Kaisha”, “Aclara Meters Chile SpA”, “Aclara India Private Limited”, “Aclara Smart Grid Solutions, LLC”, “Aclara Belgium”, or “Aclara Philippines”) agrees to sell and deliver to Buyer the parts, materials, supplies, and other goods (“Equipment”), Software and Services described on the Quotation to which these Terms and Conditions are attached. The Quotation is expressly conditioned on Buyer’s consent to these Terms and Conditions. Except as may be provided herein, licensing of any Software and the providing of any Maintenance Services shall be performed under separate contract agreements and subject to the terms and conditions of such agreements. Buyer may issue one or more purchase orders in response to the Quotation. Any such issuance shall be deemed an acceptance of these Terms and Conditions; any different or additional terms, whether incorporated in Buyer’s Purchase Order or otherwise, are hereby specifically rejected. Regardless of any language that may appear on Buyer’s Purchase Order including Provisions that may be construed as saying that Sellers’s acceptance and/or fulfillment of the Purchase Order shall serve as an acceptance of the terms of the Purchase Order, no deviation from the terms and conditions contained herein shall be enforceable against Seller unless contained in a separate amendment to these standard Terms and Conditions executed by authorized officers of Seller and Buyer which specifically sets forth the terms contained herein that are to be amended and the specific amendment. The Quotation, these Terms and Conditions, and Buyer’s acceptance constitute the “Agreement”.
As payment for the Equipment and Services, Buyer shall pay the price(s) and within the times as set forth in the Quotation.
Shipment of the Equipment and performance of the Services shall be in accordance with the schedule set forth, or referenced, in the Quotation.
Buyer may request, in writing, changes in the scope of the Quotation. Such changes shall be effected only upon Seller’s concurrence with such request. If any such change causes an increase or decrease in the cost of or the time required for performance hereunder, an equitable adjustment shall be made in the price and/or delivery schedule.
5. FORCE MAJEURE.
Seller shall not be liable for delays in shipment or delivery of any items sold hereunder, or loss or damage thereto, when due to acts of God, acts of Buyer, acts of civil or military authority, governmental restrictions or embargoes, war, riot, fires, strikes, flood, epidemics, quarantine, restrictions, default or delay by supplier, breakdown in manufacturing facilities, machinery or equipment, delays in transportation or difficulties in obtaining necessary materials, labor or manufacturing facilities due to such causes, or any other cause beyond Seller’s reasonable control.
Any Equipment may, at the option of the Buyer, be subject to inspection by Buyer at its cost at Seller’s or Seller’s contract manufacturer’s factory in accordance with Seller’s normal inspection system during normal business hours. All inspections by Buyer shall be performed in such manner as not to delay performance by Seller. Buyer must provide Seller with a minimum of forty-eight (48) hours prior written notice of such inspections.
All material and equipment to be furnished by Seller shall be packed, crated, or otherwise suitably protected to withstand shipment to its destination. Each package, crate, or container shall be marked with the name of the consignee, shipping destination, and purchase order number. Complete packing lists shall be supplied showing contents and identity of each package.
8. TITLE, SHIPPING, AND RISK OF LOSS.
8.1 For shipments that do not involve export, including shipments from one European Union (“EU”) country to another EU country, Seller shall deliver Equipment to Buyer FCA Seller’s facility or warehouse (Incoterms 2010). For export shipments, Seller shall deliver Equipment to Buyer FCA Port of Export (Incoterms 2010). Buyer shall pay all delivery costs and charges or pay Seller’s standard material, handling, and freight charges. Partial deliveries are permitted. Seller may deliver Equipment in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption. If the Equipment delivered does not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within ten (10) days after receipt.
8.2 For shipments that do not involve export, title to Equipment shall pass to Buyer upon delivery in accordance with Section 8.1. For export shipments from a Seller facility or warehouse outside the U.S., title shall pass to Buyer upon delivery in accordance with Section 8.1. For shipments from the U.S. to another country, title shall pass to Buyer immediately after each item departs from the territorial land, seas and overlying airspace of the U.S. The 1982 United Nations Convention of the law of the Sea shall apply to determine the U.S. territorial seas. For all other shipments, title to Equipment shall pass to Buyer the earlier of (i) the port of export immediately after Equipment have been cleared for export or (ii) immediately after each item departs from the territorial land, seas and overlying airspace of the sending country. When Buyer arranges the export or intercommunity shipment, Buyer will provide Seller evidence of exportation or intercommunity shipment acceptable to the relevant tax and custom authorities. Notwithstanding the foregoing, Seller grants only a license, and does not pass title, for any software provided by Seller under this Agreement, and title to any leased equipment remains with Seller.
8.3 Risk of loss shall pass to Buyer upon delivery pursuant to Section 8.1, except that for export shipments from the U.S., risk of loss shall transfer to Buyer upon title passage.
8.4 If any Equipment to be delivered under this Agreement or if any Buyer equipment repaired at Seller’s facilities cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer or its other contractors, Seller may ship the Equipment to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Seller places the Equipment into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller’s invoices; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make the Equipment and repaired equipment available to Buyer for delivery.
8.5 If repair Services are to be performed on Buyer’s equipment at Seller’s facility, Buyer shall be responsible for, and shall retain risk of loss of, such equipment at all times, except that Seller shall be responsible for damage to the equipment while at Seller’s facility to the extent such damage is caused by Seller’s negligence.
Seller shall have the right to substitute an item of Equipment for an item specified in the Quotation provided that such substituted item is, in fact, functionally equivalent to the specified item. In the event of any such substitution, Seller shall give Buyer prompt written notice of its intention to make a substitution which notice shall set forth the reason(s) for such substitution and shall contain a statement that the substituted item is functionally equivalent to the specified item.
Seller warrants its products as follows:
A. For Power-Line System Equipment, please refer to Aclara TWACS standard warranties.
B. For Radio Frequency Equipment, please refer to Aclara STAR standard warranties.
C. For Meters, please refer to Aclara Meter standard warranties.
D. For Software products, please refer to Aclara Software standard warranties.
E. For Services, please refer to Aclara’s Service standard warranties.
F. For Cellular Base Equipment, please refer to Metrum Cellular by Aclara standard warranties.
G. For Grid Monitoring, please refer to Aclara Grid Monitoring Equipment standard warranties.
Buyer shall not assign its right, title, or interest herein, or any part thereof, to any person without the prior written consent of Seller. Such consent shall not be unreasonably withheld.
12. SUCCESSORS AND ASSIGNS.
The Agreement, subject to the provisions hereof, shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto.
13. CONFIDENTIAL AND PROPRIETARY DATA (SELLER).
To the extent Seller furnishes confidential and proprietary information of Seller (hereinafter referred to collectively as, the “Confidential Information) to Buyer under this Agreement, Seller and Buyer agree as follows:
Confidential Information includes, without limitation, (i) non-public information and/or private business information developed, collected or created by Seller or at Seller’s expense or direction or non-public information and/or private business information developed, collected or created by a third party and lawfully in the possession of Seller; (ii) trade secret information including technical or non-technical data, formulae, patterns, compilations, client lists, business plans, programs, devices, methods, techniques, drawings, diagrams or processes, data, databases, software, specifications, in any form or format that (1) are not generally known in the trade or business of Seller, (2) have direct or indirect, tangible or intangible, actual or potential value, (3) are not readily ascertainable from publicly available information, and (4) are the subject of reasonable protection measures taken by Seller.
B. Except as provided in Sections 13D and 13E, Buyer shall not, without the prior written consent of the Seller: (i) disclose or reveal any of Seller’s Confidential Information to any third party; (ii) use any of the Confidential Information other than pursuant to and in accordance with performing this Agreement; (iii) copy, reverse engineer or disassemble any products, technology, software, database, operating system or tangible objects that utilize, embody or contain any portion of the Confidential Information; or (iv) use Seller’s Confidential Information for its own or any third party’s independent economic gain. The period of confidentiality shall be indefinite with respect to Seller’s Confidential Information.
C. Buyer shall apply security measures no less stringent than the measures that Buyer applies to its own like information, but not less than a reasonable degree of care, to prevent the unauthorized disclosure and use of the Confidential Information.
D. Buyer may disclose Confidential Information received from Seller in the following circumstances: (i) disclosure to third parties to the extent that the Confidential Information is required to be disclosed pursuant to a court order or as otherwise required by law, provided that Buyer promptly notifies Seller upon learning of such requirement prior to disclosure and has given Seller a reasonable opportunity to contest or limit the scope of such required disclosure (including but not limited to making an application for a protective order); (ii) disclosure to nominated third parties under written authority from Seller of the Confidential Information; and (iii) disclosure to those within its organization having a need to know.
E. The provisions of this Section 13 shall not apply to information which: (i) at the time of disclosure to Buyer, is generally available to the public or thereafter, without any fault of the Buyer becomes generally available to the public by publication or otherwise, or which becomes general knowledge; or (ii) was lawfully in the possession of the Buyer prior to its disclosure by Seller; or (iii) was independently made known without restriction to the Buyer by a third party having a bona fide right to disclose such information; or (iv) was developed by the Buyer independently from the Confidential Information disclosed to it by Seller.
F. A breach by Buyer of any of the covenants of this Section 13 will cause Seller to suffer loss which will not be adequately compensated for by damages, and in addition to damages in respect of any breach of this Section 13, Seller shall be entitled to seek equitable remedies (including, without limitation, injunctive relief) in case of a breach or to prevent a breach of this Section 13.
14. CONFIDENTIAL AND PROPRIETARY DATA (BUYER).
All information of Buyer that Buyer considers proprietary and furnishes to Seller in connection with Seller’s performance hereunder will be clearly marked as proprietary by Buyer (hereinafter “Buyer Proprietary Data”). Buyer information not so marked shall not be considered to be proprietary to Buyer. Buyer hereby grants to Seller authority to use Buyer Proprietary Data only for the purposes of this Agreement. Seller agrees to keep such Buyer Proprietary Data confidential, to use it only for work necessary to the performance of the Agreement, and not to sell, transfer, disclose, or otherwise make available any of such data to others. Seller may disclose or otherwise make available such Buyer Proprietary Data, with Buyer’s consent, to a third party with whom Seller contracts for work necessary to the performance of this Agreement, provided that said third party agrees to be bound by the limitations on use and disclosure contained herein.
Notwithstanding the foregoing, Buyer Proprietary Data shall not include material which: (i) at the time of disclosure is in the public domain or which, after disclosure, becomes part of the public domain by publication or otherwise; or (ii) is information which Seller can show was in its possession at the time of disclosure and was not acquired directly or indirectly from Buyer; or (iii) is information which was received by Seller from a third entity having legal right to transmit the same. All information pertaining to supply/usage/load profiles shall be recognized by Seller as proprietary information.
15. TERMINATION FOR CAUSE.
Buyer may terminate this Agreement upon delivery to Seller of a written notice of termination. Such notice of termination shall be given to Seller at least ten (10) days prior to the effective date of such termination. Such notice of termination may be given for any one of the following reasons: (1) If Seller shall become insolvent, commit any act of bankruptcy, make a general assignment for the benefit of creditors, or becomes the subject of any proceeding commenced under any statute or law for the relief of debtors; or (2) if a receiver, trustee or liquidator of any property or income of Seller is appointed; or (3) if Seller: (a) defaults in any material manner in the performance of Seller’s obligations under any of the terms, provisions, conditions or covenants contained in this Agreement and (b) further fails within thirty (30) days (or as otherwise mutually agreed) after written notice thereof from Buyer to take reasonable steps to remedy such default. Buyer shall be permitted to pursue any and all rights and remedies available hereunder or at law or in equity without terminating this Agreement for cause. In the event of termination for cause by Buyer, Seller shall be paid only the portion of the compensation related to Equipment delivered, Services performed or Software licensed prior to the effective date of termination. Seller shall also be subject to any claim Buyer may have against Seller under other provisions of this Agreement, or as a matter of law.
B. Seller may also terminate this Agreement upon delivery to Buyer of a written notice of termination. Such notice of termination shall be given to Buyer at least ten (10) days prior to the effective date of such termination. Such notice of termination may be given for any one of the following reasons: (1) If Buyer shall become insolvent, commit any act of bankruptcy, make a general assignment for the benefit of creditors, or becomes the subject of any proceeding commenced under any statute or law for the relief of debtors; or (2) if a receiver, trustee or liquidator of any property or income of Buyer is appointed; or (3) if Buyer: (a) defaults in any material manner in the performance of Buyer’s obligations under any of the terms, provisions, conditions or covenants contained in this Agreement and (b) further fails within thirty (30) days (or as otherwise mutually agreed) after written notice thereof from Seller to take reasonable steps to remedy such default.
Buyer shall also be subject to any claim Seller may have against Buyer under other provisions of this Agreement, or as a matter of law.
16. TERMINATION FOR CONVENIENCE.
Buyer reserves the right, at any time, to terminate this Agreement, or any portion of the Services, for its sole convenience. Any such termination shall be effected by delivery of a written notice of termination to Seller specifying the extent to which the Agreement and related work have been terminated and the date upon which the termination shall be effective. The date of the effective date of termination shall be no earlier than thirty (30) days from the receipt of the notice of termination by Seller. Upon receipt of such notice, Seller shall in good faith and using all commercially reasonable efforts, stop all work hereunder, and shall promptly take steps to cancel existing orders, contracts and subcontracts relating to the Purchase Order.
In the event of such termination, Seller shall be entitled to receive: (1) the price due Seller for the work performed, the Equipment delivered, the Software licensed and the Services performed; (2) the price for Equipment manufactured but not delivered prior to the effective date of termination if Buyer desires to purchase such Equipment; (3) all costs reasonably incurred by Seller prior to the effective date of termination including, but not limited to, labor, materials and overhead not covered under (1) or (2) above; (4) the reasonable cost of termination reasonably incurred by Seller in accordance with Buyer’s termination notice which costs shall include the reasonable cost incurred by Seller in preparing any termination settlement proposal; and (5) Fifteen percent (15%) of the amounts payable under (3) and (4) above.
No costs incurred after the effective date of the notice of termination shall be treated as a reimbursable cost unless it relates to performing the portion of the work not terminated, or taking measures reasonably required to comply with Buyer’s notice of termination in a prudent and business-like manner.
During the performance of this Agreement, the Seller agrees as follows: Seller will comply with all applicable provisions of and, if required, furnish all information and reports required by Section 503 of the Rehabilitation act of 1973, as amended, the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (38 U.S.C. 4212), as amended, the Americans with Disabilities Act (“ADA”) including the ADA Amendments Act, the Federal Executive Order No. 11246, as amended, the regulations at 41 CFR part 60, “Office of the Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor” and of the rules, regulations, and relevant orders of the Secretary of Labor. Such acts, amendments, rules, regulations and orders are incorporated herein by reference.
18. INDEPENDENT CONTRACTOR.
Seller agrees to perform the work in connection with this Agreement as an Independent Contractor and not as a subcontractor, agent or employee of Buyer, its parent, subsidiaries or affiliates, or their respective officers, directors, agents or employees.
For the purpose of this Section 19 only, “Buyer Parties” shall mean Buyer, its directors, officers, agents and employees, contractors and subcontractors (other than Seller), assignees, subsidiaries and affiliates, and each of them; “Seller Parties” shall mean Seller, its directors, officers, agents and employees, contractors and subcontractors at any tier, and the subcontractor’s directors, officers, agents and employees, and each of them; and “Claims” shall mean claims, demands, suits or causes of action. The Parties obligations under this Section 19 shall not be limited to their respective insurance coverage.
19.1 General Indemnity.
A. Seller shall indemnify Buyer Parties for any and all loss or liability, including the costs of settlements, judgments, damages and direct expense including reasonable attorney’s fees, costs and expenses arising from Claims, whether based on statute or regulation or on theories of contract, tort, strict liability, or otherwise, which are brought against one or more Buyer Parties by or on behalf of persons other than Buyer Parties involving injuries or damages to persons or property arising from or in any manner relating to negligent acts or omissions of Seller Parties under this Agreement provided that: (a) Buyer promptly notifies Seller in writing of such Claims; (b) Buyer fully cooperates with Seller in assisting in the defense or settlement of such Claims; and (c) Seller has the sole right to conduct the defense of such Claims or to settle such Claims. Seller shall defend at its own expense, with counsel of its choosing, but reasonably acceptable to Buyer, any suit or action brought against Buyer Parties based upon such Claims. Further, provided that Buyer promptly notifies Seller in writing of any alleged violations described below, Seller shall also indemnify Buyer Parties for any and all loss or liability for fines, fees or penalties for violations of any statutes, regulations, rules, ordinances, codes or standards applicable to the work arising from or relating to acts or omissions of Seller Parties. Seller’s obligations under this Section 19.1.A shall be reduced to the extent of the negligence, gross negligence or willful misconduct of Buyer Parties.
B. Buyer shall indemnify Seller Parties for any and all loss or liability, including the costs of settlements, judgments, damages and direct expense including reasonable attorney’s fees, costs and expenses from Claims, at law or in equity, whether based on statute or regulation or on theories of contract, tort, strict liability, or otherwise, which are brought by or on behalf of persons other than Seller Parties for injuries or damages to persons or property arising from or in any manner relating to acts or omissions of Buyer Parties under this Agreement provided that: (a) Seller promptly notifies Buyer in writing of such Claims; (b) Seller fully cooperates with Buyer in assisting in the defense or settlement of such Claims; and (c) Buyer has the sole right to conduct the defense of such Claims or to settle such Claims. Buyer shall defend at its own expense, with counsel of its choosing, but reasonably acceptable to Seller, any suit or action brought against Seller Parties based upon such Claims. Further, provided that Seller promptly notifies Buyer in writing of any alleged violations described below, Buyer shall also indemnify Seller Parties for any and all loss or liability for fines, fees or penalties for violations of any statutes, regulations, rules, ordinances, codes or standards applicable to the work arising from or relating to acts or omissions of Buyer Parties. Buyer’s obligations under this Section 19.1.B shall be reduced to the extent of the negligence, gross negligence or willful misconduct of Seller Parties.
19.2 Intellectual Property Indemnity.
A. Seller shall defend and indemnify Buyer against any claim by a non-affiliated third party Claims alleging that Equipment or Services furnished under this Agreement infringe a patent in effect in the U.S., an EU member state or the country of the site (provided there is a corresponding patent issued by the U.S. or an EU member state), or any copyright or trademark registered in the country of in which the premises where Equipment is used or Services are performed, not including Seller’s premises from which it performs Services provided that (1) in the case of Software licensed, it is the latest released version of the Software licensed; (2) Buyer promptly, and in any event, within ten (10) days of becoming aware of the Claims, notifies Seller in writing of such Claims; (3) Buyer makes no admission of liability and does not take any position adverse to Seller; (4) Buyer provides Seller with full disclosure and fully cooperates with Seller in assisting in the defense or settlement of such Claims and (5) Seller has the sole right to conduct the defense of such Claims or to settle such Claims.
B. In addition, in the event any such Equipment sold, Software licensed or Services furnished hereunder are held in such suit to be infringing or misappropriating or their use by Buyer is enjoined or limited in any manner, or Seller believes that such holding or enjoining is likely, Seller shall at its sole option and expense: (1) procure for Buyer the right to continue use of such Equipment or Software licensed, or (2) replace or modify the same with an equivalent non-infringing product with functionality substantially similar to the product it is replacing, or (3) failing (1) or (2), take back infringing Equipment, Software licensed, or Services and refund the price received by Seller attributable to the infringing Equipment, Software licensed or Services. Notwithstanding the foregoing, Seller shall not be liable for any Claims based upon (a) the combination or use of the Equipment or Software with any other equipment or software not supplied or authorized by Seller, or (b) Buyer’s possession or use of any altered version of the Equipment or Software unless such alteration has been performed or expressly authorized by Seller, or (c) failure of Buyer to implement any update provided by Seller that would have prevented the Claims, or (d) Equipment or Services made or performed to Buyer’s specifications.
C. Section 19.2 states Seller’s exclusive liability for intellectual property infringement by Equipment, Software and Services.
D. Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Agreement. All new intellectual property conceived or created by Seller in the performance of this Agreement, whether alone or with any contribution from Buyer, shall be owned exclusively by Seller. Buyer agrees to deliver assignment documentation as necessary to achieve that result.
Neither party shall, without the express written consent of the other party, disclose any information or make any news release, advertisement, or public communication regarding this Agreement. Notwithstanding the foregoing, nothing herein shall prevent either party from making such public disclosures as it, in its sole judgment, may deem appropriate to satisfy such party’s (or such party’s parent’s) obligations under any applicable law or requirement of any stock exchange.
In the event that Seller’s obligations hereunder require or contemplate performance of Services by Seller’s employees, or persons under contract to Seller, to be done on Buyer’s property, or property of the Buyer’s customers, Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of the Buyer. Further, in such event, Seller shall maintain:
A. General Liability insurance on a one million dollar ($1,000,000), per occurrence basis; and
B. Statutory workers compensation insurance. Buyer shall be provided for as an additional insured or loss payee as its interest may appear on the policy referred to in Section 21.A above.
22. LIMITATION OF LIABILITY.
Notwithstanding anything contained herein to the contrary, the total aggregate liability of Seller to the Buyer for all liability arising out of or in connection with the performance by Seller of its obligations under this Agreement shall be limited to the aggregate sum of payments made by buyer to Seller under this Agreement. IN NO CASE SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES OR FOR THE LOSS OF BENEFIT, PROFIT, REVENUE, OR DATA, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
23. TAXES AND PAYMENT.
Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Agreement (“Seller Taxes”). Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Seller or its subcontractors) in relation to the Agreement or the performance of or payment for work under the Agreement other than Seller Taxes (“Buyer Taxes”). The price does not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Price without reduction for Buyer Taxes. Buyer shall provide to Seller, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.
24. INVOICING AND PAYMENT.
A. Seller will invoice Buyer for the Equipment, Software and Services as follows based upon the prices set forth in the Agreement: (1) For Equipment. Seller will invoice Buyer for the Equipment purchased hereunder upon Delivery (as defined below); (2) For Software, Seller will invoice Buyer for the Software license purchased hereunder upon contract signing; (3) Unless governed by a separate written agreement executed by the parties, any professional, support and/or maintenance services provided by Seller will be invoiced as such Services are provided.
Payment of all such invoices shall be due and payable thirty (30) days from receipt thereof.
Any amounts not paid when due shall bear interest at the lesser of 1 1/2% per month or the highest amount permitted by law until paid.
“Delivery” means, (i) in the case of Equipment purchased hereunder, the loading of the equipment on the means of transport of the carrier selected by Seller pursuant to Section 8 above; (ii) in the case of Software provided hereunder, the remote installation of the Software by Seller on the Buyer-provided designated Equipment, or if applicable, upon the Delivery of the designated Equipment provided by Seller on which the Software is installed; and (iii) in the case of Services provided hereunder, the periodic performance of such Services as described herein.
In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the remaining portions of this Agreement shall continue to be binding and enforceable.
26. GOVERNING LAW AND DISPUTE RESOLUTION.
26.1 This Agreement shall be governed by and construed in accordance with the laws of (i) the State of New York if Buyer’s place of business is in the U.S.; or (ii) England if the Buyer’s place of business is outside the U.S., in either case without giving effect to any choice of law rules that would cause the application of laws of any other jurisdiction (the “Governing Law”). If the Agreement includes the sale of Equipment and the Buyer is outside the Seller’s country, the United Nations Convention on Contracts for the International Sale of Goods shall apply.
26.2 All disputes arising in connection with this Agreement, including any question regarding its existence or validity shall be resolved in accordance with this Section 26. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management, to be held within twenty (20) business days after the giving of notice. If the dispute is not resolved within thirty (30) business days after the giving of notice, or such later date as may be mutually agreed, either party may commence arbitration or court proceedings, depending upon the location of the Buyer, in accordance with the following: (a) if the Buyer’s pertinent place of business is in the U.S., legal action shall be commenced in federal court with jurisdiction applicable to, or state court located in, either St. Louis County, Missouri or the location of Buyer’s principal place of business; or (b) if the Buyer’s pertinent place of business is outside the U.S., the dispute shall be submitted to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce (“ICC”). The number of arbitrators shall be one, selected in accordance with the ICC rules, unless the amount in dispute exceeds the equivalent of U.S. $5,000,000, in which event it shall be three. When three arbitrators are involved, each party shall appoint one arbitrator, and those two shall appoint the third within thirty (30) days, who shall be the Chairman. The seat, or legal place, of arbitration, shall be London, England. The arbitration shall be conducted in English. In reaching their decision, the arbitrators shall give full force and effect to the intent of the parties as expressed in the Agreement, and if a solution is not found in the Agreement, shall apply the governing law of the Agreement. The decision of the arbitrator(s) shall be final and binding upon both parties, and neither party shall seek recourse to a law court or other authority to appeal for revisions of the decision.
26.3 Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Agreement, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth in Sections 13 and 14 and/or the nuclear use restrictions set forth in Section 29.1, or to seek interim or conservatory measures. Monetary damages shall only be available in accordance with Section 26.2.
Any notices required under this Agreement shall be in writing, in the English language, and shall for all purposes be deemed to be fully given and received if sent by registered or certified mail, postage prepaid, to the respective parties at the addresses set forth on face hereof. Such addresses are subject to change by the respective parties upon written notice as herein provided.
Notwithstanding the expiration or termination of this Agreement, the following Sections shall survive according to their terms: 9, Warranty; 12, Proprietary Data (Seller); 13, Proprietary Data (Buyer); 26, Governing Law and Dispute Resolution; 27, Notices.
29. GENERAL CLAUSES.
29.1 Equipment and Services sold by Seller are not intended for use in connection with any nuclear facility or activity, and Buyer warrants that it shall not use or permit others to use Equipment or Services for such purposes, without the advance written consent of Seller. If, in breach of this, any such use occurs, Seller (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, and, in addition to any other rights of Seller, Buyer shall indemnify and hold Seller (and its parent, affiliates, suppliers and subcontractors) harmless against all such liability. Consent of Seller to any such use, if any, will be conditioned upon additional terms and conditions that Seller determines to be acceptable for protection against nuclear liability.
29.2 Buyer shall notify Seller immediately upon any change in ownership of more than fifty percent (50%) of Buyer’s voting rights or of any controlling interest in Buyer. If Buyer fails to do so or Seller objects to the change, Seller may (A) terminate the Agreement, (B) require Buyer to provide adequate assurance of performance (including but not limited to payment), and/or (C) put in place special controls regarding Seller’s Confidential Information.
30. COMPLIANCE WITH LAWS, CODES AND STANDARDS
30.1 Seller shall comply with laws applicable to the manufacture of Equipment and its performance of Services. Buyer shall comply with laws applicable to the application, operation, use and disposal of the Equipment and Services.
30.2 Seller’s obligations are conditioned upon Buyer’s compliance with all U.S. and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert or direct products other than in and to the ultimate country of destination declared by Buyer and specified as the country of ultimate destination on Seller’s invoice.
30.3 Notwithstanding any other provision, Buyer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import licenses, environmental impact assessments, and foreign exchange authorizations, required for the lawful performance of Services at the Site or fulfillment of Buyer’s obligations, except that Seller shall obtain any license or registration necessary for Seller to generally conduct business and visas or work permits, if any, necessary for Seller’s personnel. Buyer shall provide reasonable assistance to Seller in obtaining such visas and work permits.
31. US GOVERNMENT CONTRACTS.
31.1 This Section 31 applies only if the Agreement is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government.
31.2 Buyer agrees that all Equipment and Services provided by Seller meet the definition of “commercial-off-the-shelf” (“COTS”) or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101. To the extent the Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Agreement, the country of origin of the Equipment is unknown unless otherwise specifically stated by Seller in this Agreement. Buyer agrees any Services offered by Seller are exempt from the Service Contract Act of 1965 (FAR 52.222-41). Buyer represents and agrees that this Agreement is not funded in whole or in part by American Recovery Reinvestment Act funds unless otherwise specifically stated in the Agreement. The version of any applicable FAR clause listed in this Section 31 shall be the one in effect on the effective date of this Agreement.
31.3 If Buyer is an agency of the U.S. Government, then as permitted by FAR 12.302, Buyer agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with these Terms and Conditions. Buyer further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Price.
31.4 If Buyer is procuring the Equipment or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Buyer agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Price.
32. Software License Agreement.
The purchase of any Software shall be governed in accordance with: (i) the license terms accompanying the Software file at the time it is downloaded or installed; or (ii) if no license terms accompany the Software file, a separate Software License Agreement that has been executed by Seller and Buyer and that is in effect for the product(s) at the time of the purchase.
33. TERMS OF AGREEMENT: ORDER OF PRECEDENCE.
The parties intend for these express standard Terms and Conditions contained in this Agreement (including any Schedules and Exhibits thereto) and in any Purchase Order that are consistent with these standard Terms and Conditions to exclusively govern and control each of the parties’ respective rights and obligations regarding the manufacture, purchase and sale of Equipment and Service. Notwithstanding the foregoing, if any terms and conditions contained in a Purchase Order conflict with any terms and conditions contained in this Agreement, the applicable standard term or condition herein will prevail and such contrary or different terms will have no force or effect. Except for such contrary terms, the terms and conditions of all Purchase Orders are incorporated by reference into this Agreement for all applicable purposes hereunder. Without limitation of anything contained in this Section 33, any additional, contrary or different terms contained in any confirmation or any of Seller’s invoices or other communications, and any other attempt to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by Buyer and will not modify this Agreement or be binding on the parties unless such terms have been fully approved in a signed writing by authorized representatives of both parties.
34. ENTIRE AGREEMENT.
The Agreement contains the entire agreement and all representations between the parties relating to the subject matter hereof, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Equipment, Services or Software licensed covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms and Conditions.