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Sales & Service Terms & Conditions

This Web site is run by Yokogawa Corporation of America (hereinafter referred to as "Yokogawa") or its proxy. By using this web site you are agreeing to these Terms of Use. Use the Web site only if you agree with the Terms of Use.

1. Intellectual Property Generally

The Web site contains copyrighted material, trademarks and other proprietary information, including, without limitation, text, software, photos, video, graphics, music and sound, and the contents of the Web site are copyrighted under the United States copyright laws and international treaties ("Information"). You are not granted any rights in or to this Web site or any Information, other than the limited right described in these terms and conditions and any policies and procedures that Yokogawa may adopt and make available on this Web site from time to time, including the Privacy Policy referenced below.

2. Copyright Notice

Yokogawa prohibits the use (including without limitation, duplicating, altering, modifying, posting, transcribing, transmitting, selling, publishing and reciting) of such Information, without prior permission in writing from Yokogawa, except when use of the Web site is for private, non-profit purposes or is authorized by law. For cases of using the Web site beyond the scope of copyright described above, contact us.

3. Registered Trademarks

All the brands or names of Yokogawa's products used in this Web site are either trademarks or registered trademarks of Yokogawa, its parent, or affiliated companies. All other Yokogawa and product names mentioned in this Web site are trade names, trademarks or registered trademarks of their respective companies.

4. Web Site Links

Some parts of this Web site contain links to third-party Web sites (hereinafter referred to as "linked Web sites"), and some third-party Web sites contain links to this Web site. The contents of such linked Web sites are managed by their respective third parties under their responsibility, and should not be construed as being run by Yokogawa. Thus, the contents of each linked Web site should be used in compliance with the terms of use stated therein. Yokogawa shall not be held liable for the contents of any such linked Web site, nor any sort of damage incidental to the use of any such linked Web site.Furthermore, any link to this Web site should not be construed as a suggestion, recommendation or encouragement by Yokogawa of the use of that linked Web site, or as an endorsement of the products, services or Company described therein. Furthermore, any such link should not be construed as meaning that a special relationship, such as a business partnership, exists between Yokogawa and the party running the linked Web site.Linked Web sites are solely responsible for all content that they develop for their Web sites.

5. Representative and Supplier Portals

Certain areas of the Web site are password protected ("Portal Areas"). You agree not to enter or attempt to enter such areas unless authorized by Yokogawa. These Portal Areas may have additional terms and conditions governing their use and you agree to be bound by such terms and conditions when you use the Portal Areas. In the event of a conflict, the terms and conditions on the Portal Areas will supercede these terms with respect to Information in the Portal Areas.

6. Access Rights

Yokogawa grants you a limited license to access and make personal use of the Web site in order to obtain information about, and/or to purchase Yokogawa's products or services. Yokogawa also grants you a license to use any Yokogawa products or services which you purchase. This license does not include any resale or commercial use of this Web site or its contents; any collection and use of any product listings, descriptions, or prices; any derivative use of this Web site or its contents; any downloading or copying of account information for the benefit of any third party; or any use of data mining, robots, or similar data gathering and extraction tools. This Web site or any portion of this Web site may not be reproduced, duplicated, copied, sold, resold, visited, modified or otherwise exploited for any commercial purpose without express written consent of Yokogawa. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of Yokogawa without our express written consent. You may not use any meta tags or any other "hidden text" utilizing Yokogawa's name or trademarks without our express written consent. Any unauthorized use of the Web site terminates the permission and license granted by Yokogawa. You will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Web site. You will not take any action that imposes an unreasonable or disproportionately large load on Yokogawa's infrastructure.

7. Your Obligations

You agree (i) to comply with all applicable laws and regulations regarding your use of this Web site and the Information, (ii) not to retransmit, publicly display, sell or use the Information provided other than solely for your internal business purposes, (iii) not to alter or remove any of the Information or any consent or other proprietary notice or legend on any of the Information, (iv) not to post or transmit through the Web site any material that violates or infringes in any way upon the rights of others, which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane or otherwise objectionable, which encourages conduct that would constitute a criminal offense, gives rise to civil liability or otherwise violate any law, (v) not to post or transmit through the Web site any material which contains advertising or any solicitation with respect to products or services without Yokogawa's express prior approval, and (vi) not to use the Web site to advertise or perform any commercial solicitation. Any conduct by you that in Yokogawa's discretion restricts or inhibits any other user from using or enjoying the Web site will not be permitted. You agree not to use this Web site unless you are over age 13.

8. Disclaimer, Limit on Liability, Indemnity

USE OF THIS WEB SITE OR ANY OF THE INFORMATION IS AT YOUR OWN RISK. THIS WEB SITE AND THE INFORMATION ARE PROVIDED "AS-IS" AND "AS-AVAILABLE." YOKOGAWA HEREBY DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT TO THE WEB SITE AND THE INFORMATION, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SATISFACTION, FITNESS FOR PARTICULAR PURPOSE, COMPLETENESS, ACCURACY, RELIABILITY, QUALITY, TIMELINESS, UNINTERRUPTED USE, TITLE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT MAY VARY BY JURISDICTION.

YOU HAVE THE SOLE RESPONSIBILITY FOR VERIFYING THE COMPLETENESS, ACCURACY, RELIABILITY, QUALITY AND TIMELINESS OF ALL INFORMATION AND SERVICES MADE AVAILABLE ON THIS WEB SITE. YOKOGAWA MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT THE INFORMATION, SERVICES OR MATERIALS MADE AVAILABLE THROUGH LINKED WEB SITES. YOKOGAWA MAKES NO REPRESENTATION OR WARRANTY THAT USING THIS WEB SITE OR THE INFORMATION WILL BE UNINTERRUPTED OR ERROR FREE. YOKOGAWA IS NOT RESPONSIBLE FOR THE CONTENT OF ANY WEB SITES LINKED TO THIS WEB SITE. LINKING TO OTHER WEB SITES FROM THIS WEB SITE IS AT YOUR OWN RISK.

YOU HEREBY IRREVOCABLY RELEASE YOKOGAWA FROM ANY AND ALL LIABILITY FOR ANY DAMAGE, LOSS, LIABILITY OR EXPENSE THAT YOU MAY SUFFER OR INCUR AS A RESULT OF OR ARISING FROM YOUR USE OF THIS WEB SITE OR THE INFORMATION. UNDER NO CIRCUMSTANCES WILL YOKOGAWA BE LIABLE FOR ANY DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, BASED ON YOUR CLAIMS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, PROFITS, USE OF MONEY, INTERRUPTION IN USE OR AVAILABILITY OF THE WEB SITE OR THE INFORMATION), ARISING OUT OF YOUR USE OF THE WEB SITE OR ANY INFORMATION, BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. THIS PARAGRAPH WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW REQUIRES LIABILITY BEYOND AND DESPITE THE FOREGOING DISCLAIMER AND LIMITATION.

You agree to defend, indemnify and hold Yokogawa harmless from and against any damage, loss, liability or expense (including reasonable attorney's fee) that Yokogawa may suffer or incur as a result of any claim attributable to or based upon your use of this Web site or any of the Information. If for any reason you are not satisfied with this Web site or the Information, your sole remedy is to cease using this Web site or the Information.

Nothing in these terms and conditions will be construed to make Yokogawa or its business associates, customers or you an agent, employee, joint venture, partner, franchisee-franchisor or legal representative of any of the others. None of us will either have, or represent itself to have, any authority to bind another to any obligation.

9. Injunctive Relief

In the event you breach or threaten breach of this Agreement, you acknowledge and agree that Yokogawa will be greatly and irreparably damaged and the damage will be difficult to quantify. Therefore, Yokogawa may apply to any court of competent jurisdiction accepting jurisdiction under this specific provision, who, regardless of the Governing Law provision, will apply the laws of its own jurisdiction in determining whether Yokogawa will be granted injunctive or other equitable relief to stop your breach or your threat of breach, without impairing, invalidating, negating or voiding Yokogawa's rights to relief either in law or at equity.

10. Severability; Governing Law

If any provision of these terms and conditions is held to be unenforceable, this holding will not affect the validity of the other provisions. Yokogawa controls and operates this Web site from our offices in Newnan, Georgia. These terms and conditions, and your use of the Web site, will be governed by and interpreted in accordance with the laws of the State of Georgia, U.S.A, excluding its conflicts-of-law rules. Any controversy or dispute will be submitted to the state or federal courts in the Northern District of Georgia. You hereby consent to the personal jurisdiction of the State of Georgia, acknowledge that venue is proper in any state or Federal court in the State of Georgia, and waive any objection that may exist, now or in the future, with respect to any of the foregoing. These terms and conditions constitute the complete and exclusive statement of the terms, conditions and representations of the agreement between us with respect to this Web site and the Information and supersedes all other agreements with respect to the subject matter hereof.

11. Privacy Policy

We are committed to protecting your privacy and security and have explained in detail the steps we take to do so. Please read our Privacy Policy. It is incorporated into these Terms by this reference.

Services Standard Terms and Conditions of Sale

1. Contract Formation and Administration

1.1 Contract Formation. The terms and conditions contained in this Agreement apply to any Request for Field Services and any associated Equipment placed by Buyer with Seller.

1.2 Amendment. This Agreement may be amended by the parties only as expressly agreed to in writing and signed by both parties.

1.3 Entire Agreement. The terms and conditions contained or incorporated by reference in this Agreement constitute the complete and exclusive statement of the terms and conditions of the agreement between Buyer and Seller.

2. Prices and Payment

2.1 Pricing. The prices in this quotation shall be void thirty (30) days from the date hereof or upon Seller's prior notification of a price change to Buyer, whichever occurs first. Should Seller provide any associated Equipment to Buyer, the prices do not include freight charges. In any event, Seller shall prepay transportation charges and Buyer shall reimburse Seller for such charges within thirty (30) days of Buyer's receipt of Seller's invoice. All transportation charges shall be stated separately from other charges.

2.2 Transaction Taxes. The prices quoted herein do not include any federal, state, county, local or other taxes levied on any Request for Field Services and/or associated Equipment, it's use or sale, or on this agreement by any jurisdiction either inside or outside the United States. Such taxes, where Seller is required by law to collect them, whether designated as sales tax, gross receipts tax, occupation tax, etc., will be billed to Buyer based on the law in effect at the time of delivery unless Buyer furnishes Seller with a proper tax exemption certificate. Buyer shall reimburse Seller for any state, county, or local property taxes respecting the Items, imposed, assessed, billed or becoming due and payable by Seller on or after the date the Items or its component parts are located on Buyer's premises or the premises of any subcontractor.

2.3 Withholding Taxes. If Buyer is required by law to deduct or withhold taxes from a payment to Seller, then Buyer may make those deductions or withholdings (or both), provided that no tax agreement applies which exempts from or reduces any such deductions or withholdings. In the event that a tax agreement applies granting an exemption from or reduction of such deductions or withholdings, Seller will provide Buyer with any statements, certificate or documentation that may be required for the purpose of applying the exemption or reduction granted pursuant to the provisions of the applicable tax agreement, and Buyer will refrain from making any deductions or withholdings, in accordance to the terms thereof. Should Seller fail to provide Buyer with such required statement, certificate or documentation, and should Buyer be required to make any of those deductions or withholding as a result therefrom, Buyer will increase the payment to Seller by the amount necessary to ensure that Seller receives the full amount which it would have received if no deduction or withholding had been made, and will provide Seller with a receipt for each payment as it will be required by Seller for the purposes of enabling Seller to claim a credit for the amount of the payment against its own taxes in the United States.

2.4 Payment Terms.

2.4.1 Unless otherwise agreed to by Seller in writing, payment for any Request for Field Services and/or associated Equipment specified in this acknowledgment shall be due at Seller's main office, no later than (thirty) 30 days after shipment of the Equipment to Buyer's facilities. Partial shipments will be invoiced as shipped. Buyer agrees that Seller specifically retains a security interest under the Uniform Commercial Code in all the Equipment and all proceeds thereof to secure payment of all amounts due from Buyer to Seller. Any payment not made when due shall be subject to a charge of one and one-half percent (1-1/2%) finance charge per month or the highest allowed finance charge, whichever is less, on the unpaid balance and, if collected by or through an attorney at law. Buyer shall also pay Seller fifteen percent (15%) thereof or the maximum amount allowed by law, whichever is greater, as Seller's reasonable attorney's fees, and shall also pay other costs of collection. All Distributed Control System purchases shall be subject to the following progress payment schedule: 30% of the DCS order is due and payable at the time the DCS order is placed; 30% of the DCS order is due and payable upon the submittal of the design; 30% of the DCS order is due and payable upon the initiation of staging; and the final 10% of the DCS order is due and payable upon the completion of the factory acceptance test.

2.4.2 If at any time Buyer does not make timely payments or Seller determines that the financial condition of Buyer does not justify the terms of payment established, Seller may, at Seller's sole option, require full or partial payment in advance or shall have the right to cancel any purchase order and shall be reimbursed for Seller's reasonable and proper cancellation charges.

3. Delivery

3.1 Terms. Delivery terms are FCA Seller's plant or warehouse (per current Incoterms) or as otherwise agreed to as evidenced by Seller's order acknowledgment. In all cases title transfers to Buyer upon receipt by the first carrier for transport to Buyer, except that title to all intellectual property rights associated with the Products remains with Seller or its suppliers and licensors. Acknowledged shipping dates are approximate only and based on prompt receipt of all necessary information from Buyer. Seller disclaims all liability for late delivery.

4. Warranties and Remedies

4.1 Services Warranty. Seller expressly warrants and guarantees to Buyer that all Services performed by Seller hereunder (a) will be performed in a good and workmanlike manner by qualified persons selected and paid by Seller, and (b) will be performed in accordance with generally accepted professional standards and practices and in a manner consistent with the manner in which such Services are customarily performed by experienced and competent persons rendering the same or similar Services with regard to projects of similar size, cost, and complexity.

4.2 Equipment Warranty. Seller expressly warrants and guarantees to Buyer for the Warranty Period specified herein that all Equipment sold by Seller hereunder (a) will be of good quality and workmanship and free from defects, latent or patent, in materials and workmanship under normal operating conditions and proper application in accordance with specifications for operations as described in the Seller's Quotation, (b) will be manufactured utilizing new materials, unless otherwise specified or agreed by Buyer, and (c) will be free of all liens and encumbrances and claims of title of third parties. Third-party supplied hardware/software is warranted only to the extent of the stated warranty by the original manufacturer. Seller does not warrant the compatibility of its Equipment with the goods of other manufacturers or Buyer's application except to the extent expressly represented in Seller's published specifications or written quotation. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED USE.

4.3 Repair or Replacement of Non-Conforming Equipment or Services. During the warranty period, Buyer's sole and exclusive remedy under the warranty shall be limited to the repair or replacement of warranted Equipment or Services, location to be at Seller's option. In the event Seller elects to repair such Equipment or Services, Buyer will, at its cost, provide Seller with unobstructed access to the Equipment, adequate space in the immediate vicinity of the Equipment, and such facilities and systems, including, without limitation, forklifts, cranes and other equipment, as well as utility connects and disconnects, as may be necessary to facilitate performance by Seller of its obligations under the warranty. At Seller's option, any such non-conforming Equipment may be returned by Buyer, at Buyer's expense, to Seller's factory or authorized factory service center, or repaired in place at Buyer's facility. Seller shall not be responsible for any charges for labor and/or parts incidental to the removal and re-installation/ remounting of Equipment repaired or replaced under this warranty.

4.4 Warranty Period.

4.4.1 Equipment. Seller's Warranty Period is the earlier of (a) eighteen (18) months after shipment by Seller, or (b) twelve (12) months after the Equipment is placed in service, whichever occurs first. The warranty period shall not be extended or otherwise modified as a result of the repair or replacement of any non-conforming Equipment or its components. Buyer-supplied and/or Buyer-specified (or Buyer's customer-supplied and/or Buyer's customer-specified) items on systems, assemblies or power units are warranted per original manufacturer's warranty policy only.

4.4.2 Services. Seller's Warranty period for Services is for a period of ninety (90) days after the date the work is supplied. If any portion of the work proves to be defective within such period and prompt notification is made in writing, Seller will, at its own expense, supply the necessary technical direction or consultation to correct the defect.

4.5 Exclusions. The foregoing warranty does not cover conditions over which Seller has no control, including, without limitation, contamination, incorrect power supply, pressures in excess of recommended maximum, products damaged or subjected to voltage, humidity, or temperature outside of specified range, accident, abuse or misuse after shipment from Seller's factory, products altered, disassembled or repaired by anyone other than Seller's personnel, Seller authorized factory service center personnel or persons so designated in writing by Seller's Service Department prior to commencement of said work. Types of failures which are not attributable to defects in materials and/or workmanship and which are not considered by Seller as part of its warranty include, but are not limited to the following conditions caused by anyone other than Seller:

  • Damages due to deterioration during periods of storage by the Buyer prior to installation and operation.
  • Damage of any kind from erosive or corrosive action of any gases or liquids handled by the machinery.
  • Lack of or incorrect type of fluid, lubricants, air line additives.
  • Contamination of the fluid, lubricants, air line additives, or oil systems.
  • Damage attributable to accident, abuse, neglect.
  • Operating beyond the recommended maximum speeds, pressure, temperatures, voltage or humidity or below the recommended voltage.
  • Improper filtration.
  • Repairs by unauthorized service personnel.
  • Use of the product in a manner or purpose for which it was not designed or intended by Seller.
  • Misalignment, mis-wiring, high vibration.
  • Ordinary wear and tear.

Whenever possible, each provision of the foregoing warranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this warranty shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this warranty.

4.6 Incidental and Consequential Damages. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEM-PLARY, PUNITIVE, INDIRECT OR OTHER SIMILAR-TYPE DAMAGES, OR FOR CONTINGENT LIABILITIES INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, INCOME OR PROFITS, DOWNTIME COSTS, OR OTHER COMMERCIAL LOSS RESULTING FROM NON-CONFORMING EQUIPMENT OR SERVICES. SELLER'S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS AGREEMENT, OR FROM PERFORMANCE OR BREACH THEREOF, SHALL, IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE EQUIPMENT OR THE SERVICES, OR ANY UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. SELLER SHALL NOT IN ANY CASE BE LIABLE FOR PENALTIES OF ANY KIND OR DESCRIPTION.

5. Activities on the End-user Premises

5.1 Indemnity. Seller shall indemnify, hold harmless and defend Buyer including its agents and employees from and against all claims, damages, losses, and expenses (excluding attorneys' fees) arising out of or resulting from the performance of the work or services, provided that any such claim, damage, loss, or expense (a) is attributable to bodily injury, sickness, disease, or death, and (b) is caused in whole by any intentional or negligent act or omission of the Seller, or its employees, agents or contractors, and (c) is not caused by any intentional or negligent act or omission of Buyer, or its employees, agents or contractors. In any and all claims against any indemnified party by any employee of the Seller or any one acting on behalf of the Seller, the indemnification obligation under this sub-Section shall be limited by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Seller or anyone acting on behalf of the Seller under worker's compensation acts, disability benefit acts, or other employee benefit acts.

5.2 Insurance. Seller shall carry and maintain during performance of work or services contracted under any purchase order, the following insurance with minimum limits as reasonably specified by Buyer:

(a) Worker's compensation insurance in accordance with statutory requirements and employer's liability insurance in accordance with statutory requirements.

(b) Commercial general liability insurance covering bodily injury and property damage, including products and completed operations coverage with a minimum per occurrence and in the aggregate.

(c) Automobile liability insurance covering bodily injury and property damage including coverage for owned, hired, and non-owned automobiles with a minimum combined single limit. Each party shall furnish the other party certificates showing that such insurance is in full force and effect prior to commencing the performance of work or services contracted under any Purchase Order from Buyer, and each Party shall provide the other Party with written notice within a reasonable time after receipt by such Party of notice from its insurer that any coverage required hereunder is being canceled or materially modified. All such insurance shall be endorsed to provide contractual liability.

(d) The sufficiency of Seller's insurance coverages shall be deemed to be accepted by Buyer at such time as Buyer initiates payment to Seller, and Buyer shall be deemed to have waived any claims against Seller related to Seller's obligation to obtain insurance compliant with the contract.

5.3 Buyer's All Risk Insurance. Seller shall provide reasonable protection for its job site material and work, but shall be liable for losses only to the extent caused by Seller's negligence. It is understood and agreed to that Buyer's all-risk insurance (or that of the property owner where the Equipment is located) includes coverage for the full value of loss or damage to Seller's work in place, for its stored material, and for its material in transit.

5.4 Additional Insureds. Seller will not be required to add additional insureds to any insurance policy, nor to waive subrogation for claims covered by workers' compensation or commercial general liability insurance. Seller shall maintain insurance with coverage and limits only as provided by Seller's existing insurance program evidenced by its certificate of insurance available on request.

5.5 Temporary Site Facilities. Except as specifically required by the Work and specifications included in this bid proposal, Buyer shall furnish all temporary site facilities, including but not limited to site access, storage space, hoisting facilities, guard rails, covers for floor, roof and wall openings, security, parking, safety orientation, break and lunch facilities, toilet and wash facilities, drinking water and other water facilities, electrical service, telecommunication service, lighting, heat, ventilation, weather protection, fire protection, and trash and recycling services.

5.6 Damage by Other Parties. Seller is not responsible for damage to its Work by other parties, and any repair work necessitated by such damage is extra work. All materials shall be furnished in accordance with the respective industry tolerance of color variation, thickness, size, finish, texture and performance standards. All warranty claims for Seller's work must be received by Seller within the warranty period, and Seller must be provided a reasonable opportunity to inspect and make corrections, or such warranty claims are barred.

5.7 Documents, Materials, Work, Etc. of Third Parties. Seller's obligation to examine documents, the project site, and materials and work furnished by others is limited to notification to Buyer of any defects or deficiencies that a person in the trade of Seller would discover by reasonable visual inspection. No testing beyond reasonable visual inspection shall be required. Seller is entitled to rely on the accuracy and completeness of plans, specifications, and reports of site conditions provided to Seller. Any design services provided by Seller will be reviewed by Designer to assure acceptability when integrated with the entire work. Buyer is entitled to rely on the accuracy and completeness of design services or certifications provided by Seller only to the extent that design responsibility is specifically delegated to Seller by agreement in writing and all design and performance criteria are furnished to Seller.

5.8 Backcharge Claims. No backcharge or claim of Buyer for services shall be valid except by an agreement in writing by Seller before the work is executed. In the event of Seller's failure to meet any requirement of this Agreement, Buyer shall notify Seller of such default, in writing, and allow Seller reasonable time to correct any deficiency before incurring any costs chargeable to Seller. No backcharge shall be valid unless agreed upon in writing and billing is rendered no later than the 15th day of the month following the charge being incurred. Furthermore, any payments withheld under a claim of Seller default shall be reasonably calculated to cover the anticipated liability and all remaining payment amounts not in dispute shall be promptly paid.

5.9 Closeout Documentation. Buyer will not require any contract closeout procedures or any forms that have not been provided to and specifically accepted in writing by Seller prior to signature of the Agreement.

6. Gate Passes

Seller's service personnel are not authorized to sign any documents, which affect or alter the legal relationship, rights or obligations between Seller and its customer. However, it is recognized that gate passes and sign-in registrations are required by most customers in order to monitor visits and to obtain some assurance that the visitors understand basic safety and accident prevention rules. Accordingly, should Seller's service personnel be required to sign any passes, registration or other papers to be admitted to a plant, the signatures shall be limited to the aforesaid purposes and under no circumstances, notwithstanding any languages contained therein, shall any of the rights, duties or obligations of Seller be altered in any way, nor shall any signatures be effective as a waiver of any personal rights.

7. Compliance with Laws

7.1 Governmental Authorizations, Approvals, Permits and Licenses. Unless otherwise agreed, Buyer shall apply for, pay for and obtain on a timely basis all federal, state, local and municipal authorizations, approvals, permits and licenses which may be required in connection with the installation and operation of the Equipment. Buyer and Seller will assist each other in every manner reasonably possible in securing such authorizations, approvals, permits and licenses.

7.2 Government Procurement Laws and Regulations. If the Items provided are purchased under a government contract or sub-contract, Buyer shall promptly notify Seller (prior to Seller's Quotation) of the provisions of any government procurement laws and regulations. To the fullest extent permitted by law, Buyer agrees to indemnify Seller and hold Seller harmless from any and all associated costs incurred by Seller, and any and all penalties imposed upon Seller in order for Seller to comply with government flow-down provisions. Items sold or licensed hereunder are not intended to be used, nor should they be used, in any nuclear-related application either as a "Basic Component" as defined under United States nuclear regulations or under similar nuclear laws and regulations of any other country or otherwise.

7.3 Anti-Corruption Practices. Buyer shall not, nor any of its respective equity holders, affiliates, beneficial owners, partners, officers, directors, employees or agents, in connection with the sale or purchase of the Equipment hereunder, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value to (i) any official or employee of any government, or any department, agency, or instrumentality thereof in the United States or any foreign country, (ii) any political party or official thereof, or to any candidate for foreign political office in the United Stated or any foreign country, or (iv) any official or employee of any public international organization, in each case for the purpose of influencing any act or decision of such official, employee, party or candidate or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage for Buyer or otherwise promoting the business interests of Buyer in any respect

7.4 Export Controls.

7.4.1 Equipment and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Notwithstanding any other provision herein to the contrary, in the event that U.S. or local law requires export authorization for the export or re-export of any Equipment or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, Seller will be relieved of any further obligation relative to the sale and/or license and delivery of the Equipment(s) subject to such denial without liability of any kind relative to Buyer or any other party. Seller will not comply with boycott related requests except to the extent permitted by U.S. law and then only at Seller's discretion.

7.4.2 Buyer further certifies that the Items: (a) are not intended to be used for any purpose prohibited by the Regulations, including, without limitation, terrorism, nuclear related activities or chemical/ biological weapons or missiles; (b) are not intended to be released, shipped or re-exported, either directly or indirectly, to any other destination to which the United States has embargoes, restrictions, prohibited exports and/or re-exports of Items to countries as designated in the Regulations, and (c) are not intended to be released, shipped or re- exported, either directly or indirectly, to any persons identified on any sanctioned parties lists published by a US Government Agency, including but not limited to, the lists published by the U.S. Department of Commerce, Bureau of Industry and Security; US Department of Treasury, OFAC and US State Department.

7.4.3 Buyer shall not, nor any of its respective equity holders, affiliates, beneficial owners, partners, officers, directors, employees or agents, in connection with the sale of the Equipment hereunder, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value to (i) any official or employee of any government, or any department, agency, or instrumentality thereof in the United States or any foreign country, (ii) any political party or official thereof, or to any candidate for foreign political office in the United Stated or any foreign country, or (iv) any official or employee of any public international organization, in each case for the purpose of influencing any act or decision of such official, employee, party or candidate or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage for Buyer or otherwise promoting the business interests of Buyer in any respect.

8. Miscellaneous

8.1 Notices. All written notices, requests, demands, consents, certificates or other communications required or permitted to be given hereunder shall be sufficiently given when mailed by (a) certified mail, return receipt requested, postage prepaid, (b) commercial overnight delivery courier, fees prepaid, or (c) e-mail and/or facsimile transmission, addressed to Buyer or Seller, as the case may be, at their respective addresses set forth on the first page of this Agreement and below. Either party may, by like notice at any time and from time to time, designate a different address to which notices shall be sent.

8.2 Assignment. The Agreement evidenced hereby may not be assigned by either party without the written consent of the other (which consent will not be unreasonably withheld). However, consent will not be required for internal transfers and assignments as between Seller and its parent company, subsidiaries or affiliates as part of a consolidation, merger or any other form of corporate reorganization.

8.3 Waiver. The waiver by Seller of any term, provision, or condition hereunder must be in writing and shall not be construed to be a waiver of any other term, condition, or provision hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same condition or provision on this order or on future orders.

9. Dispute Resolution

9.1 Settlement of Disputes. The parties will attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to and be resolved by in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as from time to time amended and in effect. Any litigation or arbitration arising out of this Agreement shall be brought, maintained and administered in Harris County, Texas. ANY CONTROVERSY, DISPUTE, OR CLAIM THAT PURCHASER MAY HAVE AGAINST SELLER MUST BE INITIATED NO LATER THAN ONE (1) YEAR AFTER THE CLAIM ORIGINATED.

9.2 Governing Law and Jurisdiction. This Agreement is made in and shall be governed by the laws of the State of Texas, without giving effect to the conflict of laws provisions of the laws of the State of Texas.

Instrumentation Terms and Conditions of Sale

1. General

These general terms and conditions of sale (along with any associated written specification, quotation and/or supplemental terms and conditions provided by Seller) exclusively will govern the sale or licensing by Seller of all goods and services (including without limitation, hardware, firm-ware and software products, programming, engineering, parts, and remanufacturing services – hereinafter, "Products") furnished to Buyer, and represents the entire agreement between Buyer and Seller with respect thereto. Buyer's receipt or acceptance of delivery of any of the Products ordered or purchased hereunder will constitute its acceptance of these terms and conditions. No addition or modification to these terms and conditions will be binding on Seller unless agreed to in writing signed by an authorized representative at Seller's headquarters. Seller objects to and rejects other terms and conditions that may be proposed by Buyer or that appear on or are referenced in Buyer's purchase order or requisition that are in addition to or otherwise not consistent with the terms and conditions set forth or referenced herein.

2. Payment Terms

Net thirty (30) days from date of invoice with ongoing approved credit as determined by Seller. Seller may render partial invoices and require progressive payments. Seller reserves the right to suspend any further performance hereunder or otherwise in the event payment is not made when due. No payment by offset is permitted. Interest charges will be added to overdue invoices at the rate of 1.5% per month (subject to any limit imposed by applicable law).

3. Delivery Terms

Delivery terms are FCA Seller's plant or warehouse (per current Incoterms) or as otherwise agreed to as evidenced by Seller's order acknowledgment. In all cases title transfers to Buyer upon receipt by the first carrier for transport to Buyer, except that title to all intellectual property rights associated with the Products remains with Seller or its suppliers and licensors. Acknowledged shipping dates are approximate only and based on prompt receipt of all necessary information from Buyer. Seller disclaims all liability for late delivery.

4. Warranty

(a) Hardware: Unless otherwise specified in writing, Seller warrants that new hardware Products furnished here-under will be free from defects in material, workmanship and design for a period of (a) eighteen (18) months after shipment by Seller, or (b) twelve (12) months after the Products are placed in service, whichever occurs first. Repaired or replacement of non-conforming Products provided as a result of this warranty subparagraph are similarly warranted for a period of six (6) months from the date of shipment to Buyer or the remainder of the original warranty term for that particular Product, whichever is longer.

(b) Software and Firmware: Unless otherwise provided in a Seller or third party license, Seller warrants that standard software or firmware Products furnished hereunder, when used with Seller-specified hardware, will perform in accordance with published specifications prepared, approved, and issued by Seller for a period of sixty (60) days from the date of invoice from Seller or its appointed distributor, as the case may be. Seller makes no representation or warranty, express or implied, that the operation of the software or firmware Products will be uninterrupted or error free, or that the functions contained therein will meet or satisfy Buyer's intended use or requirements.

(c) Services: Seller warrants that Products comprised solely of services (e.g., training, on-site repair, engineering and custom application programming services) will be performed by appropriately skilled personnel employed or retained by Seller for a period of ninety (90) days after the date the work is supplied.

(d) Buyer Specifications/Compatibility: Seller does not warrant and will not be liable for any design, materials, construction criteria or goods furnished or specified by Buyer (including that sourced from other manufacturers or vendors specified by Buyer). Any warranty applicable to such Buyer-specified items will be limited solely to the warranty, if any, extended by the original manufacturer or vendor directly or indirectly to Buyer. Seller does not warrant the compatibility of its Products with the goods of other manufacturers or Buyer's application except to the extent expressly represented in Seller's published specifications or written quotation.

(e) Remedies: Remedies under the above warranties will be limited, at Seller's option, to the replacement, repair, re-performance or modification of, or issuance of a credit for the purchase price, of the non-conforming Products involved, and where applicable, only after the return of such Products pursuant to Seller's instructions. Replacement Products may be new, remanufactured, refurbished or reconditioned at Seller's discretion. Buyer requested on-site warranty service (consisting of time, travel and expenses related to such services) will be at Buyer's expense. The foregoing will be the exclusive remedies for any breach of warranty or breach of contract arising therefrom.

(f) General: Warranty satisfaction is available only if (a) Seller is provided prompt written notice of the warranty claim and (b) Seller's examination discloses that any alleged defect has not been caused by misuse; neglect; improper installation, operation, maintenance, repair, alteration or modification by other than Seller; accident; or unusual deterioration or degradation of the Products or parts thereof due to physical environment or electrical or electro- magnetic noise environment.

(g) THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE, OR PERFORMANCE OR APPLICATION WARRANTIES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW. Rights under the above warranties (subject to noted limitations) extend to Buyer's customers if Buyer is a Seller-appointed distributor for the Products.

5. Disclaimers and Limitation of Liability

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SELLER WILL NOT BE LIABLE FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. SELLER'S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE COST OF THE PRODUCT(S) GIVING RISE TO THE CLAIM OR LIABILITY. ANY ACTION AGAINST SELLER MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION HEREOF AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHERWISE, AND FURTHER WILL EXTEND TO THE BENEFIT OF SELLER'S VENDORS, APPOINTED DISTRIBUTORS AND OTHER AUTHORIZED RESELLERS AS THIRD-PARTY BENEFICIARIES. EACH PROVISION HEREOF WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.

6. Intellectual Property

(a) Seller warrants that the Products shall not infringe any patent. If Buyer provides timely notice, information and assistance, Seller shall indemnify and defend Buyer from and against any claimed infringement, which would constitute a breach of this warranty. In the event the Products are found to infringe any patent, Seller shall at its option procure for Buyer the right to continue use, replace the Products with non-infringing goods, modify the Products so that they are non-infringing or upon return of the Products to Seller, refund the purchase price less reasonable depreciation. Seller grants no license, express or implied, other than the right of Buyer to use the Products.

(b) Seller makes no warranty with respect to and shall not be liable for, any infringement relating to or arising out of:

  1. Products manufactured to Buyer's design or specifications, or
  2. use of the Products in conjunction with any other product not furnished by Seller or in a combination not furnished by Seller. With respect to any claimed infringements arising out of circumstances described in this sub-Section 7.2 Buyer shall indemnify and defend Seller against any and all loss, damage, costs and expenses including reasonable attorney fees.

(c) Buyer agrees to hold Seller harmless from any liability of Seller for infringement of patents by reason of manufacturing according to Buyer's design or by reason of the incorporation of said part in a more comprehensive assembly than sold by the Seller.

7. Licensed Software and Firmware

Use of Products comprised of software or firmware may be subject to Buyer's acceptance of additional terms and conditions set forth in separate Seller or third-party license agreements that will control to the extent necessary to resolve any conflict with the terms and conditions stated or otherwise referenced herein. In the absence of a separate Seller's license agreement, Buyer is granted a non-exclusive, non-transferable license to use provided Seller's software or firmware only in object code form and solely in conjunction with Seller-provided Products, with no rights to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software or firmware.

8. Packing and Marking

Buyer-specified packing or marking may be subject to additional charges not otherwise included in the price of the Products.

9. Weights and Dimensions

Published or advertised weights and dimensions are estimates or approximations only and are not warranted.

10. Prices

(a) Prices and other information shown in any Seller publication (including product catalogs and brochures) are subject to change without notice and to confirmation by specific quotation. Such publications are not offers to sell and are maintained only as a source of general information. Time and material services will be provided in accordance with Seller's published service rates (including applicable overtime and travel expenses) in effect as of the date such services are provided, unless otherwise confirmed by Seller's written quotation or order acknowledgment. Billable service time includes travel time to and from the job site and all time Seller's representatives are available for work and waiting (whether on or off the job site) to perform the services

(b) Prices do not include sales, use, excise, customs, value-added or similar taxes. Buyer will pay or reimburse Seller for all such taxes as may be applicable.

(c) If Buyer is required by law to deduct or withhold taxes from a payment to Seller, then Buyer may make those deductions or withholdings (or both), provided that no applicable tax agreement applies which exempts from or reduces any such deductions or withholdings. In the event that a tax agreement applies granting an exemption from or reduction of such deductions or withholdings, Seller will provide Buyer with any statements, certificate or documentation that may be required for the purpose of applying the exemption or reduction granted pursuant to the provisions of the applicable tax agreement, and Buyer will refrain from making any deductions or withholdings, in accordance to the terms thereof. Should Seller fail to provide Buyer with such required statement, certificate or documentation, and should Buyer be required to make any of those deductions or withholding as a result therefrom, Buyer will increase the payment to Seller by the amount necessary to ensure that Seller receives the full amount which it would have received if no deduction or withholding had been made, and will provide Seller with a receipt for each payment as it will be required by Seller for the purposes of enabling Seller to claim a credit for the amount of the payment against its own taxes in the United States.

11. Changes and Substitutions

Buyer-requested order changes, including those affecting the identity, scope and delivery of the Products, must be documented in writing and are subject to Seller's prior approval and adjustments in price, scheduling and other affected terms and conditions. In any event, Seller reserves the right to reject any change that it deems unsafe, technically inadvisable or inconsistent with established engineering or quality guidelines and standards, or incompatible with Seller's design or manufacturing capabilities. Seller further reserves the right to substitute using the latest superseding revision or series or equivalent Product having comparable form, fit and function.

12. Returns

All returns of Products will be pursuant to Seller's instructions. Non-warranty returns of unused and resalable Products for credit will be subject to Seller's return policies in effect at the time, including applicable restocking charges and other conditions of return. Products returned under warranty must be properly packed and shipped to Seller-specified locations. Shipping containers must be clearly marked per Seller's instruction and shipped freight prepaid by Buyer.

13. Order Cancellation

Cancellation by Buyer prior to shipment is permitted only by written notice and upon payment to Seller of reasonable cancellation and restocking charges, including reimbursement for direct costs. Cancellation charges associated with orders for custom Products or Products specifically manufactured to Buyer's specification may equal the actual selling price of the Products. Seller has the right to cancel an order for cause at any time by written notice, and Seller will be entitled to cancellation and restocking charges as identified above. No termination by Buyer for cause will be effective unless and until Seller has failed to correct such alleged cause within forty-five (45) days after receipt of Buyer's written notice specifying such cause.

14. Force Majeure

Seller will not be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God, acts or omissions of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, Seller's performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.

15. Government Clauses and Contracts

Application of government contract regulations and clauses to the Products or the agreement evidenced by these terms and conditions are subject to the separate review and consent by an authorized representative at Seller's headquarters. To the fullest extent permitted by law, Buyer agrees to indemnify Seller and hold Seller harmless from any and all associated costs incurred by Seller, and any and all penalties imposed upon Seller in order for Seller to comply with government flow-down provisions. Products sold or licensed hereunder are not intended to be used, nor should they be used, in any nuclear-related application either as a "Basic Component" as defined under United States nuclear regulations or under similar nuclear laws and regulations of any other country or otherwise.

16. Compliance with Anti-Corruption Practices

Buyer shall not, nor any of its respective equity holders, affiliates, beneficial owners, partners, officers, directors, employees or agents, in connection with the sale and purchase of the Products hereunder, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value to (i) any official or employee of any government, or any department, agency, or instrumentality thereof in the United States or any foreign country, (ii) any political party or official thereof, or to any candidate for foreign political office in the United Stated or any foreign country, or (iv) any official or employee of any public international organization, in each case for the purpose of influencing any act or decision of such official, employee, party or candidate or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage for Buyer or otherwise promoting the business interests of Buyer in any respect.

17. Export Control

Products and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Notwithstanding any other provision herein to the contrary, in the event that U.S. or local law requires export authorization for the export or re-export of any Product or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, Seller will be relieved of any further obligation relative to the sale and/or license and delivery of the Product(s) subject to such denial without liability of any kind relative to Buyer or any other party. Seller will not comply with boycott related requests except to the extent permitted by U.S. law and then only at Seller's discretion.

18. Disputes

The parties will attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to and be resolved by in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as from time to time amended and in effect. Any litigation or arbitration arising out of this Agreement shall be brought, maintained and administered in Harris County, Texas. ANY CONTROVERSY, DISPUTE, OR CLAIM THAT PURCHASER MAY HAVE AGAINST SELLER MUST BE INITIATED NO LATER THAN ONE (1) YEAR AFTER THE CLAIM ORIGINATED.

19. Governing Law and Jurisdiction

This Agreement is made in and shall be governed by the laws of the State of Texas, without giving effect to the conflict of laws provisions of the laws of the State of Texas.

20. Assignment

The Agreement evidenced hereby may not be assigned by either party without the written consent of the other (which consent will not be unreasonably withheld). However, consent will not be required for internal transfers and assignments as between Seller and its parent company, subsidiaries or affiliates as part of a consolidation, merger or any other form of corporate reorganization.

Systems Engineering and Integration Standard Terms and Conditions of Sale

1. Definitions

1.1 Agreement. "Agreement" means this Engineered Systems and Services Standard Terms and Conditions of Sale, together with all Exhibits and Schedules incorporated in this Agreement by reference, all Purchase Orders and Change Orders issued pursuant to the Agreement, all Plans and Specifications applicable to this Agreement, and all Amendments to this Agreement.

1.2 Amendment. "Amendment" means a Change Order, written document, or letter signed by or on behalf of both Buyer and Seller, which is intended to modify this Agreement.

1.3 Buyer. "Buyer" means the legal entity, firm, or any-one ordering goods and/or services from Seller.

1.4 Change Order. "Change Order" means a written document which is intended to make changes in the character or quantity of the items to be furnished hereunder, including changes in Plans and Specifications, instructions for work, methods of shipment or packaging, or schedules of or places for delivery of the items.

1.5 Confidential Information. "Confidential Information" means any and all written or documentary information of either the Seller or Buyer transmitted to the other party hereunder and which is marked "Confidential" or Proprietary" at the time of its transmission to the receiving party, and includes information generated by the receiving party that reflects or reveals confidential and proprietary information of the transmitting party. Confidential Information includes, but is not limited to, design and development information, whether conceptual or not or patentable or not, drawings, specifications, graphs, as well as engineering, manufacturing, business and marketing plans and processes, strategies and financial studies and analysis.

1.6 Designer. "Designer" means Buyer or any other party providing Plans and Specifications to Seller.

1.7 Equipment. "Equipment" means the goods, which are described in Seller's Quotation.

1.8 Items. "Items" means all Equipment and Services.

1.9 Plans and Specifications. "Plans and Specifications" means all drawings and other written and pictorial descriptions of the Equipment, whether prepared by or at the direction or on behalf of Buyer, Seller, or any other person, intended to fit and describe the size, quality and character of the Equipment, its systems, materials and other appropriate elements.

1.10 Premises. "Premises" means the location designated by Buyer at which Equipment is to be installed or Services are to be performed.

1.11 Purchase Order. "Purchase Order" means a purchase order issued by Buyer on Buyer's standard purchase order form.

1.12 Seller. "Seller" means Yokogawa Corporation of America.

1.13 Seller's Quotation. "Seller's Quotation" means the written quotation or proposal issued by Seller to Buyer in response to Buyer's request for a bid, quotation, proposal or similar communication.

1.14 Services. "Services" means all acts, work, labor and other personal services (including, without limitation, professional services, training and supervision, and transportation of Equipment) done by or at the direction or on behalf of Seller for the benefit of Buyer.

1.15 Work. "Work" means Seller's Equipment, Services, or Items provided to Buyer.

2. Contract Formation and Administration

2.1 Contract Formation. The terms and conditions contained in this Agreement apply to any Purchase Order placed by Buyer with Seller with respect to the Items.

2.2 Other Terms. Any terms contained in Buyer's offer to buy, request for quotation, Purchase Order or any other form or communication received from Buyer which are in addition to or different from the terms and conditions contained in this Agreement are expressly objected to and shall be deemed rejected by Seller, unless expressly accepted in writing by Seller. In the event that the printed terms of Seller's order acknowledgment are in conflict with the terms of this Agreement, the terms of this Agreement shall control. In the event that the terms of Seller's Quotation add to or conflict with the terms of this Agreement, the terms of Seller's Quotation shall control.

2.3 Amendment. This Agreement may be amended by the parties only as expressly agreed to in writing and signed by both parties.

2.4 Change Orders. Change Orders may be submitted by either Buyer or Seller. All Change Orders must be in writing and signed by a duly authorized representative of Buyer and Seller. If any Change Order results in an increase (or decrease) in Seller's cost or in the time for performance, Seller shall be entitled to an equitable adjustment in the price or time for performance of the work covered by this Agreement based upon the actual difference in expense or time necessary for performance of the work, together with a reasonable allocation of overhead and profit. Seller shall provide an estimate of any anticipated price increase or delay in performance time within thirty (30) days of the date of receipt of Buyer's Change Order. However, notwithstanding the foregoing, Seller shall be under no obligation to proceed with major changes in the original Scope of Work without Buyer's written Change Order, and an equitable adjustment in price and/or time to complete the Scope of Work.

2.5 Entire Agreement. The terms and conditions contained or incorporated by reference in this Agreement constitute the complete and exclusive statement of the terms and conditions of the agreement between Buyer and Seller for the purchase and sale of the Items to be purchased and sold hereunder and/or Services provided.

3. Shipment Terms

3.1 Packaging, Labeling and Shipping. Seller will package and load the Equipment so as to avoid any damage in transit, identify the Equipment by displaying Buyer's name, address and Purchase Order number on each unit or package shipped, and ship the Equipment in the manner and by the route and carrier specified in Seller's Quotation. A packing list in English will be enclosed in all shipments showing Buyer's Purchase Order number and the exact quantity and description of Equipment shipped. Bills of lading showing full routing, car or truck number, other customary data and Buyer's Purchase Order number shall be dated and be included at the time of each shipment.

3.2 Notice of Shipment. Seller shall use good faith efforts to provide Buyer at least one (1) day advance written notice of the dates upon which each shipment will be made. Each notice shall also specify the mode of each shipment (rail, motor carrier, etc.), whether the shipment requires a load permit, and the maximum total value, weight, dimensions and point of origin of each shipment. This requirement must be specifically stated on the driver's bill of lading.

3.3 Shipment. All Shipping Dates are estimates only, as per Seller's quotation or order acknowledgement. Title and risk of loss shall pass to Buyer upon Seller tendering the Equipment with a carrier at the shipping point set forth in Seller's Quotation.

3.4 Force Majeure. Seller will not be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to perform hereunder due to causes beyond its reasonable control, including without limitation, acts of God, acts or omissions of Buyer, acts of civil or military authority, fires, strikes, floods, epidemics, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, Seller's performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.

3.5 Progress Reports. Seller shall, upon request by Buyer, provide Buyer with written reports on the status of Seller's work under this Agreement.

3.6 Project Schedule and Price Adjustments. Seller shall be entitled to equitable adjustments of the time to perform and/or Agreement price, including but not limited to any increased costs of labor, supervision, equipment or materials, and reasonable overhead and profit, for any modification of the project schedule differing from the bid schedule, and for any other delays, acceleration, out-of-sequence work and schedule changes beyond its reasonable control, or other delays caused by Buyer or others. Seller may impose upon Buyer reasonable charges for storage for any Items completed by Seller and not shipped when ready to ship due to Buyer's request, including Seller's reasonable costs of demobilization, delay, and remobilization. Should work be delayed by any of the afore-mentioned causes for a period exceeding ninety (90) days, Seller shall be entitled to terminate the Agreement. Seller's change proposals must be processed in not more than thirty (30) calendar days or as otherwise indicated on the change proposal.

4. Prices, Payment and Acceptance

4.1 Pricing. The prices in this quotation shall be void thirty (30) days from the date hereof or upon Seller's prior notification of a price change to Buyer, whichever occurs first. The prices do not include freight charges. Seller shall prepay transportation charges and Buyer shall reimburse Seller for such charges within thirty (30) days of Buyer's receipt of Seller's invoice. All transportation charges shall be stated separately from other charges

4.2 Transaction Taxes. The prices quoted herein do not include any federal, state, county, local or other taxes levied on the Items, it's use or sale, or on this agreement by any jurisdiction either inside or outside the United States. Such taxes, where Seller is required by law to collect them, whether designated as sales tax, gross receipts tax, occupation tax, etc., will be billed to Buyer based on the law in effect at the time of delivery unless Buyer furnishes Seller with a proper tax exemption certificate. Buyer shall reimburse Seller for any state, county, or local property taxes respecting the Items, imposed, assessed, billed or becoming due and payable by Seller on or after the date the Items or its component parts are located on Buyer's premises or the premises of any subcontractor.

4.3 Withholding Taxes. If Buyer is required by law to deduct or withhold taxes from a payment to Seller, then Buyer may make those deductions or withholdings (or both), provided that no tax agreement applies which exempts from or reduces any such deductions or withholdings. In the event that a tax agreement applies granting an exemption from or reduction of such deductions or withholdings, Seller will provide Buyer with any statements, certificate or documentation that may be required for the purpose of applying the exemption or reduction granted pursuant to the provisions of the applicable tax agreement, and Buyer will refrain from making any deductions or withholdings, in accordance to the terms thereof. Should Seller fail to provide Buyer with such required statement, certificate or documentation, and should Buyer be required to make any of those deductions or withholding as a result therefrom, Buyer will increase the payment to Seller by the amount necessary to ensure that Seller receives the full amount which it would have received if no deduction or withholding had been made, and will provide Seller with a receipt for each payment as it will be required by Seller for the purposes of enabling Seller to claim a credit for the amount of the payment against its own taxes in the United States.

4.4 Payment Terms.

4.4.1 Unless otherwise agreed to by Seller in writing, payment for each Item specified in this acknowledgment shall be due at Seller's main office, no later than (thirty) 30 days after shipment of the Equipment to Buyer's facilities. Partial shipments will be invoiced as shipped. Buyer agrees that Seller specifically retains a security interest under the Uniform Commercial Code in all the Equipment and all proceeds thereof to secure payment of all amounts due from Buyer to Seller. Any payment not made when due shall be subject to a charge of one and one-half percent (1-1/2%) finance charge per month or the highest allowed finance charge, whichever is less, on the unpaid balance and, if collected by or through an attorney at law. Buyer shall also pay Seller fifteen percent (15%) thereof or the maximum amount allowed by law, whichever is greater, as Seller's reasonable attorney's fees, and shall also pay other costs of collection. All Distributed Control System purchases shall be subject to the following progress payment schedule: 30% of the DCS order is due and payable at the time the DCS order is placed; 30% of the DCS order is due and payable upon the submittal of the design; 30% of the DCS order is due and payable upon the initiation of staging; and the final 10% of the DCS order is due and payable upon the successful system start up or within 21 days of completion of the factory acceptance test, whichever is later.

4.4.2 If at any time Buyer does not make timely payments or Seller determines that the financial condition of Buyer does not justify the terms of payment established, Seller may, at Seller's sole option, require full or partial payment in advance or shall have the right to cancel any purchase order and shall be reimbursed for Seller's reasonable and proper cancellation charges.

4.4 Invoices and Credit. Pro rata payments shall become immediately due and payable upon Seller's completion of milestone criteria and/or delivery without set off and without further act or deed of Seller. Seller reserves the right to grant, deny or stop advancing credit at any time in its sole discretion. Seller's credit policies are subject to change at any time without notice. Buyer hereby consents to Seller giving or obtaining credit information to or from third parties regarding Buyer.

4.5 Inspection and Testing during Manufacturing. Buyer or Buyer's representatives shall have the right, upon reasonable notice to Seller (usually thirty (30) days in advance of test) to inspect and witness Seller's testing of all Equipment at Seller's premises. Seller shall provide manufacturing facilities for inspections by Buyer, and shall furnish full information regarding all materials entering into the production of the Equipment. Buyer shall immediately notify Seller of any deficiencies identified by Buyer, and Seller shall have a reasonable time within which to rectify such deficiency. Buyer's waiver of inspection constitutes Buyer's acceptance of Seller's test results verifying that the Equipment conforms to the Plans and Specifications. 4.6 Accuracy of Testing Results. The performance, quality, quantities, dimensions, weight, capacity, conformity and characteristics as established in the Plans and Specifications will be deemed accurate when the Equipment is demonstrated to conform with the Plans and Specifications at the time of inspection or testing at Seller's premises.

4.7 Factory Acceptance of Equipment. Buyer accepts the Equipment upon satisfactory inspection and testing at Seller's premises. Delivery terms are FCA Seller's plant or warehouse (per current Incoterms) or as otherwise agreed to as evidenced by Seller's order acknowledgment.

4.8 Acceptance of Services. Any Services performed by Seller relating in any way to Equipment produced by Seller will be subject to this Agreement. Buyer Accepts any Services performed upon the earlier of (a) when Services are performed unless exception is taken at that time in writing, or (b) upon sign-off of Seller's personnel's daily time sheets by Buyer's representative. 4.9 Cost of materials. A change in the price of an item of more than five percent (5%) between the date of Seller's quotation and the date of Seller's procurement or installation shall warrant an equitable adjustment in the Agreement price, which the parties agree to negotiate in good faith. 4.10 Suspension of Work. In the event of a suspension of work by Buyer and/or project owner, Buyer's liability to Seller is for payment in full for all Work performed to the date of suspension, costs of delay, demobilization and remobilization that result from the suspension, and an equitable adjustment of the schedule.

5. Buyer's Activities Upon Seller's Manufacturing Premises

5.1 Indemnity. Buyer shall indemnify, hold harmless and defend Seller, including its agents and employees, from and against all claims, damages, losses, and expenses (including attorneys' fees) arising out of or resulting from the Buyer or Buyer's representative's performance of Work on Seller's premises, provided that any such claim, damage, loss, or expense (a) arises out of bodily injury, sickness, disease, or death, or property damage, and (b) is caused by the negligent act or omission of the Buyer, or its employees, agents, customers or contractors, and (c) is not caused by any intentional or negligent act or omission of Seller, or its employees, agents or contractors. In any and all claims against any indemnified party by any employee of the Buyer or any one acting on behalf of the Buyer, the indemnification obligation under this sub-Section shall not be limited by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Buyer or anyone acting on behalf of the Buyer under worker's compensation acts, disability benefit acts, or other employee benefit acts.

5.2 Insurance. Buyer shall carry and maintain with respect to Buyer's performance of Work, the following insurance with coverage and minimum limits as reasonably specified by Seller:

(a) Worker's compensation insurance in accordance with statutory requirements and employer's liability insurance in accordance with statutory requirements.

(b) Commercial general liability insurance covering bodily injury and property damage, including products and completed operations coverage with a minimum per occurrence and in the aggregate.

(c) Automobile liability insurance covering bodily injury and property damage including coverage for owned, hired, and non-owned automobiles with a minimum combined single limit. Buyer shall furnish Seller certificates showing that such insurance is in full force and effect prior to participating in any activities on Seller's premises. Commercial general liability insurance shall be endorsed to provide contractual liability.

(d) In the event that Seller agrees to add Buyer as an additional insured under any Work, then Buyer will also be required to add Seller as an additional insured to any Buyer insurance policy, and to waive subrogation for claims covered by workers' compensation or commercial general liability insurance.

5.3 Safety. Buyer and Buyer's representatives will comply with all of Seller's safety policies as well as all applicable rules, regulations, order and other lawful requirements established to prevent injury, loss or damage to persons or property.

5.4 Buyer supplied software, equipment, or personnel. In the event that the availability or functioning (as well as non-availability or non-functioning) of Buyer supplied software, equipment, or personnel delays negatively impacts the manufacturing process, including testing, Buyer agrees to be liable for all additional costs to Seller which may result, including delays to project schedule.

6. Warranties and Remedies

6.1 System Warranty. Seller expressly warrants and guarantees to Buyer for the Warranty Period specified herein that all Equipment sold by Seller hereunder (a) will be of good quality and workmanship and free from defects, latent or patent, in materials and workmanship under normal operating conditions and proper application in accordance with specifications for operations as described in the Seller's Quotation, (b) will be manufactured utilizing new materials, unless otherwise specified or agreed by Buyer, and (c) will be free of all liens and encumbrances and claims of title of third parties. Third-party supplied hardware/software is warranted only to the extent of the stated warranty by the original manufacturer. Seller does not warrant the compatibility of its Equipment with the goods of other manufacturers or Buyer's application except to the extent expressly represented in Seller's published specifications or written quotation. THE FOREGOING WARRANTY IS EXPRESSLY IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR INTENDED USE.

6.2 System Warranty Services. Seller expressly warrants and guarantees to Buyer that all Services performed by Seller hereunder (a) will be performed in a good and workmanlike manner by qualified persons selected and paid by Seller, (b) will be performed in accordance with generally accepted professional standards and practices and in a manner consistent with the manner in which such Services are customarily performed by experienced and competent persons rendering the same or similar Services with regard to projects of similar size, cost, and complexity, and (c) will conform to the requirements of this Agreement, applicable Plans and Specifications, and applicable federal and state statutes, codes, and regulations.

6.3 Plans and Specifications. Seller shall prepare and submit to Buyer Plans and Specifications, operating and maintenance manuals, if and as specified in Seller's Quotation. Buyer or Buyer's representatives review of Plans and Specifications or other data developed by Seller in connection with this Agreement and suggestions or comments to, or approval of such Plans and Specifications or other data, relieves Seller of any responsibility for any implied warranty hereunder as to the reliability, quality, rate of output, cost, delivery, or performance of the Items or any other requirements of this Agreement.

6.4 Repair or Replacement of Non-Conforming Equipment or Services. During the warranty period, Buyer's sole and exclusive remedy under the warranty shall be limited to the repair or replacement of warranted Equipment or Services, location to be at Seller's option. In the event Seller elects to repair such Equipment or Services, Buyer will, at its cost, provide Seller with unobstructed access to the Equipment, adequate space in the immediate vicinity of the Equipment, and such facilities and systems, including, without limitation, forklifts, cranes and other equipment, as well as utility connects and disconnects, as may be necessary to facilitate performance by Seller of its obligations under the warranty. At Seller's option, any such non-conforming Equipment may be returned by Buyer, at Buyer's expense, to Seller's factory or authorized factory service center, or repaired in place at Buyer's facility. Seller shall not be responsible for any charges for labor and/or parts incidental to the removal and re-installation/ remounting of Equipment repaired or replaced under this warranty.

6.5 Incidental and Consequential Damages. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEM-PLARY, PUNITIVE, INDIRECT OR OTHER SIMILAR-TYPE DAMAGES, OR FOR CONTINGENT LIABILITIES INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, INCOME OR PROFITS, DOWNTIME COSTS, OR OTHER COMMERCIAL LOSS RESULTING FROM NON-CONFORMING EQUIPMENT OR SERVICES. SELLER'S LIABILITY ON ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH OR RESULTING FROM THIS AGREEMENT, OR FROM PERFORMANCE OR BREACH THEREOF, SHALL, IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE EQUIPMENT OR THE SERVICES, OR ANY UNIT THEREOF WHICH GIVES RISE TO THE CLAIM. SELLER SHALL NOT IN ANY CASE BE LIABLE FOR PENALTIES OF ANY KIND OR DESCRIPTION.

6.6 Warranty Period. Seller's Warranty Period is the earlier of (a) eighteen (18) months after shipment by Seller, or (b) twelve (12) months after the Equipment is placed in service, whichever occurs first. The warranty period shall not be extended or otherwise modified as a result of the repair or replacement of any non-conforming Equipment or its components. Buyer-supplied and/or Buyer-specified (or Buyer's customer-supplied and/or Buyer's customer-specified) items on systems, assemblies or power units are warranted per original manufacturer's warranty policy only. Seller's Warranty period for Services is for a period of ninety (90) days after the date the work is supplied.

6.7 Warranty Processing Procedures. No products shall be returned without prior authorization from Seller. Buyer shall prepay all transportation charges for the return of such products to Seller's factory or authorized factory service center. Seller will not accept any charges for labor and/or parts incidental to the removal and remounting of products repaired or replaced under this warranty. All repair and replacement parts provided under this warranty will assume the identity, for warranty purposes, of the part replaced and the warranty on such replacement parts will expire when the warranty on the original part would have expired. Claims must be submitted within 30 days of failure or be subject to rejection. This warranty is not transferable beyond the first using Buyer.

6.8 Exclusions. The foregoing warranty does not cover conditions over which Seller has no control, including, without limitation, contamination, incorrect power supply, pressures in excess of recommended maximum, products damaged or subjected to voltage, humidity, or temperature outside of specified range, accident, abuse or misuse after shipment from Seller's factory, products altered, disassembled or repaired by anyone other than Seller's personnel, Seller authorized factory service center personnel or persons so designated in writing by Seller's Service Department prior to commencement of said work. Types of failures which are not attributable to defects in materials and/or workmanship and which are not considered by Seller as part of its warranty include, but are not limited to the following conditions caused by anyone other than Seller:

  • Damages due to deterioration during periods of storage by the Buyer prior to installation and operation.
  • Damage of any kind from erosive or corrosive action of any gases or liquids handled by the machinery.
  • Lack of or incorrect type of fluid, lubricants, air line additives.
  • Contamination of the fluid, lubricants, air line additives, or oil systems.
  • Damage attributable to accident, abuse, neglect.
  • Operating beyond the recommended maximum speeds, pressure, temperatures, voltage or humidity or below the recommended voltage.
  • Improper filtration.
  • Repairs by unauthorized service personnel.
  • Use of the product in a manner or purpose for which it was not designed or intended by Seller.
  • Misalignment, mis-wiring, high vibration.
  • Ordinary wear and tear.

Whenever possible, each provision of the foregoing warranty shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this warranty shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity without invalidating the remainder of such provision or the remaining provisions of this warranty.

7. Intellectual Property

7.1 Seller warrants that the Equipment shall not infringe any patent. If Buyer provides timely notice, information and assistance, Seller shall indemnify and defend Buyer from and against any claimed infringement, which would constitute a breach of this warranty. In the event the Equipment are found to infringe any U.S. patent, Seller shall at its option procure for Buyer the right to continue use, replace the Equipment with non-infringing goods, modify the Equipment so that they are non-infringing or upon return of the Equipment to Seller, refund the purchase price less reasonable depreciation. Seller grants no license, express or implied, other than the right of Buyer to use the Equipment.

7.2 Seller makes no warranty with respect to and shall not be liable for, any infringement relating to or arising out of:

  1. Equipment manufactured to Buyer's design or specifications, or
  2. use of the Equipment in conjunction with any other product not furnished by Seller or in a combination not furnished by Seller. With respect to any claimed infringements arising out of circum-stances described in this sub-Section Buyer shall indemnify and defend Seller against any and all loss, damage, costs and expenses including reasonable attorney fees.

7.3 Seller owns the exclusive copyright to any and all computer software to be transmitted as part of the Equipment. Seller, upon delivering the software to Buyer, grants Buyer a limited, non-exclusive license to use the software and related documents in Buyer's facilities only. Buyer shall obtain no title, ownership nor any other rights in and to the software related documentation nor in the algorithms, concepts, design and ideas request by or incorporated in the software and related documentation. Buyer shall not, except for a back-file copy, copy or reproduce, or permit to be copied or reproduced the software or related documentation for any purpose. Buyer shall not modify, or attempt to modify, the software, nor shall allow the software to be used on any equipment except that supplied by Seller as part of the Purchase Order, or for the Equipment for which the software is purchased. Buyer will not transfer the software to any other person, except as agreed to, in wring, by Seller. Buyer may not remove any copyright, trademark or other notice or product identification from the software and must reproduce and include any such notice or product identification on any back-up made of the software.

8. Confidentiality

8.1 Disclosure and Use of Confidential Information. Seller and Buyer will hold all Confidential Information provided to each of them by the other party or pro-cured or developed utilizing Confidential Information obtained by working at or about the other party's facilities in confidence and shall not disclose such Confidential Information to (a) any employee, agent or contractor of such receiving party not necessary to complete performance under this Agreement or (b) to any other third party. Seller and Buyer shall use the Confidential Information obtained from the other party solely for the purposes of completing performance under this Agreement.

8.2 Exceptions Regarding Confidentiality. The provisions of sub-Section 8.1 shall not apply to any Confidential Information which (a) was in the possession of the receiving party prior to the date of this Agreement as evidenced by written documentation in such party's possession, (b) through no act or omission on the part of the receiving party is or becomes part of the public knowledge or literature, or (c) is independently arrived at without reference to the Confidential Information.

8.3 Return of Confidential Information. All Confidential Information, shall be returned to Buyer or Seller, as the case may be, promptly upon written request therefore, provided, that Seller shall have the right to retain a copy of the final "as built" drawings for the purpose of assisting Seller with any after-sale warranty or service work it may be called upon to perform. Such request may be made at any time during or within six (6) months after completion of Seller's performance hereunder.

8.4 Notice of Compelled Disclosure. In the event that Seller or Buyer is requested pursuant to or required by applicable law or regulation or compelled by legal process to disclose any Confidential Information, such party will immediately provide the other with telephonic and written notice thereof and fully cooperate with and assist in obtaining a protective order to either prevent such disclosure or permit such disclosure only upon such terms and conditions regarding the confidentiality thereof as is acceptable to the owner of such Confidential Information.

8.5 Survival of Obligations. The obligations of Seller and Buyer under Section 8 shall be in force for a period of two (2) years after the date of this Agreement and will survive the cancellation, termination or completion of this Agreement.

9. Activities on the End-User Premises

9.1 Indemnity. Seller shall indemnify, hold harmless and defend Buyer including its agents and employees from and against all claims, damages, losses, and expenses (excluding attorneys' fees) arising out of or resulting from the performance of the work or services, provided that any such claim, damage, loss, or expense (a) is attributable to bodily injury, sickness, disease, or death, and (b) is caused in whole by any intentional or negligent act or omission of the Seller, or its employees, agents or contractors, and (c) is not caused by any intentional or negligent act or omission of Buyer, or its employees, agents or contractors. In any and all claims against any indemnified party by any employee of the Seller or any one acting on behalf of the Seller, the indemnification obligation under this sub-Section shall be limited by any limitation on the amount or type of damages, compensation, or benefits payable by or for the Seller or anyone acting on behalf of the Seller under worker's compensation acts, disability benefit acts, or other employee benefit acts.

9.2 Insurance. Seller shall carry and maintain during performance of Work or services contracted under any purchase order, the following insurance with minimum limits as reasonably specified by Buyer:

(a) Worker's compensation insurance in accordance with statutory requirements and employer's liability insurance in accordance with statutory requirements.

(b) Commercial general liability insurance covering bodily injury and property damage, including products and completed operations coverage with a minimum per occurrence and in the aggregate.

(c) Automobile liability insurance covering bodily injury and property damage including coverage for owned, hired, and non-owned automobiles with a minimum combined single limit. Each party shall furnish the other party certificates showing that such insurance is in full force and effect prior to commencing the performance of work or services contracted under any Purchase Order from Buyer, and each Party shall provide the other Party with written notice within a reasonable time after receipt by such Party of notice from its insurer that any coverage required hereunder is being canceled or materially modified. All such insurance shall be endorsed to provide contractual liability.

(d) The sufficiency of Seller's insurance coverages shall be deemed to be accepted by Buyer at such time as Buyer initiates payment to Seller, and Buyer shall be deemed to have waived any claims against Seller related to Seller's obligation to obtain insurance compliant with the contract.

9.3 Buyer's All Risk Insurance. Seller shall provide reasonable protection for its job site material and work, but shall be liable for losses only to the extent caused by Seller's negligence. It is understood and agreed to that Buyer's all-risk insurance (or that of the property owner where the Equipment is located) includes coverage for the full value of loss or damage to Seller's work in place, for its stored material, and for its material in transit.

9.4 Additional Insureds. Seller will not be required to add additional insureds to any insurance policy, nor to waive subrogation for claims covered by workers' compensation or commercial general liability insurance. Seller shall maintain insurance with coverage and limits only as provided by Seller's existing insurance program evidenced by its certificate of insurance available on request.

9.5 Temporary Site Facilities. Except as specifically required by the Work and specifications included in this bid proposal, Buyer shall furnish all temporary site facilities, including but not limited to site access, storage space, hoisting facilities, guard rails, covers for floor, roof and wall openings, security, parking, safety orientation, break and lunch facilities, toilet and wash facilities, drinking water and other water facilities, electrical service, telecommunication ser-vice, lighting, heat, ventilation, weather protection, fire protection, and trash and recycling services.

9.6 Damage by Other Parties. Seller is not responsible for damage to its Work by other parties, and any repair work necessitated by such damage is extra work. All materials shall be furnished in accordance with the respective industry tolerance of color variation, thickness, size, finish, texture and performance standards. All warranty claims for Seller's work must be received by Seller within the warranty period, and Seller must be provided a reasonable opportunity to inspect and make corrections, or such warranty claims are barred.

9.7 Documents, Materials, Work, Etc. of Third Parties. Seller's obligation to examine documents, the project site, and materials and work furnished by others is limited to notification to Buyer of any defects or deficiencies that a person in the trade of Seller would discover by reasonable visual inspection. No testing beyond reasonable visual inspection shall be required. Seller is entitled to rely on the accuracy and completeness of plans, specifications, and reports of site conditions provided to Seller. Any design services provided by Seller will be reviewed by Designer to assure acceptability when integrated with the entire work. Buyer is entitled to rely on the accuracy and completeness of design services or certifications provided by Seller only to the extent that design responsibility is specifically delegated to Seller by agreement in writing and all design and performance criteria are furnished to Seller.

9.8 Backcharge Claims. No backcharge or claim of Buyer for services shall be valid except by an agreement in writing by Seller before the work is executed. In the event of Seller's failure to meet any requirement of this Agreement, Buyer shall notify Seller of such default, in writing, and allow Seller reasonable time to correct any deficiency before incurring any costs chargeable to Seller. No backcharge shall be valid unless agreed upon in writing and billing is rendered no later than the 15th day of the month following the charge being incurred. Furthermore, any payments withheld under a claim of Seller default shall be reasonably calculated to cover the anticipated liability and all remaining payment amounts not in dispute shall be promptly paid.

9.9 Closeout Documentation. Buyer will not require any contract closeout procedures or any forms that have not been provided to and specifically accepted in writing by Seller prior to signature of the Agreement.

10. Compliance with Laws

10.1 Governmental Authorizations, Approvals, Permits and Licenses. Unless otherwise agreed, Buyer shall apply for, pay for and obtain on a timely basis all federal, state, local and municipal authorizations, approvals, permits and licenses which may be required in connection with the installation and operation of the Equipment. Buyer and Seller will assist each other in every manner reasonably possible in securing such authorizations, approvals, permits and licenses.

10.2 Government Procurement Laws and Regulations. If the Items provided are purchased under a government contract or sub-contract, Buyer shall promptly notify Seller (prior to Seller's Quotation) of the provisions of any government procurement laws and regulations. To the fullest extent permitted by law, Buyer agrees to indemnify Seller and hold Seller harmless from any and all associated costs incurred by Seller, and any and all penalties imposed upon Seller in order for Seller to comply with government flow-down provisions. Items sold or licensed hereunder are not intended to be used, nor should they be used, in any nuclear-related application either as a "Basic Component" as defined under United States nuclear regulations or under similar nuclear laws and regulations of any other country or otherwise.

10.3 Anti-Corruption Practices. Buyer shall not, nor any of its respective equity holders, affiliates, beneficial owners, partners, officers, directors, employees or agents, in connection with the sale or purchase of the Equipment hereunder, directly or indirectly, offer, pay, promise to pay, or authorize the payment of any money, or offer, give, promise to give, or authorize the giving of anything of value to (i) any official or employee of any government, or any department, agency, or instrumentality thereof in the United States or any foreign country, (ii) any political party or official thereof, or to any candidate for foreign political office in the United Stated or any foreign country, or (iv) any official or employee of any public international organization, in each case for the purpose of influencing any act or decision of such official, employee, party or candidate or inducing such official, employee, party or candidate to do or omit to do any act in violation of the lawful duty of such official, employee, party or candidate, or securing any improper advantage for Buyer or otherwise promoting the business interests of Buyer in any respect

10.4 Export Controls.

10.4.1 Equipment and associated materials supplied or licensed hereunder may be subject to various export laws and regulations. It is the responsibility of the exporter to comply with all such laws and regulations. Notwithstanding any other provision herein to the contrary, in the event that U.S. or local law requires export authorization for the export or re-export of any Equipment or associated technology, no delivery can be made until such export authorization is obtained, regardless of any otherwise promised delivery date. In the event that any required export authorization is denied, Seller will be relieved of any further obligation relative to the sale and/or license and delivery of the Equipment(s) subject to such denial without liability of any kind relative to Buyer or any other party. Seller will not comply with boycott related requests except to the extent permitted by U.S. law and then only at Seller's discretion.

10.4.2 Buyer further certifies that the Items: (a) are not intended to be used for any purpose prohibited by the Regulations, including, without limitation, terrorism, nuclear related activities or chemical/ biological weapons or missiles; (b) are not intended to be released, shipped or re-exported, either directly or indirectly, to any other destination to which the United States has embargoes, restrictions, prohibited exports and/or re-exports of Items to countries as designated in the Regulations, and (c) are not intended to be released, shipped or re- exported, either directly or indirectly, to any persons identified on any sanctioned parties lists published by a US Government Agency, including but not limited to, the lists published by the U.S. Department of Commerce, Bureau of Industry and Security; US Department of Treasury, OFAC and US State Department.

11. Miscellaneous

11.1 Notices. All written notices, requests, demands, consents, certificates or other communications required or permitted to be given hereunder shall be sufficiently given when mailed by (a) certified mail, return receipt requested, postage prepaid, (b) commercial overnight delivery courier, fees prepaid, or (c) e-mail and/or facsimile transmission, addressed to Buyer or Seller, as the case may be, at their respective addresses set forth on the first page of this Agreement and below. Either party may, by like notice at any time and from time to time, designate a different address to which notices shall be sent.

11.2 Assignment. The Agreement evidenced hereby may not be assigned by either party without the written consent of the other (which consent will not be unreasonably withheld). However, consent will not be required for internal transfers and assignments as between Seller and its parent company, subsidiaries or affiliates as part of a consolidation, merger or any other form of corporate reorganization.

11.3 Waiver. The waiver by Seller of any term, provision, or condition hereunder must be in writing and shall not be construed to be a waiver of any other term, condition, or provision hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same condition or provision on this order or on future orders.

12. Dispute Resolution

12.1 Settlement of Disputes. The parties will attempt in good faith promptly to resolve any dispute arising hereunder by negotiations between representatives of the parties who have authority to settle the dispute. If unsuccessful, the parties further will attempt in good faith to settle the dispute by non-binding third-party mediation, with mediator fees and expenses apportioned equally to each side. Any dispute not so resolved by negotiation or mediation may then be submitted to and be resolved by in accordance with the Commercial Arbitration Rules of the American Arbitration Association, as from time to time amended and in effect. Any litigation or arbitration arising out of this Agreement shall be brought, maintained and administered in Harris County, Texas. ANY CONTROVERSY, DISPUTE, OR CLAIM THAT PURCHASER MAY HAVE AGAINST SELLER MUST BE INITIATED NO LATER THAN ONE (1) YEAR AFTER THE CLAIM ORIGINATED.

12.2 Governing Law and Jurisdiction. This Agreement is made in and shall be governed by the laws of the State of Texas, without giving effect to the conflict of laws provisions of the laws of the State of Texas.