Terms and Conditions for Sales of Products and services

(Revision Octorber 06, 2022)

 

 

1. General

Order confirmations and invoices provided by United NDT GmbH (Seller) are referring to this general terms and conditions.

Sale of any Products or Services is expressly conditioned on Buyer’s assent to these Terms and Conditions. Any additional or different terms proposed by Buyer are expressly objected to and will not be binding upon Seller unless agreed to in writing by Seller; provided however, that no pre-printed facility entry form shall modify these Terms and Conditions even if signed by Seller’s representative. Any oral or written representation, warranty, course of dealing or trade usage not contained in these Terms and Conditions or the Contract shall not be binding on either party. Any order to perform work and Seller’s performance of work shall constitute Buyer’s assent to these Terms and Conditions.

For the terms and conditions stated herein,   German law applies.

All products and services purchased by the buyer, whether electronically, by phone or in writing, are sold based on this terms and conditions stated herein.

 

 

2. Services and products

Products are the described items listed in the order confirmation or packing list. In case the described items are not in line with customer’s order, the buyer has to inform the seller in writing within 5 days after receipt of the order confirmation. The term “services” is to be understood as a part (category) of the term “products”.  

Products provided on loan or on rental are not covered by this terms and conditions as there are covered by special agreements.

 

 

3. Prices

All prices are listed in the order confirmation and they are to be understood as seller’s net prices FCA without value added tax, ex stock or ex Manufacturers factory.

Except as otherwise agreed to by Seller in writing, and upon approved credit, the buyer shall pay Seller all invoiced amounts in Euro, within 30 days from date of invoice.

The seller’s invoice will be processed without VAT, provided the buyer has informed the seller about his EU Tax number or an official document stating that the buyer is exempted from VAT or customs duty. For deliveries outside of the European community or deliveries within another country of the EU, the buyer has to provide, free of charge, the respective export certificate.  In this certificate the invoice number of the seller must be shown. In case the responsible customs office does not accept the document, the seller is entitled to invoice the buyer for the respective amount on tax payable. This also includes any penalty payments or other related expenses.

The buyer has to pay the invoice in accordance with this terms and conditions stated herein.

The buyer has to take notice about all information provided by the seller regarding VAT payments.

The buyer has no right to balance the invoiced amount with any other open payment he is entitled to receive from the seller. The seller has the right to receive the full payment.

In case of non-payment within the timeframe as per the these terms or as per separate agreement, the buyer agrees to bear all the cost related to debt collection and to pay the seller an interest rate, 2.5 % interest above the current bank rates for the past-due  amount.

If, at any time, Seller reasonably determines Buyer’s financial condition does not justify the continuation of Seller’s performance, Seller may require full or partial payment in advance or may suspend or terminate the Contract.

Unless otherwise specified in the Contract, Seller shall be responsible for and pay directly, all corporate and individual taxes measured by net income or profit imposed by any governmental authority on Seller, its employees or subcontractors due to the execution of any agreement or the performance of or payment for work hereunder (“Seller Taxes”).

Buyer shall be responsible for and pay directly when due and payable all taxes, duties, fees or other charges of any nature (including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts, import, license, property, sales, stamp, storage, transfer, turnover, use or value-added taxes and any and all items of withholding, deficiency, penalty, addition to tax, interest or assessment related thereto), other than Seller Taxes, imposed by any governmental authority on Seller or its employees or subcontractors due to the execution of any agreement or the performance of or payment for work hereunder (“Buyer Taxes”). All payments due and payable by Buyer to Seller hereunder shall be made in the full amount of the Contract price, free and clear of all deductions and withholding for Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts to Seller to cause the amounts Seller actually receives, net of deducted or withheld Buyer Taxes, to equal the full Contract price. Buyer shall provide to Seller within one month accurate official receipts from the appropriate governmental authority for deducted or withheld taxes.

 

 

4. Delivery

Seller shall deliver Products to Buyer FCA Port of Export (as per valid Incoterms). Buyer shall pay all delivery costs and charges. Seller shall not be liable in any claim asserted by Buyer with respect to delivery.

Partial deliveries will be permitted. If Products delivered do not correspond in quantity, type or price to those itemized in the invoice for the shipment, Buyer will so notify Seller within 10 days after receipt. Seller may deliver any or all Products in advance of the delivery schedule.

Delivery times are approximate and are dependent upon prompt receipt by Seller of all materials and information necessary to proceed with the work without interruption.

Title to Products shipped from within the country where Products will be received shall pass to Buyer when Products are made available for shipment from the manufacturer’s factory or the storage facility utilized by Seller. Title to Products shipped directly from a European Union (“EU”) manufacturer or a EU storage facility outside the country where the Product will be received shall pass to Buyer the earlier of (i) port of export immediately after the Products have been cleared for export or (ii) immediately after each item departs from the territorial land, seas and overlying airspace of the EU sending country. Title to Products to be shipped from any other country shall pass to Buyer at the port of export immediately after the Products have been cleared for export. Title to Services shall pass to Buyer as performed. Notwithstanding the foregoing, for any software provided by Seller hereunder, only the license to the software transfers as set forth herein, and title to Leased Equipment shall remain at all times with Seller.

Notwithstanding above, in all events risk of loss shall transfer to Buyer upon title passage. No formal acceptance document is required for the transfer of title or risk of loss to Products.

If any Products cannot be shipped to or received by Buyer when ready due to any cause not attributable to Seller, Seller will notify Buyer and then may ship Products to a storage facility, including a facility within the place of manufacture or to an agreed freight forwarder. If Seller places Products in storage or if Products are detained at any port, the following conditions shall apply:

(i) title and all risk of loss or damage shall immediately pass to Buyer if they had not already passed;

(ii) amounts otherwise payable to Seller upon delivery or shipment shall be payable upon presentation of Seller’s invoices;

(iii) all expenses and charges incurred by Seller, such as for preparation for and placement into storage, handling, inspection, preservation, insurance, storage, demurrage, removal and any taxes shall be payable by Buyer upon submission of Seller’s invoices; and

(iv) when conditions permit and upon payment of all amounts due hereunder, Seller shall resume delivery of Products to the originally agreed point of delivery.

Buyer shall bear the sole risk of loss for Buyer’s equipment during the term of the Contract, whether at the Site, the Seller’s facility or in transit from the Seller’s facility. If repair Services are to be performed on Buyer’s equipment at Seller’s facility, Buyer shall be responsible for transporting the equipment to and from Seller’s facility. Buyer shall reimburse Seller at Seller’s then current storage rate if the equipment remains at Seller’s facility beyond 10 days after notification that the Services have been completed.

Excusable Delays. Seller shall not be liable nor in breach or default of its obligations under the Contract to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond its reasonable control, including, but not limited to, acts of God, fire, terrorism, war (declared or undeclared), epidemics, material shortages, insurrection, acts (or omissions) of Buyer or Buyer’s suppliers or agents, any act (or omission) by any governmental authority, strikes, labor disputes, transportation shortages or vendor non-performance. The delivery or performance date shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If Seller is delayed by any acts (or omissions) of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, Seller shall be entitled to an equitable price and performance adjustment.

Compliance with Laws, Codes and Standards.  Seller represents that the Products will be produced in compliance with applicable fair labor standards laws, occupational safety and health laws and laws related to non-segregation and equal employment opportunity.

The Contract price, delivery and performance dates and any performance guarantees will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change in industry specifications, codes, standards, applicable laws or regulations.

Seller’s obligations are conditioned upon Buyer’s compliance with applicable trade control laws and regulations. Buyer shall not transship, re-export, divert or direct Products other than to the ultimate country of destination specified on Buyer’s order or declared as the country of ultimate destination on Seller’s invoice, except as permitted by applicable laws.

Notwithstanding any other provisions, Buyer shall timely obtain any required authorization, such as an export license, import license, foreign exchange permit, work permit or any other governmental authorization, even if Seller applies for the authorization. Buyer shall be solely responsible for obtaining, maintaining and/or effectuating any governmental authorizations or notifications, if any, required for the lawful performance of the Services at the Site. Delays in obtaining the export license shall extend the time for delivery accordingly.

 

 

5. Warranty

Unless a product-specific warranty is provided to Buyer, Seller warrants to Buyer that (i) the Products shall be shipped free from defects in material, workmanship and title and (ii) the Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. Unless Seller expressly agrees otherwise in writing, any items not manufactured by Seller (including incidental materials and consumables used in the Services) shall carry only the warranty that the original manufacturers provide, and Seller gives no warranty on behalf of the manufacturers of such items.

Furthermore, used Products other than Refurbished Parts shall be sold “as is.”

Unless otherwise stated in the Contract, the warranty period for Products shall be one year from delivery, except that consumables including probes and cables are warranted for 90 days from delivery. Unless otherwise stated in the Contract, the warranty period for Services (other than Training Services) and repair Services shall be 90 days from completion. Training Services are provided AS IS.

If Products or Services do not meet the above warranties, Buyer shall promptly notify Seller in writing within the warranty period. Seller shall thereupon, at Seller’s option, repair or replace the defective Products or re-perform the defective Services.

If in Seller’s reasonable judgment a Product cannot be repaired or replaced or the Services cannot be re-performed, Seller shall refund or credit monies paid by Buyer for that portion of Products or Services that do not meet the above warranties. No repair, replacement or re-performance by Seller hereunder shall extend the applicable warranty period. The parties shall mutually agree on the specifications of any test to determine the presence of a defect.

Buyer shall bear costs of access (including removal/replacement of systems, structures or other parts of Buyer’s facility), de-installation, decontamination, re-installation and transportation of Products to Seller and back to Buyer.

These warranties and remedies are conditioned upon (a) the proper storage, installation, operation and maintenance of the Products and conformance with the proper operation instruction manuals provided by Seller or its suppliers or subcontractors, (b) Buyer keeping proper records of operation and maintenance during the warranty period and providing Seller access to those records and (c) modification or repair of the Products or Services only as authorized by Seller. Seller does not warrant the Products or any repaired or replacement parts against normal wear and tear or damage caused by misuse, accident or use against the advice of Seller. Any modification or repair of any of the Products or Services not authorized by Seller shall render the warranty null and void.

This Article provides the exclusive remedies for all claims based on failure of or defect in Products or Services, whenever the failure or defect arises and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Article are exclusive and in lieu of all other warranties and guarantees whether written, oral, implied or statutory. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.

 

 

6. Limitation of Liability

The total liability of Seller for all claims arising out of or relating to the performance or breach of the Contract or use of any Products or Services or any order shall not exceed (a) the Contract price or (b) if this Contract is a frame or master agreement under which Buyer places an order with Seller for the Products and Services to be purchased, (i) the final price of the particular order under which the specific Products or Services giving rise to the claim are supplied or performed or (ii) US$10,000 if the claim is not part of any particular order. Seller’s liability shall terminate upon the expiration of the applicable warranty period, provided that Buyer may enforce a claim that accrued prior to that date by commencing an action or filing an arbitration, as applicable under the dispute resolution clause, before the expiration of the applicable statute of limitations or repose, but not later than one year after the expiration of such warranty period.

Seller shall not be liable for loss of profit or revenues, loss of product, loss of use of Products or Services or any associated equipment, interruption of business, cost of capital, cost of cover, downtime costs, increased operating costs, failure to detect any flaw in the subject matter of a test, loss of goodwill, lost opportunities, claims of Buyer’s customers for such damages, or for any special, consequential, incidental, indirect, punitive or exemplary damages.

If Buyer is supplying Seller’s Products or Services to a third party, Buyer shall require the third party to agree to be bound by this Article. If Buyer does not obtain this agreement for Seller’s benefit, Buyer shall indemnify, defend and hold Seller harmless from and against any and all claims made by the third party in excess of the limitations and exclusions of this Article.

Seller shall not be liable for any advice or assistance not required hereunder.

For the purposes of this Article, the term “Seller” shall mean Seller, its affiliates, subcontractors and suppliers of any tier, and their agents and employees, individually or collectively.

The limitations and exclusions in this Article shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extrac-ontractual liability (including negligence), strict liability or otherwise.

Buyer’s and Seller’s rights, obligations and remedies arising out of or relating to the Products or Services are limited to those rights, obligations and remedies described in this Contract. This Article shall prevail over any conflicting or inconsistent terms in the Contract, except to the extent that such terms further restrict Seller’s liability.

 

 

7. Dispute Resolution

Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, shall be resolved in accordance with this paragraph and will be settled, if possible, by negotiation of the parties. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management of each party, to be held within 20 business days after giving notice. If the dispute is not resolved within 30 business days after the date of the meeting of higher management, or any later date to which the parties may agree, either party may submit to arbitration or court depending on Buyer’s pertinent place of business, as follows:

The dispute shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA”) Rules, which are incorporated by reference into this Article. The number of arbitrators shall be one unless the amount in dispute exceeds the equivalent of U.S. $1,000,000, in which event it shall be three. When three arbitrators are involved, each party shall appoint one arbitrator, and those two shall appoint the third within 30 days, who shall be the Chairman. The single arbitrator or the Chairman may not be a national or resident of the country of the Site or the countries in which either party is organized or has its principal place of business, unless both parties otherwise agree. The seat, or legal place, of arbitration shall be London, England. The arbitration shall be conducted in English. In reaching their decision, the arbitrators shall give full force and effect to the intent of the parties as expressed in the Contract, and if a solution is not found in the Contract, shall apply the governing law of the Contract. The decision of the arbitrator shall be final and binding upon both parties, and neither party shall seek recourse to a law court or other authority to appeal for revisions of the decision.

Notwithstanding the terms above, each party has the right at any time, at its option and where legally available, to commence proceedings, in a court of competent jurisdiction, to apply for interim or conservatory measures only.

The validity, performance and all matters relating to the interpretation and effect of the Contract and all further documents executed pursuant to it shall be construed and interpreted in accordance with the laws, excluding the rules on the conflict or choice of laws, of England and Wales.

In no event shall the United Nations Convention on Contracts for the International Sale of Goods apply.

 

 

8. Confidentiality

In connection with the Contract, Seller and Buyer (as to information disclosed, “Disclosing Party”) may each provide the other party (as to information received, “Receiving Party”) with Confidential Information. “Confidential Information” means (a) all pricing for Products and Services, (b) all terms of the Contract, (c) all information that is designated in writing as “confidential” or “proprietary” by Disclosing Party at the time of written disclosure and (d) all information that is orally designated as “confidential” or “proprietary” by Disclosing Party at the time of oral disclosure and is confirmed to be “confidential” or “proprietary” in writing within 10 days after oral disclosure. The obligations of this Article shall not apply as to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than from disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party or its representatives or affiliates on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party’s knowledge, subject to a confidentiality obligation to Disclosing Party; (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law, a valid legal process or a government agency; or (v) is approved for disclosure in writing by an authorized representative of Disclosing Party.

Receiving Party agrees: (i) to use the Confidential Information only in connection with the Contract and permitted use(s) and maintenance of Products and Services, (ii) to take reasonable measures to prevent disclosure of the Confidential Information, except to its employees, agents or financing parties who have a need to know for Buyer to perform its obligations under the Contract or to use and maintain Products or Services and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party. Confidential Information shall not be reproduced without Disclosing Party’s written consent, and Receiving Party shall return all copies of Confidential Information to Disclosing Party upon request except to the extent that the Contract entitles Receiving Party to retain the Confidential Information. Seller may also retain one copy of Buyer’s Confidential Information until all its potential liability under the Contract terminates.

If either party or any of its affiliates or representatives is required by law, legal process or a government agency to disclose any Confidential Information, that party agrees to provide Disclosing Party with prompt written notice to permit Disclosing Party to seek an appropriate protective order or agency decision or to waive compliance by Receiving Party with the provisions of this Article. In the event that efforts to secure confidential treatment are unsuccessful, Seller may lawfully revise the Confidential Information to make it nonproprietary or to minimize the loss of its proprietary value.

Nothing in this Article grants Receiving Party any license under any invention, patent, trademark or copyright now or later owned or controlled by Disclosing Party.

Buyer shall not disclose Confidential Information to Seller unless it is required to do so to enable Seller to perform work under the Contract. If Buyer does disclose Confidential Information, Buyer warrants that it has the right to disclose the information, and Buyer shall indemnify and hold Seller harmless against any claims or damages resulting from improper disclosure by Buyer.

As to any individual item of Confidential Information, the restrictions of this Article shall expire the earlier of five (5) years after the date of disclosure or three (3) years after termination or expiration of the Contract.

This Article does not supersede any separate confidentiality or nondisclosure agreement  signed by the parties.

 

 

9. Health and Safety Matters

Buyer shall take all necessary precautions, at all times, for the health and safety of Seller personnel at the Site. These include, but are not limited to: providing to Seller for review, and instructing Seller’s personnel regarding, Buyer’s safety practices; proper and safe handling of, and protection of Seller’s personnel from exposure to, Hazardous Materials; energization and de-energization of all power systems (electrical, mechanical and hydraulic) using safe and effective lock-out/tag-out procedures; and conducting periodic safety meetings.

Seller may, from time to time, conduct safety audits to ensure the existence of safe site and working conditions and make recommendations to Buyer concerning them. Whether or not Seller conducts safety audits or makes recommendations, Buyer will remain responsible for providing a work environment that is safe and that complies with all applicable legal requirements.

Buyer will make its local medical facilities and resources available to Seller personnel who need medical attention, for the duration of their needs. Under no circumstance will Seller personnel be required to work more than any maximum time periods allowed by applicable law.

If, in Seller’s reasonable opinion, the safe execution of the Contract at the Site is, or is apt to be, imperiled by security concerns, local conditions, war (declared or undeclared), armed conflict or threatened conflict, civil unrest, terrorist acts or threats, threat to safety or well-being of the Site or personnel or Seller’s persons or interests, the presence of or threat of exposure to Hazardous Materials or unsafe working conditions, Seller may, in addition to other rights or remedies available to it, evacuate some or all of its personnel from the Site, suspend performance of all or any part of the Contract and/or transfer such performance and supervise it at a location solely determined by Seller. Buyer shall assist in any evacuation. Any delay that results shall be considered excusable.

Before issuing its purchase order, Buyer shall advise Seller in writing of all applicable Site-specific rules, regulations, safety codes and laws that apply to Products and Services.

Operation of Buyer’s equipment is the responsibility of Buyer. If Buyer requires or permits Seller’s personnel to operate Buyer’s equipment at the Site, Buyer shall indemnify and save Seller, its employees and agents, harmless from expense and liability (including reasonable attorneys’ fees) incurred by or imposed upon Seller, its employees and agents, based upon exposure to Hazardous Materials, injury to persons (including death) or damage to property resulting from operation of equipment at the Site by Seller personnel. Buyer shall not require Seller personnel to work on other projects or equipment during the term of the Contract.

 

 

10. Site Access and Conditions; Hazardous Materials

Buyer shall provide Seller access to the Site and any other facilities free of charge, including the operating and development environment and information, as necessary for Seller’s performance of the Contract. Prior to Seller starting any work at the Site, Buyer will (i) provide documentation that identifies any existing Hazardous Materials on or about the Site and (ii) allow Seller, at its option, access to the Site to perform or have performed a Site evaluation, including without limitation, a review of applicable documents and visual examination of the Site.

Whether or not Seller conducts any evaluation, Seller will have no responsibility or liability for existing Site conditions.

Seller shall promptly, and, if feasible, before such conditions are disturbed, notify Buyer in writing of: (i) subsurface, latent physical or other conditions at the Site, including but not limited to Buyer’s health and safety requirements differing materially from those indicated in the Contract or otherwise disclosed by Buyer and (ii) previously unknown physical conditions at the Site, including archeological remains differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. Buyer shall promptly investigate those conditions. If it is determined that any conditions do materially differ and cause an increase in Seller’s cost of, or the time required for, performance of any part of the work under the Contract, the parties shall make an equitable adjustment in price and schedule and modify the Contract in writing accordingly.

If, at the Site, Seller encounters Hazardous Materials that require special handling or disposal, Buyer shall immediately take whatever precautions are required to eliminate legally the hazardous conditions so that the work under the Contract may safely proceed. Seller shall not be obligated to work until Buyer causes the hazardous conditions to be removed. If any such Hazardous Materials cause an increase in Seller’s cost of or time required for performance of any part of the work, the parties shall make an equitable adjustment to the price and schedule and modify the Contract in writing accordingly. Buyer agrees to properly store, transport and dispose of all Hazardous Materials introduced, produced or generated in the course of Seller’s work at the Site.

Buyer shall indemnify and hold Seller harmless for any and all claims, damages, losses, causes of action, demands, judgments and expenses arising out of or relating to any Hazardous Materials which are or were (i) present on or about the Site prior to the commencement of Seller’s work, (ii) improperly handled or disposed of by Buyer or Buyer’s employees, agents, contractors or subcontractors or (iii) brought, generated, produced or released on the Site by parties other than Seller.

 

11. Termination and Suspension

Buyer may terminate the Contract (or any portion thereof) for cause if Seller: (i) substantially breaches a material obligation which does not otherwise have a specified contractual remedy, provided that: (a) Buyer shall first provide Seller with detailed written notice of the breach and of Buyer’s intention to terminate the Contract and (b) Seller shall have failed, within 30 days after receipt of the notice (or such extended period as is considered reasonable by the parties), to either (1) commence and diligently pursue cure of the breach or (2) provide reasonable evidence that the breach has not occurred; or (ii) becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors or files for protection from creditors under any bankruptcy or insolvency laws. If Buyer terminates the Contract as provided in this Section: (a) Buyer shall pay to Seller all portions of the Contract price allocable to work performed (for example, the price for Products completed or partially completed before the termination), Lease Fees incurred and all Services performed at the Seller’s then-current standard time and material rates; and (b) Seller shall pay Buyer the difference between that portion of the Contract Price allocable to the terminated scope and the actual amounts reasonably paid by Buyer to another supplier for that scope.

13.2 Seller shall have the right to suspend or terminate the Contract (or any portion thereof) immediately for cause if: (i) Buyer becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws; (ii) there is an excusable delay (as per Section 5 above) lasting longer than 120 days; (iii) any representation or warranty made by Buyer herein or in any document or certificate furnished by Buyer in connection herewith proves to be incorrect in any material respect; or (iv) Buyer materially fails to comply with any terms of the Contract, including but not limited to, failure to make any payment when due or to fulfill any payment conditions.

If the Contract (or any portion thereof) is terminated for any reason other than those set forth above, Buyer shall pay Seller all portions of the Contract price allocated to all Products completed or partially completed, Lease Fees incurred and Services performed before the effective date of termination, plus a cancellation charge equal to 20% of the Contract price allocable to the uncompleted Products, unfinished Lease Term and unperformed Services. The following shall apply when determining the amount due from Buyer for Services performed before the date of termination: (i) for Services performed under time and material pricing, Buyer shall pay for all hours performed at Seller’s then-current standard time and material rates and (ii) for Services performed under a firm fixed price, Buyer shall pay (a) the applicable price for all milestones achieved and (b) for any milestone not yet achieved, all hours performed in connection with the unachieved milestone(s) at Seller’s then-current standard time and material rates.

Buyer shall pay any reasonable expenses incurred by Seller in connection with suspension or termination, including those for repossession, fee collection, demobilization/remobilization and storage costs during suspension. Performance of Seller’s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.

 

12. Intellectual Property; Indemnification

Subject to the Contract terms, Seller shall indemnify Buyer against any damages, costs and expenses arising out of any suit, claim or proceeding (a “Claim”) alleging that Products or Services infringe a patent in effect in the U.S., an EU member state or country of delivery (provided there is a corresponding patent issued by the U.S. or an EU member state) or U.S. copyright or copyright registered in the country of delivery; provided that:

(a) Buyer promptly notifies Seller in writing of any such Claim;

(b) Buyer makes no admission of liability and gives Seller sole authority, at Seller’s expense, to direct and control all defense, settlement and compromise negotiations; and (c) Buyer provides Seller with full disclosure and assistance that may be reasonably required to defend any such Claim.

Seller shall have no obligation or liability with respect to any Claim based upon:

(a) any Products or Services that have been altered, modified or revised;

(b) the combination, operation or use of any Products or Services with other products when such combination is part of any allegedly infringing process;

(c) failure of Buyer to implement any update provided by Seller that would have prevented the Claim;

(d) unauthorized use of Products or Services, including, without limitation, a breach of the provisions of the Contract or

(e) Products or Services made or performed to Buyer’s specifications.

Should any Product or Service, or any portion thereof, become subject to a Claim, Seller may at its option

(a) procure for Buyer the right to continue using the Product or Service, or portion thereof,

(b) modify or replace it in whole or in part to make it non-infringing or

(c) failing (a) or (b), take back Products or Services and refund any fees received by Seller attributable to the infringing Product or Service.

This states Seller’s entire liability for indemnification for patent, trademark, copyright and trade secret infringement for Products and Services.

Notwithstanding the foregoing, with respect to any Products or Services, or portions thereof, which are not manufactured or developed by Seller, only the indemnity of the manufacturer/developer, if any, shall apply.

Seller shall have all right, title and interest in and to all statutory and non-statutory intellectual property rights worldwide, which are available to protect discoveries, ideas, designs, inventions, improvements, processes, works of authorship (including software), trade secrets and other intellectual property of any kind including, without limitation, patents, copyrights, and all other rights available to protect trade secrets and confidential information, based in whole or in part on inventions, developments or improvements created, conceived or reduced to practice by or on behalf of Seller in connection with any Product sold hereunder. Customer’s employees will cooperate in the preparation of any application for intellectual property rights in the U.S. and other countries with respect to any invention, development or improvement.

 

13. Changes

Each party may at any time propose changes in the schedule or scope of Products or Services in the form of a draft change order. Some changes requested by Buyer may require analytical or investigative work to evaluate the change, and this evaluation work may be charged to Buyer at prevailing rates. The parties may mutually agree on the length of time within which a decision shall be made regarding the change. If mutually agreed, the changes will be documented in a written document signed by authorized representatives of each party, along with any equitable adjustments in the Contract price or schedule. Seller is not obligated to proceed with the changed schedule or scope until both parties agree in writing.

Changes in applicable laws, rules and regulations shall be treated as a change within the meaning, and subject to the requirements, of this Article. Unless otherwise agreed by the parties, pricing for additional work arising from changes in laws, rules and regulations shall be at time and material rates.

All Products delivered shall conform to Seller’s part or version number specified or (at Seller’s option) its equivalent or superseding number subsequently assigned by Seller. If the number ordered is no longer available, Seller is authorized to ship a valid interchangeable Product without notice to Buyer.

 

14. Inspection and Factory Tests

The quality control exercised by Seller in its manufacture of Products shall be in accordance with Seller’s normal quality control policies, procedures and practices. Seller shall attempt to accommodate Buyer’s requests to witness Seller’s factory tests of Products, if such witnessing can be arranged without delaying the work. Such access shall be limited to areas directly concerned with Products ordered by Buyer and shall not include restricted areas where development work or work of a proprietary nature is being conducted. Seller may manufacture and ship Products from any of its facilities.

 

15. Software

Any software provided by Seller to Buyer shall be subject to the terms of this Contract and the specific software license(s) accompanying the software. Seller retains all rights not granted in the applicable software license.

To the extent Seller w Services related to software, Seller shall own all proprietary rights in and to any modifications or enhancements of the software. Customer shall have only a “right to use” license to the modified or enhanced software for internal business purposes and shall not disclose, lease, distribute or otherwise transfer the software.

 

16. Returns

Products may only be returned with Seller’s authorization and must be in good condition, with complete identification, shipped freight prepaid, in accordance with Seller’s instructions. Returned Products are subject to a restocking charge. Custom-built products may not be returned.

 

17. Documentation

Seller shall provide Buyer with the documentation identified in Seller’s quotation or standard Product literature, in English. Additional copies or unique documentation are available, upon request, at additional cost.

 

18. General Clauses

Products and Services sold by Seller are not intended for use in connection with any nuclear facility or activity without the written consent of Seller. Buyer warrants that it shall not use or permit others to use Products or Services for such purposes, unless Seller agrees to the use in writing. If, in breach of this, any such use occurs, Seller (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damages, injury or contamination, and in addition to any other legal or equitable rights of Seller, Buyer shall indemnify and hold Seller (and its parent, affiliates, suppliers and subcontractors) harmless against any such liability. If Seller agrees in writing to any such use, the parties shall agree upon special terms and conditions that provide Seller protections against nuclear liability and which are acceptable to Seller under the then current laws that apply.

Seller may assign or novate any or all of its rights and obligations under the Contract, to any of its affiliates without Buyer’s consent, and may subcontract portions of the work, so long as Seller remains responsible for it. Buyer agrees to execute any documents that may be necessary to effect Seller’s assignment or novation. The delegation or assignment by Buyer of any or all of its duties or rights under the Contract without Seller’s prior written consent shall be void.

Buyer shall notify Seller immediately upon any change in the ownership of more than 50% of Buyer’s voting rights or in Buyer’s controlling interest. If Buyer fails to do so or Seller objects to the change, Seller may

(a) terminate the Contract,

(b) require Buyer to provide adequate assurance of performance (including but not limited to payment) or (c) put in place special controls regarding Seller’s Confidential Information.

If any provision of the Contract is found to be void or unenforceable, the remainder of the Contract shall not be affected.

The parties will replace any such void or unenforceable provision with a new provision that achieves substantially the same practical or economic effect and is valid and enforceable.

The Contract represents the entire agreement between the parties. No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing by the parties’ authorized representatives.

Each Product and Service provided hereunder is a “commercial item”, as defined in FAR 2.101, and is provided in accordance with FAR Part 12 and in accordance with FAR 52.244-6, if this is a subcontract. Except as listed below, no government contracting requirements, including without limitation those relating to cost accounting and the Truth-in-Negotiations Act, apply to this Contract. If the reasonableness of the price cannot be established through adequate price competition or if cost or pricing data should be required for any other reason or if a Product or Service cannot be considered a “commercial item,” Seller may cancel the Contract without penalty and be reimbursed for work done to date.

Seller reserves the right to reject any order from a buyer listed on any denied party list.