By placing an order, you acknowledge and agree to the Terms & Conditions set out here:
THIS AGREEMENT, CONSISTING OF THESE TERMS AND CONDITIONS AND THE ATTENDANT PROPOSAL, QUOTATION, AND ORDER ACKNOWLEDGMENT IS BINDING UPON ANALYTICAL SYSTEMS KECO, HEREINAFTER “SELLER”, AND THE CUSTOMER, HEREINAFTER “BUYER”, AND IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES.
1. Definitions: “Goods” means all equipment, parts, materials, supplies, software, firmware, documentation and other products Seller has agreed to supply to Buyer under the Agreement.
2. Acceptance: The sale of Goods is expressly conditioned on Buyer’s acceptance of Seller’s Terms and Conditions as stated herein and on the typed portion of the attendant quotation or order acknowledgement. Any additional or different terms proposed by Buyer in any documents are expressly objected to without need of further notice of objection and are of no effect and will not be binding upon Seller. 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 Agreement shall not be binding on either party. Any order for Goods and/or Buyer’s receipt of Goods shipped under this Agreement shall constitute assent to these Terms and Conditions. In the case of any conflict between the terms and/or conditions of Buyer’s order and these Terms and Conditions as expressed herein, these Terms and Conditions shall control.
3. Scope: Buyer is solely responsible for receiving, storing, installing, starting-up and maintaining all Goods. Seller will provide Buyer with appropriate price quotations should Buyer request Seller to perform services other than sale and delivery of the Goods. These Terms and Conditions apply only to the sale of Goods. Any services contracted for between Buyer and Seller may be subject to additional or differing terms and conditions. Additional products, services tests or certifications including but not limited to Factory Acceptance Tests, Inspections, Field Service, Start-up/Commissioning, Training, Hazardous Area certifications, certain optional items or supporting equipment (such as sample pumps, sample filters, probes, etc) requested by Buyer are not part of any Agreement unless separately identified and priced.
4. Prices: Unless otherwise specified in writing, all quoted prices are firm for thirty (30) days from the date of offer as reflected in the quotation or proposal. Seller reserves the right to change the price quotation for Goods to Seller’s price in effect for Goods at the time an order is released to final manufacture. Prices for Goods not manufactured by Seller will be the price of such Goods at the time the Goods are shipped to Buyer. Prices do not include installation. Prices do not include certifications which must be specifically ordered at an additional cost.
5. Documentation: Seller shall provide Buyer with the data/documentation which is specifically titled in the quotation or order acknowledgement. Additional copies of standard data/documentation or requests for special data/documentation will be made available to Buyer at additional cost.
Documentation includes, but is not restricted to, drawings, specifications, instruction manuals, training materials, and other such data or artwork furnished to the Buyer or the Buyer’s subcontractors. The definitions and restrictions set forth in the following subparagraphs apply regardless of the type of media on which the documents are provided.
Documentation shall include all documents describing the standard functionality and operation of the Seller’s products, commonly referred to as operation manuals, which are not produced exclusively for the Buyer.
Copyrights: Ownership of copyrights for all documents is retained by the Seller. The Buyer may purchase additional copies of Documentation.
Trademarks: The Buyer is granted a license to use the Seller’s trademarks in documentation produced by the Buyer for the purpose of facilitating the fair use of the Goods provided under this Agreement so long as the trademarks are treated in a manner that is consistent with applicable United States trademark laws and clearly identified as trademarks of the Seller. A list of said trademarks is available upon request of the Buyer.
Documents provided to the Buyer, or copies of copyrighted material(s) made by the Buyer under the provisions set forth in this subparagraph above may be used by the Buyer or the Buyer’s subcontractors only for the purpose of facilitating the fair use of the Goods provided under this Agreement. Said documents contain information considered to be the Seller’s confidential and proprietary property, and may not be disclosed to any other third party without written permission of the Seller.
6. Changes: Buyer’s changes made after formation of this Agreement that affect the schedule or other requirements of Goods to be provided or that otherwise affect the scope of this Agreement shall be submitted in writing by Buyer and shall become binding only if approved in writing by Seller’s cognizant representative. All charges and delays resulting from such changes shall be solely determined by Seller and shall be binding upon Buyer.
7. Termination, Suspension, and Breach: Unless the equipment has been shipped, Buyer may cancel its order or terminate or suspend performance under this Agreement at Buyer’s convenience by providing written notice to Seller that Seller determines is adequate at its home offices subject to the following reasonable and conclusive charges which shall be solely determined by Seller:
Buyer will reimburse Seller for any direct or indirect cancellation charges incurred by Seller, including without limitation reasonable profits and all costs and expenses incurred by Seller to prepare the Goods for satisfaction of Buyer’s order. Further, all orders cancelled will be subject to a restocking fee to be determined by Seller in its sole discretion, but in no event will such fee be less than fifty percent (50%) of the purchase price of the Goods.
Seller may suspend or discontinue delivery of any further Goods to Buyer if Buyer fails to make a payment to Seller for the Goods to be delivered or any Goods previously delivered. Suspended or discontinued delivery will continue until Seller receives full payment therefor from Buyer or if Seller receives assurances adequate to Seller of performance from Buyer.
The occurrence of any of the following events shall constitute a material breach of this Agreement, entitling the non-breaching party to terminate this Agreement: (1) failure by either party to substantially perform any of the material obligations under this Agreement if the right to cure is given through written notice and it not carried out by breaching party within 30 days of receiving notice; or (2) either party becomes insolvent, files for bankruptcy, or otherwise admits its inability to pay its debts as they mature.
8. Setoffs: Seller will have the right to setoff and apply any funds received from Buyer for the benefit of any other overdue accounts or amounts owed to Seller by Buyer.
9. Tax, Costs, Insurance: Quoted prices are exclusive of all city, state federal, or foreign sales, use, excise or other taxes or charges payable with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the Goods. All government charges upon the Goods tendered by this Agreement, including, but not limited to, use, occupation, VAT, income, export and import taxes, shall be paid by Buyer or, in lieu thereof, Buyer shall furnish Seller with a tax exemption certificate acceptable to the authority imposing the tax on Seller. However, Buyer will reimburse Seller for any taxes incurred by it on the sale of Goods to the extent such tax exemption certificate proves to be insufficient to the applicable taxing authority for any reason. Such reimbursement must occur within ten (10) days from the date Seller becomes aware of the invalidity of such tax exemption certificate. Quoted prices exclude shipping or transportation costs or insurance costs. Prices include standard packaging only. Any special handling or packaging requests will result in additional charges to Buyer.
10. Credit: The amount of credit offered by Seller to Buyer is solely contingent upon Seller’s opinion of Buyer’s capacity, ability, and willingness to promptly pay for Goods received under the terms of this Agreement. Provided that, in Seller’s opinion, there is a material adverse change in Buyer’s financial condition and/or Buyer has not, within the agreed time, fully paid for Goods previously supplied under this and/or another Agreement(s) with Seller, Seller reserves the right to revoke Buyer’s credit and/or suspend performance on this and/or other orders for Goods and services without liability to Seller.
11. Inspection: Buyer may make reasonable inspections of Goods at Seller’s factory. Seller reserves the right to determine the reasonableness of the request and to select an appropriate time and location for such inspection. All costs of inspection shall be solely determined by Seller and shall be to Buyer’s account. No inspection or expediting by Buyer at the facilities of Seller’s suppliers is authorized. Unless Buyer objects in writing at the conclusion of any tests or demonstrations, specifying the nature of its objections, Buyer shall be deemed to have accepted the Goods and these Terms and Conditions, if not already accepted.
Buyer may reject Goods it inspects only to the extent it discovers a defect materially impairing the value of the Goods. Any claims regarding material defects must be made within thirty (30) days from the date of Buyer’s inspection of the Goods or Buyer will be deemed to have waived such claims. Any lesser defects are governed by the terms of Seller’s applicable standard limited warranties. To the extent any damage to the Goods has occurred during shipping, Buyer’s exclusive remedy will be to file a claim with the carrier.
12. Shipment and Risk of Loss: All sales are ExWorks Seller’s factory in Houston, Texas. Shipping contracts made by Seller shall be to Buyer’s account. All claims for loss or damage after risk of loss has passed to Buyer shall be filed by Buyer with the carrier. Buyer shall be liable to Seller for the full price of the Goods, irrespective of loss or damage in transit. The price for the Goods includes packaging for domestic shipment only. Packaging for international shipment must be specifically requested and includes an extra charge.
Transportation Expenses: Transportation expenses shall be paid by the Buyer. Seller shall select the carrier. Full insurable
values shall be declared with the resultant insurance premiums being paid by Buyer. Shipping and insurance charges shall be prepaid by Seller and added to the Buyer’s invoice at cost, unless otherwise specified by Buyer.
Schedules: Dates quoted by Seller are estimated based upon Buyer’s specified requirements at time of order acceptance. Delays in receipt of approvals and/or information, changes that result in delays, or requested deferment of schedules may cause additional expense to Seller. Accordingly, in addition to the escalation provisions of the subparagraph below, Seller shall be entitled to an extension of time, and reimbursement of costs as defined in Clause 6 entitled “Changes”. The change in price shall be evenly divided among any invoices remaining to be issued, if any.
Escalation: All prices quoted are based on scheduled shipments within thirty (30) days from date of order acceptance. Delays caused solely by Seller beyond the quoted delivery date shall not be subject to escalation.
13. Payments: Invoices will be issued by Seller as of the date of shipment. Seller offers no discount periods and all payments are due 30 days after the invoice date, except as noted below or otherwise agreed upon in writing. Payments due Seller will be paid to Seller at its principal office in Houston, Texas and must be in U.S. Dollars. A monthly service charge of 1.5% may be charged on amounts owed by Buyer to Seller that have not been paid within 30 days of invoice date, subject to maximum amount permitted by law. If any overdue amounts have been handed over to an attorney for their collection, Buyer will reimburse Seller for all costs of collection and associated attorneys’ fees (with such costs and fees being not less than thirty percent (30%) of the total overdue amount payable).
14. Security Agreement: Buyer grants to Seller a security interest in all Goods being purchased by Buyer. The security interest granted by Buyer is given to secure payment of the full purchase price and all other charges due and owing Seller by Buyer. This security interest constitutes a “purchase money security interest” pursuant to the Uniform Commercial Code. These Terms and Conditions constitute a contract and security agreement, and Buyer hereby authorizes and appoints Seller as its attorney-in-fact to sign on Buyer’s behalf appropriate financing statements and to file those financing statements with the appropriate agency to perfect the security interest herein granted. Buyer shall pay all collection and foreclosure costs incurred by Seller in collecting under this provision including all attorneys’ fees incurred in such collection and foreclosure.
15. Limited Warranty: There is no warranty by Seller with respect to any Good’s (i) uninterrupted or error-free operation; (ii) actual performance, other than the Good’s capability to meet Seller’s specifications therefor; (iii) removal or installation from a worksite or process, or failure to provide a suitable installation environment; (iv) electronic components or associated accessories (including without limitation circuit boards and integrated circuits); (v) maintenance, adjustments, minor repairs and other inspection requirements, preventative or otherwise; (vi) use under inappropriate conditions or not in accordance with operating instructions; or (vii) use in connection with the operation of a nuclear facility. There is no warranty for labor expenses associated with field repairs or the repair or replacement of defective parts of any Good if such Good has been in the possession of the Buyer for greater than twelve (12) months. There is no warranty for Goods determined to be, in Seller’s sole discretion, damaged as a result of (a) misuse, neglect or accident; (b) improper application, installation, storage or use; (c) improper or inadequate maintenance or calibration; (d) operation outside of the published environmental specification; (e) damage caused by disasters such as fire, flood, wind and lightning (f) improper site preparation or maintenance; (g) unauthorized repairs or replacements; (h) modifications negligently or otherwise improperly made or performed by persons other than Seller; (i) Buyer-supplied software or supplies; (j) use in conjunction with or interfacing with unapproved accessory equipment or attachments. Seller warrants, to its original customer only, that Goods and their component parts are free from defects in material and workmanship for 12 months from date of shipment. If a failure to conform to specifications or a defect in materials or workmanship is discovered within this period, Seller must promptly be notified in writing, which notification, in any event must be received no later than 14 months from the date of shipment. Within a reasonable time after such notification, Seller will correct any failure to conform to specifications or any defect in materials or workmanship, or in lieu of such repair, and at its sole option, shall replace the equipment. Such repair, including both parts and labor, is at Seller’s expense. All warranty service will be performed at service centers designated by Seller. Prior to any obligation of Seller to perform any limited warranty service as set forth herein, Buyer must have paid all invoices to Seller in full, whether or not they are specifically related to the Goods at issue THE ABOVE ARE THE BUYER’S EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY.
Seller’s warranty obligation shall be limited to replacement or repair, F.O.B. Seller’s city of shipment. In no event shall Seller be liable for consequential or special damages, or for transportation, installation, adjustment or other expenses, which may arise in connection with such Goods. Goods which malfunction may be returned, shipment prepaid to Seller for testing and evaluation. During the warranty period, defective Goods will be repaired or replaced at no charge to the Buyer. Out-of warranty Goods will be evaluated at Buyer’s sole expense. If any Good returned due to a malfunction does not meet the original specifications, the Buyer will be notified of cost before Seller performs any repairs. Repairs will be warranted for 90 days from date of shipment to Buyer or for the balance of the original warranty period, whichever is longer. Malfunctions resulting from damage during shipping, accident, misuse, improper installation or improper operation are not warranted. Contact Seller for shipping instructions prior to returning any Goods.
SELLER DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE GOODS PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM OF INTERFERENCE WITH ENJOYMENT, QUALITY, ACCURACY, COMPLETENESS, FITNESS OF RESULTING WORK PRODUCT, OR THAT THE PRODUCTS OR SERVICES WILL GENERATE CERTAIN RESULTS, WORK IN COMBINATION WITH OTHER COMPONENTS OR AS AN INTEGRATED SYSTEM OR WILL FULFILL ANY OF BUYER’S PARTICULAR PURPOSES OR NEEDS. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE DESIGN, SALE, INSTALLATION OR USE OF ITS PRODUCTS. SELLER’S WARRANTIES WILL NOT BE ENLARGED BY, NOR WILL ANY OBLIGATION OR LIABILITY OF SELLER ARISE DUE TO SELLER PROVIDING TECHNICAL DIRECTION, FACILITIES OR SERVICE IN CONNECTION WITH ANY GOODS.
16. Force Majeure: Seller shall not be liable for its failure to perform under this Agreement or for any direct or consequential damages caused, either directly or indirectly, as a result of: (i) any act of God, including but not limited to natural disasters such as floods, earthquakes or tornadoes; (ii) failure of supplies or transportation, or governmental action; (iii) damages resulting from or under the conditions of labor disputes, strikes, riot, insurrection, civil commotion or war; (iv) damages or improper operation due to intermittent power line voltage, frequency, electrical spikes or surges, unusual shock or electrical damage; (v) accident, fire or water damage, corrosive atmosphere or causes other than ordinary use; or (vi) any other causes beyond Seller’s reasonable control.
17. Software Provisions: If software is provided under this Agreement, Buyer is granted a non-exclusive, non-transferable, royalty free license only for Buyer’s use of Seller’s software provided with the Seller’s system. Under this license Buyer may: (a) Use Seller’s software with the Seller’s system provided; (b) Copy the Seller’s software into any machine readable or printed form for back up in support of Buyer’s use of the Seller’s software on the Seller’s system provided; (c) Create one additional copy of the software for archival purposes only.
18. Patents: Seller shall defend and indemnify the Buyer against any actions of third parties based on claims that the Goods manufactured by Seller constitute an infringement of a valid patent of the United States for the benefit of such third parties, provided that Buyer notifies Seller in writing of any such claim within five days thereof and thereafter gives necessary authority, information and assistance to Seller for the defense of such action. In the event that the Goods manufactured by Seller are held to be infringing in such action and their use is enjoined, Seller shall only be required to, at Seller’s expense, modify Goods so they become non-infringing, or, if modification is not possible, refund the Buyer purchase price for the items that are infringing and remove them at Seller’s sole expense. Buyer agrees that Seller shall not be liable and that Buyer shall fully indemnify Seller if infringement is based upon the use of the Goods in connection with goods not manufactured by Seller or in a manner for which the Goods were not designed by the Seller or if the Goods were designed by the Buyer or were modified by or for the Buyer in a manner to cause them to become infringing.
19. Intellectual Property: All title to and ownership of all proprietary rights including all patent rights, copyrights, trademarks, trade secrets and other intellectual property and any inventions and software shall remain the property of Seller upon completion or termination of the Agreement. Buyer acknowledges and agrees that all Software is licensed, not sold by Seller, as provided for in this Agreement. Buyer acknowledges that all Goods and software and the intellectual property associated with such Goods and software, including all code, content, protocols, and documentation provided by Seller in conjunction with the Goods and software are Seller’s property and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. “Intellectual Property Rights” means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights. Seller grants Buyer a non-exclusive, revocable, royalty-free, and non-transferable license to use any patent rights, copyrights, trademarks, trade secrets or other intellectual property and any inventions associated with Goods, but only as required in order to make fair use of the Goods contracted for under this Agreement. Buyer may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice Seller has placed on Goods or software. Buyer may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the Goods or software, or attempt to do so for any reason. Further, Buyer may not access, create or modify the source code of the software in any way. Buyer does not have the right to and may not create derivative works of the Goods or software. All modifications or enhancements to the Goods or software remain the sole property of Seller. All intellectual property rights not expressly granted by this Agreement are expressly reserved to Seller.
20. Confidentiality: Seller and Buyer will not,
without the prior written consent of the other,
either (a) disclose any confidential, proprietary or commercially sensitive
information of the other that the party may be exposed to in the course of this
relationship to anyone other than those officers, employees, agents, or
subcontractors who need to know it in connection with performance of this
Agreement and have agreed to be bound by these obligations of confidentiality
or (b) use the other’s confidential information for any purpose other than
performance of this Agreement.
Confidential information may include, but is not limited to, all data,
maps, reports, drawings, specifications, records, technical information, and
computer programs/software concerning either party’s operations, processes or
equipment which are provided and/or acquired or handled by either party in
connection with this Agreement unless that confidential information was already
known to the receiving party, is available to persons in the public domain, is
lawfully acquired by either party from a third party or other source, or is
required by law or legal process to be disclosed provided that the receiving
party immediately notify the other party of such disclosure prior to disclosure
and cooperates with any attempts by the disclosing party to avoid such
disclosure. Confidential information
shall include, but is not limited to, all documents, data, maps, reports,
drawings, specifications, records, technical information, and computer
programs/software, or other commercially sensitive information concerning
either party’s operations, processes or equipment which are provided and/or
acquired or handled by either party in connection with this Agreement. Proprietary information shall include, but
not be limited to, any information, data or know-how in whatever form that is
related to the operations of either party including pricing information,
marketing information, terms and conditions of any proposed or actual agreement
between the parties and their clients or customers, and either party’s policies
21. General Provisions: (a) Neither party shall have the right to
assign its rights or obligations under this Agreement except with the written
consent of the other party, provided, however, that a successor in interest by
merger, by operation of law, assignment, purchase, or otherwise of the entire
business of either party, shall acquire all interest of such party
hereunder. Any prohibited assignment
shall be null and void. (b) There are no
understandings, Agreements or representations, expressed or implied, not
specified in this Agreement. (c) No action, regardless of form arising out
of transactions under this Agreement, may be brought by either party more than
two (2) years after the cause of action has accrued. (d) No representative of Seller has any
authority to modify these Terms and Conditions unless the modification is
contained in a written instrument signed by the President of Seller. (e) This Agreement is formed and shall be
construed under the laws of the State of Texas and any claims, lawsuits, or
other actions under this Agreement shall be filed and pursued in Texas in the
courts of Harris County. (f) All stenographic,
typographical and clerical errors in quotations or field engineering services
rate sheet and specifications may be corrected at any time by Seller. (g) If Goods supplied hereunder are used in a
nuclear power generation facility or any nuclear applications, Buyer fully
indemnifies Seller for any claims, demands, complaints, or actions of third
parties, Buyer or any of Buyer’s employees, independent contractors, or agents
including but not limited to claims for personal injury or property damage, and
any costs, expenses, or damages incurred as a result thereof which are based on
the negligence, gross negligence, or intentional misconduct of any party.
Data Interchange. Buyer and Seller may execute an order
acknowledgement by transmitting and receiving the data contained in the order
acknowledgement electronically rather than in paper form. To provide the legal validity and
enforceability of such order acknowledgement, Buyer and Seller further agree
the data transmitted herein will be considered “in writing” and to have been
“signed.” Buyer and Seller agree not to
contest the validity or enforceability of an order acknowledgement because of
the electronic origination, transmission, storage or handling of such order
acknowledgement. Any computer printout
of the data contained in the order acknowledgement will be considered an
“original” when maintained in the ordinary course of business and will be
admissible as between Buyer and Seller to the same extent and under the same
conditions as other business records maintained in documentary form. Buyer and Seller agree to properly use those
security procedures which are reasonably sufficient to ensure that a
transmission of the data contained in an order acknowledgement is authorized
and to protect its business records and data from improper sources.
23. Limitation of
Liability: IN NO CASE SHALL SELLER BE LIABLE FOR
ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES BASED UPON ANY
LEGAL THEORY WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO,
LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE PRODUCT OR ANY
ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF ANY SUBSTITUTE EQUIPMENT,
FACILITIES OR SERVICES, DOWNTIME, THE CLAIMS OF THIRD PARTIES INCLUDING
CUSTOMERS, INJURY TO PROPERTY AND, UNLESS PRECLUDED UNDER APPLICABLE STATE LAW,
BODILY AND PERSONAL INJURY. Seller’s total liability for any and
all losses and damages arising out of any and all causes whatsoever including,
without limitation, defects in the Goods, services, software, or documentation
supplied under this Agreement or breach of this agreement, shall in no event
exceed the purchase price of the applicable item(s).
24. Dispute Resolution: Both Parties understand and appreciate that
their long term mutual interests will be best served by affecting a rapid and
fair resolution of any claims or disputes that may arise out of the
Agreement. Therefore, any
controversy, claim, demand, complaint, or action, hereinafter “Claim”, whether
based on contract, tort, statute or other legal or equitable theory arising out
of or related to this Agreement (including any amendments, annexations, and
extensions) or the breach thereof shall be settled according to this Dispute
both Parties agree to use commercially reasonable efforts to resolve all such
disputes as fairly and rapidly as possible.
Toward this end both Parties agree to develop and follow a process for
presenting, rapidly assessing, and settling claims on a fair and equitable
basis. If any dispute or claim arising
under the Agreement cannot be readily resolved by the Parties pursuant to the
process referenced in this subsection, the Parties agree to refer the matter to
a panel consisting of one (1) executive, from each Party, not directly involved
in the claim or dispute for review or resolution. A copy of the contract terms, agreed upon
facts (and areas of disagreement) and concise summary of the basis for each
side’s contentions will be provided to both executives who shall review the
same, confer and attempt to reach a mutual resolution of the issue.
the dispute cannot be resolved under the process set forth above, the Parties
may elect to resolve the dispute through non-binding mediation. If mediation is to be utilized, the Parties
shall select a single unrelated but qualified mediator who shall hold a hearing
(not to exceed one (1) day) during which each Party shall present its version of
the facts (supported, if desired, by sworn, written testimony, and other
relevant documents), its assessment of damages and its argument. The Parties shall provide the mediator with a
copy of the Agreement and copies of all documents provided to their executives at
least ten (10) days prior to the scheduled date of the mediation hearing. The Parties may also provide the mediator
with copies of any laws or regulations that they feel are relevant to the
dispute. Formal written arguments, legal
memoranda and live testimony are discouraged but may be permitted at the
discretion of the mediator. Both Parties
agree to use commercially reasonable efforts to make any involved employees or
documents available to the other Party for its review and use in preparing its
position under this Section without the need for subpoena or other court order.
mediator, within fifteen (15) days of the completion of the hearing, will meet
with both Parties and provide each of them, on a confidential basis, with his
written views of the strengths and weaknesses of their respective positions. The Parties will then reconvene and, with the
assistance of the mediator, attempt to resolve the matter. If resolution cannot be achieved by the
Parties within forty-eight (48) hours of this second meeting, the mediator,
within fifteen (15) additional days, will issue a written, nonbinding decision
on the issue.
the matter has not been resolved utilizing the processes set forth in this
Section and the Parties are unwilling to accept the nonbinding decision of the
mediator, either or both Parties may elect to pursue resolution through
litigation. The costs of the mediator
shall be borne by the losing Party (determined at mediation or through
subsequent litigation). Each Party will
bear its own additional costs of mediation.
If a settlement is reached in
a case in which joint liability is alleged, the Parties, subsequent to settlement, shall utilize
this Dispute Resolution procedure to determine the proportion of relative
for any litigation shall be Houston, Harris County, Texas. The choice of law for governing any dispute
shall be Texas without regard to that State’s conflict of laws provisions. BOTH PARTIES WAIVE THEIR RIGHT TO A JURY
terms may not limit any obligation of a party to defend, indemnify or hold
harmless another party against a claim as provided above. The parties hereby waive all rights to a
trial by jury. In
addition, Buyer agrees the price it is agreeing to pay for the Services
reflects an analysis of the elimination of uncertainty regarding the
jurisdiction and venue for any dispute.
25. Product Changes. Seller, in its sole discretion, may modify
the design and construction of its Goods and will have no obligation to
retrofit previously sold Goods.
26. Buyer Data. If any data supplied by Buyer, whether in the
form of Buyer specifications or pursuant to any purchase order or other
documentation, proves to be inaccurate, any warranties or other related
obligations of Seller relying thereon will be void.
27. Export. Buyer agrees to comply with all applicable
export and re-export control laws and regulations, including the Export
Administration Regulations (“EAR”) maintained by the U.S. Department of
Commerce, trade and economic sanctions regulations maintained by the Treasury
Department’s Office of Foreign Assets Control (“OFAC”) and the International
Traffic in Arms Regulations (“ITAR”) maintained by the Department of
State. Buyer will be responsible for
obtaining any license required under EAR, OFAC regulations or ITAR. Seller
will identify in writing to Buyer those items, technology and software
for which an export license is required and provide export classification and
licensing information necessary for export documents, including but not limited
to the appropriate Export Control Classification Number from the Commerce
Control List, the applicability of license exceptions, license numbers and
copies of licenses. Buyer agrees to
indemnify Seller for any fines, penalties, claims, losses, damages, costs
(including legal costs), expenses and liabilities that may arise as a result of
Buyer’s breach of this Section.
28. Governmental Procurement. No governmental procurement regulations or
contractual clauses will be binding upon either
Seller or Buyer unless such regulations or clauses are mutually agreed to by
Seller and Buyer.
29. Governmental Compliance. Buyer acknowledges and certifies that to the
extent required by law, rule or regulation, Buyer, its subcontractors, and
their respective employees and agents, shall be required to comply with the
following: The Foreign Corrupt Practices
Act, 15 U.S.C. §78dd-1 et seq.; The Immigration Reform and Control Act of 1986
and related regulations; the Equal Opportunity Clause prescribed in
41 CFR 60-1.4 (race, color, sex, national origin);
the Affirmative Action Clause prescribed in 41 CFR 60-250-4
(veterans); the Affirmative Action Clause prescribed in 41 CFR 60‑741.4
(handicapped workers); 43 CFR Chapter 1, Subpart 19.7 (Small
Business and Small Disadvantaged Business Concerns); 48 CFR Chapter
1, Subpart 20.3 (Utilization of Labor Surplus Area Concerns); Executive
Order 12138 (women-owned businesses); 41 CFR 60‑1.40
(establishment of a written affirmative action program); 41 CFR 60‑1.7
(filing the Employer Information report annually); 41 CFR 60‑1.8
(non-segregated facilities); the Fair Labor Standards Act of 1938; and all
relevant amendments of such laws, rules and regulations.
30. Disclaimer of UN Conventions. In accordance with Article 6 of the
United Nations Convention on Contracts for the International Sale of Goods,
Seller and Buyer exclude the application of such convention to these Terms and
Conditions, including all terms, obligations, requirements and duties that may
be said to exist or arise from such convention.
In accordance with Article 3(2) of
the Convention on the Limitation Period in the International Sale of Goods,
Seller and Buyer exclude the application of such convention from these Terms
and Conditions, including all terms, obligations, requirements and duties that
may be said to exist or arise from such convention.
31. Survival. Each of the representations, warranties,
covenants and obligations set forth in these Terms and Conditions shall survive
the sale of the Goods from Seller to Buyer for an indefinite period and each of
Seller and Buyer will continue to be bound by these Terms and Conditions.
32. Nonwaiver: Any failure by any party to strictly enforce
the Terms and Conditions as stated in this Agreement or to exercise any rights acquired
hereunder shall not constitute a waiver of such terms or rights and shall not
affect the right of the party to enforce or exercise such terms or rights in
33. Severability: If any one or more of the provisions or
subjects contained in the Agreement shall for any reason be held invalid,
illegal, or unenforceable, it shall not affect the validity and enforceability
of any other provisions or subjects.