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HomeMy Public PortalAbout052-2018 - Glexpro - turbines in pump bldgPURCHASE AGREEMENT 01�z THIS AGREEMENT made and entered into this 11-1 I day of March, 2018, by and between th� City of Richmond, Indiana, a municipal corporation acting by and through its Board of Sanitary �O4� Commissioners, 50 North 5'�' Street, Richmond, Indiana 47374 (hereinafter referred to as the "City") and Gexpro, 3830 Hanna Circle, Ste. A, Indianapolis, IN 46241 (hereinafter referred to as the "Contractor"). SECTION I. STATEMENT AND SUBJECT OF WORK City hereby agrees to purchase from Contractor equipment and engineering services for the replacement of a variable frequency drive (VFD) at the Intermediate Pump Building at the City's waste water treatment plant. The obsolete AF300ES VFD will be replaced with a current production AF-600 FP fan and pump drive. The VFD controls the speed of our Intermediate Pump Building effluent pumps. The existing VFD shut down and needs to be replaced as soon as possible. City requested a quote from Contractor, and not from any other contractors, as Contractor is the sole source for all of Richmond Sanitary District's (RSD) high power (HP) motors, all of which are controlled by GE equipment. Contractor is the exclusive dealer for these General Electric (GE) drives. The response of Contractor to the Request for Proposal is dated March 16, 2018, which proposal includes an itemized list of major equipment included as well as services provided, is attached hereto and incorporated by reference herein as Exhibit "A", consisting of eleven (11) typewritten pages. Contractor will deliver the equipment to the City and also shall City give eight (8) hours of on -site field engineering with the purchased equipment. Should any provisions, terms, or conditions contained in any of the documents attached hereto as Exhibits, or in any of the documents incorporated by reference herein, conflict with any of the provisions, terms, or conditions of this Agreement, this Agreement shall be controlling. This Agreement shall not take effect until the City is in receipt of any required bonds and certificates of insurance, and until a purchase order has been issued by the Purchasing Department. SECTION 11. STATUS OF CONTRACTOR Contractor shall be deemed to be an independent contractor and is not an employee or agent of the City of Richmond. The Contractor shall provide, at its own expense, competent supervision of the work. SECTION III. PURCHASE PRICE City shall pay Contractor for the equipment and installation and technical service support as set forth on page 1 of Exhibit "A", at a sum not to exceed Twenty -One Thousand Dollars and No Cents ($21,000.00), exclusive of any applicable taxes, permits and licensing fees. The estimated delivery time for the above described equipment is as soon as possible, but not to exceed seventy-five (75) days after the execution of this Purchase Agreement, or no later than June 15, 2018, whichever occurs later. Contract No. 52-2018 Page 1 of 3 SECTION IV. PROHIBITION AGAINST DISCRIMINATION Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. SECTION V. MISCELLANEOUS This Agreement is personal to the parties hereto and neither party may assign or delegate any of its rights or obligations hereunder without the prior written consent of the other party. Any such delegation or assignment, without the prior written consent of the other party, shall be null and void. This Agreement shall be controlled by and interpreted according to Indiana law and shall be binding upon the parties, their successors and assigns. This document constitutes the entire Agreement between the parties, although it may be altered or amended in whole or in part at any time by filing with the Agreement a written instrument setting forth such changes signed by both parties. By executing this Agreement the parties agree that this document supersedes any previous discussion, negotiation, or conversation relating to the subject matter contained herein. This Agreement may be simultaneously executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same instrument. The parties hereto submit to jurisdiction of the courts of Wayne County, Indiana, and any suit arising out of this Contract must be filed in said courts. The parties specifically agree that no arbitration or mediation shall be required prior to the commencement of legal proceedings in said Courts. By executing this Agreement, Contractor is estopped from bringing suit or any other action in any alternative forum, venue, or in front of any other tribunal, court, or administrative body other than the Circuit or Superior Courts of Wayne County, Indiana, regardless of any right Contractor may have to bring such suit in front of other tribunals or in other venues. In the event of any breach of this Agreement by Contractor, and in addition to any remedies, Contractor shall be liable for costs incurred by City in its efforts to enforce this Agreement, including but not limited to, City's reasonable attorney's fees, to the proportionate extent that Contractor is determined to be in breach of this Agreement. In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. If any portion of this agreement is declared unenforceable by a com 1 or tribunal, all other portions shall remain in full force and effect. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal of Contractor to execute this Contract, that such authorization has not been rescinded or revoked and is binding upon Contractors and its assigns. Page 2 of 3 IN WITNESS WHEREOF, the parties have executed this Agreement at Richmond, Indiana, as of the day and year first written above, although signatures may be affixed on different dates. "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Sanitary Commissioners By: ue Miller, President Aman Bakshi, Vice President Stiens, Member Dated: APPROVED: David M. Snyor Dated: ©� �6 LI'b "CONTRACTOR" GEXPRO � - roll,ft fir.. ,.,._ , ;.g Dated: 41 Page 3 of 3 GE Gexpro PARTS &SERVICE Industrial Solutions www.ge.com BUYERS INFORMATION: Quote Requested by Mitzi Milner Company GEXPRO Address 3830 Hanna Circle Ste A Indianapolis, IN 46241 Phone 317-821-2015 Email Mitzi.milner@gexpro.com Service Contact Phone REFERENCE City of Richmond IPB Bldg. VFD NOTICE: This quotation is void unless accepted within 30 days from date hereof and is subject to change upon notice. However, if GE elects to perform the services covered by the quotation, in response to an order placed 30 or more days after the date of the quotation, the terms of the quotation will apply. QUOTATION NO. V1054543-0318WLH Rev. 0 DATE March 15, 2018 SUBMIT PURCHASE ORDER TO: GEXPRO GEXPRO Contact Mitzi Milner Address 3830 Hanna Circle Ste A Indianapolis, In 46241 Phone 317-821-2015 Fax 317-821-2000 Email mitzi.milner@gexpro.com REMIT PAYMENT TO:GEXPRO PO Box 742833 Atlanta, GA 30374-2833 Work Services Description GE's Industrial Solutions business (GE) is pleased to offer this firm price proposal to provide the equipment and engineering services as described herein for the replacement of a variable frequency drive (VFD) at the City of Richmond, Indiana, waste water treatment plant for the IPB Building Pump #1. The obsolete AF300E$ VFD will be replaced with a current production AF- 600 FP fan and pump drive. Scope of Supply: 1. Services: a. GE will provide application engineering to specify and order the replacement VFD with the ratings and features necessary to provide the functionality required by this custom application. b. Included in this firm price proposal is up to one eight -hour day of GE field engineering service onsite in Richmond, Indiana to provide technical support during installation, checkout, startup, commissioning, and limited operator/electrician training. c. GE will provide the standard AF600 drive elementaries and redline one (1) set of the existing system drawings. d. GE will provide application and configuration files on storage media for backup and restoration procedures (i.e. CD-ROM, tape, disk, etc. including PLC, HMI, drives, PC, and others). Major Equipment Included: a. Qty one (1) AF-600 FP variable torque/variable frequency AC Drive, 460V/3PH/250HP IP20 - Protected Chassis, Three phase, 160 KW, 302 Amps, with Conformal Coatings. The drive will tolerate 110% overloads for 60 seconds and is suitable for operation in a 40°C ambient. The drive will be provided as a core unit for installation in an existing enclosure. The drive will include a core mounted keypad programmer, USB port extender, and analog 1/0 card and will be configured to accept remote start/stop commands and a 0-10 Volt speed reference signal. b. Qty one (1) Windows based Drive Configuration Tool for use on a PC supplied by the customer. 3. Schedule: a. Equipment delivery is estimated at 4-6 weeks after Acknowledgement of Order to proceed. Price, Terms and Conditions GE will accomplish the above -described work scope for the firm fixed price of $21,000.00. • Price is valid for material shipped and work completed by June 30, 2018. • Invoice to be issued upon completion • Payment Terms: Net 30 days from the date of invoice. • Pricing does not include any applicable taxes, permits and licensing fees. Quote Number: V1054543-0318WLH Rev. 0 GE Confidential and Proprietary Page 1 of 11 GEIS Form QQ.080315.RevA GE Glexpro PARTS &SERVICE Industrial Solutions www.ge.com The sale of any service and products, and the integration thereof, ordered by the Buyer is expressly conditioned upon the terms and conditions contained in this quotation and Form ES104 (Rev 4): Terms and Conditions for Sale of Products and Services (attached). Any additional or different terms and conditions set forth in Buyer's purchase order or other communications from the Buyer are expressly objected to and will not be binding upon GE unless specifically agreed to in writing by an authorized GE employee. No other terms and conditions contained within any other agreement and/or purchase order shall be enforceable. Oral agreements and/or commitments to perform services are not enforceable. Each item and service GE provides is a "commercial item" as defined in FAR PART 2, 2.101 and is provided in accordance with FAR Part 12 and in accordance with FAR 52.244-6 if this is a subcontract. To the full extent permitted under FAR Part 12, the terms and conditions of FAR 52.212-4 are replaced by the terms and conditions set forth in this proposal. Therefore, no governmental contracting provisions, standards or requirements, including without limitation those relating to cost accounting and the Truth -in -Negotiations Act, but those expressly accepted in writing by the GE International Inc. business apply. 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 the item or service cannot be considered a "commercial item," GE may cancel the contract without penalty and be reimbursed for work done to date. GEXPRO and/or The City of Richmond, Indiana is responsible for identifying any tasks (prior to the work being performed) and providing the craft labor to perform (if required) that fall under prevailing wage statutes or Davis -Bacon Act provisions. Additional Services Should the Buyer desire to have GE perform additional services beyond the scope of services described in this proposal, a change order request will be submitted for the additional associated costs. No additional services shall proceed without written authorization from the Buyer. Additional services will be performed per our published rates for Service, applicable at the time that worked is performed, including work that extends through the weekend / holiday. The current rates for Service can be found in Attachment "A". Buyer's Responsibilities The Buyer's responsibilities shall include, but are not limited to, the following: • Issue switching orders, schedule outages, and de -energize the electrical apparatus, including Lock -Out Tag -Out (LOTO) of all systems associated with GE's work scope involved in the project. LOTO procedures shall meet or exceed Contractor or GE's requirements, whichever are more stringent. • Prior to the start of the on -site work, Buyer shall familiarize GE personnel with their safety practices, regulations in effect at jobsite, and any chemical and physical hazards, including process safety issues associated with the work environment. GE shall be under no obligation to commence work unless safety practices are acceptable to GE. As a safety precaution, prior to the commencement of work, access to a nearby telephone with the ability to call outside the facility will be provided by Buyer, as well as telephone numbers for local emergency services. • Buyer will dispose of all wastes generated at the work site. Buyer will be responsible for environmental conditions and will keep the equipment free of contaminants that would be detrimental to the performance of the equipment. • Buyer shall be responsible for the removal and replacement of any obstructions that may interfere with access to or removal of the existing equipment. • Buyer will provide an experienced electrician or electrical supervisor familiar with the power distribution system and trained in electrical safety and emergency response procedures including CPR, AED, and first aid for purposes of: ➢ Directing GE personnel in identifying and isolating the proper electrical equipment. ➢ Shutting down electrical equipment in an emergency and providing emergency response during high risk operations including electrical work when a single GE representative is dispatched. This person must be visually present during all electrical work and high risk operations. If not present then GE will stop work and notify the Buyer. ➢ Complying with OSHA 1910.269(I)(1) and 1910.269(b) • Buyer will provide an experienced electrician or electrical supervisor familiar with the power distribution system to direct GE personnel in identifying and isolating the proper electrical equipment. • Buyer will provide all "special" maintenance tools including; closing handles, test couplers, closing jacks, lifting devices, breaker cars/lift trucks, etc., furnished or defined by the original equipment manufacturer(s). • Buyer shall provide one (1) copy of existing system schematics, drawings and other information regarding the equipment/site that is needed, and be responsible for the accuracy of same and verbal information concerning existing conditions and wiring. Quote Number: V1054543-0318WLH Rev.0 GE Confidential and Proprietary Page 2of 11 GEIS Form QQ.080315.RevA GE Gexpro Industrial Solutions PARTS & SERVICE 1-888-434-7378 www.ge.com • Buyer will provide/operate/maintain services for drinking water, sanitary facilities, parking, trash containers, and lighting. • Buyer to provide craft labor with tools and equipment to assist field engineer working on site, if necessary. • Buyer to supply, operate, and maintain all standard services to the site facility, such as electric power, lighting, water, air, etc., if required. Backup for these systems is not included in this proposal. These services are to be made available to GE, including a suitable source of 60Hz 120/240 volts AC, unless otherwise provided herein. • Buyer shall be responsible for the review of the installation to assure compliance with applicable codes. It is the intention of GE to comply with the applicable codes, standards, laws, regulatory requirements, etc.; however, by law it is the responsibility of the Buyer for compliance of the total installation. GE would be pleased to quote any additional features or equipment that the Buyer deems necessary to meet these requirements. Assumptions and Clarifications Any items or services not specifically outlined herein are not included. • GE assumes and is relying on the fact that any information furnished by Buyer is accurate and complete. To the extent that GE obtains actual knowledge of any conditions with the equipment and/or the conditions at site are in addition to and/or different from those indicated in the Buyer's furnished documentation / information and/or there is a previously unknown physical condition that is found with the equipment and/or at the site, GE shall notify the Buyer. If such conditions) exist and this causes an increase in GE's cost of and/or the time required for the performance of any part of the work under a contract, an equitable adjustment may be made, including without limitation, to the price and/or schedule. • No additional work scope shall proceed without the written authorization of the Buyer. • Should any unforeseen work delays beyond the control of GE occur, including those as a result of malfunctions or deficiencies encountered with the equipment (unless caused by GE) or should the Buyer desire to have GE perform work beyond the scope of work described in this proposal, that work will be billed at the published rates in effect at the time of performance of that the work scope and will apply to all GE project management, field engineers, field engineering service technicians and/or craftsmen. • GE expressly objects to any requirements, methods or conditions contained in any Buyer request that are not specifically addressed in this document, and such requirements, methods and conditions, if any, are outside the scope of this proposal. • Schedule: Unless otherwise stated in the scope, all work will be performed on a straight time basis. All work is to be performed on a mutually agreeable schedule. The foregoing work as described under work scope shall be performed during normal working hours Monday through Friday, Holidays excepted. If work is performed on an overtime basis, the premium for the time spent and other applicable cost will be billed in addition to the price quoted and will be billed at our published rates in effect at the time work is performed. Time and expense of GE employees' travel from their headquarters to work site and return, shall be considered as time worked. GE requires a minimum two (2) weeks advance notice to ensure availability of resources. • The services shall be considered "substantially complete' when the services to be performed by GE or the designated portion thereof, are sufficiently complete in accordance with the contract documents, so that the Buyer can occupy or use the services or portion thereof for its/their intended use. For a products only order, "substantially complete" shall mean the date of shipment of the products. Quote Number: V1054543-0318WLH Rev. 0 GE Confidential and Proprietary Page 3 of 11 GEIS Form QQ.080315.RevA - GE Gexpro PARTS & SERVICE O 1-888-434-7378 Industrial Solutions www.ge.com GENERAL ELECTRIC INTERNATIONAL, INC By: Wally Veazie Title: Senior Sales Manager Email: Wally.veazie@ge.com Phone: F317-574-8317 [Cell-, 317-407-1281 CC: Kiran Patel -GE -Indianapolis Brandon Morgan -GE -Indianapolis BUYER: Company: GEXPRO By: Mitzi Milner Title: Inside Sales Email mitzi.milner@gexpro.com This proposal and specification are submitted in confidence solely for use in consideration of the merits of the offering and for no other direct or indirect use by Buyer and its contents are proprietary to GE. In taking receipt of this document, Buyer agrees not to reveal its contents except to those in its own organization who must evaluate it, to use this document and the information that it contains exclusively for the above -stated purpose and to avoid disclosure of the information to competitor of GE. Quote Number: V1054543-0318WLH Rev.0 GE Confidential and Proprietary Page 4&11 GEIS Form QQ.080315.RevA GE Energy Connections Attachment"A" USA Commercial Rates for Industrial Services Effective: August 29 2017 8-Hour Daily Rates U.S. Dollar GE Energy Connection's field service engineers and consulting Service Description weekday Saturday Sunday/ experts are on call to provide a wide range of service and repairs on Field Services Holiday Field Engineer $2.090 $3,014 $3,938 both GE and non -GE equipment and en engineered systems in 9 y Specialized Field Engineer $2,552 $3,707 $4,862 Industrial and Balance -Of -Plant Power Plant Systems. Consulting Engineer $3,675 $5,397 $7,114 Service Center For more information contact your local GE office or call our 240 customer service center at 88&434-7378 Service Center Specialist $2,090 $3,014 $3,938 or 540-387-8617 or visit us at www.reindustrial.com/serviceL Service Tech Work Leader $1,733 $2,473 $3,218 Service Technician $1,654 $2,363 $3,066 Typical Installations, Services, Repairs, and Products: Phone Support $1.300/cose • Transformer (Including Mechanical, Electrical, Fluid & LTC) Critical Power Emeraencv Standby Retainer Q 200/month • Power Delivery Equipment Tooling Rates Motors. Drives and Controls Equipment • Distributed Control Systems and Programmable Logic Controls IR Camera $75/der , $30o/week • Instrumentation Related to Process Control and Automation Systems Vibration Test Set $125 der , $500 week • Marine Electrical Systems Online Motor Test Set $25 der , $1,000 week • Power System Studies Offline Motor Test Set 25 a , 1,000/week w Primary Current In ection Set $35der , $1,400 week Rate Terms Relay Test Set $500 der , $2.000 week Power Factor Test Set 500 a 2 000 week 1. Work greater than 8 hours per day is billed per hour: Overtime Double Time Vacuum Oil Processor $2.500 day Field Enaineer $346.00 $462.00 Specialized Field Engineer $433.00 $577.00 Field Engineer Consultina Engineer $644.00 $858.00 Service is technical advice and counsel from field personnel Service Center Specialist $346.00 $462.00 Service Tech Work Leader $278.00 $371.00 based an sound engineering, manufacturing, installation and Service Technician $264.00 $352.00 operation practices as applicable to the equipment. Such services may include analysis, adjustment, programming and For less than 24 hour response. a 1.35 multiplier is used for daily, overtime and double time rates. other similar services. They do rot include supervision or management of purchaser's employees, agents or other Overtime applies to billable weekday hours 9-12. Double Time applies to: Billable weekday hours greater contractors and do not include design effort. than 12, Saturday hours greater than 8, Sundays and holidays. Specialized Field Engineer 2. Preparation, travel, and report wring time will be charged at the applicable rate (i.e., daily rates, overtime P 9 and double time) on a round trip basis with point of departure based on the location of the GE These services include installation, commissioning, repair, Representative's office/service center. service, maintenance and upgrade work associated with: 3. Additional travel and living expenses include: • Mediumvoltogemotors,&generators CNemightstay $160per day • Paralleling Switchgear Air Travel / Rental Car charges Cost + 20% • Synchronous motors & generators, including excitation • Medium voltage dives • Legacy drive products, including: DC/AC2000, Notes: Additional T&L charges may apply for high cost of fiving areas. DC/DV/AC300, Innovation, Siltron & Valutrol 4. Travel and living expenses outside the continental USA, will be billed at a cost plus 20% minimum, or • Legacy control systems including Series 5 & Series 6 consult with your local GE representative for a local per diem rate. • Specialty power system studies, including: Harmonic, 5. Materials, subcontract labor and equipment required to support GE will be provided at cost+ 35%, Transient Switching & Grounding 6. All equipment is F.O.B. shipping pant, seller's dock, with freight prepaid and charged 3% of material price • Shipboard and offshore work, with a minimum 14-hour / (a minimum per shipment charge of $100.00 shall apply) Seller reserves the right to select the method of day billing Platform work requires a pay differential. transportation provided for all products unless specified by the client not less than 72 hours prior to shipment Any premium transportation or required special handling is in addition and shall be for the Consulting Engineer account of the Buyer. Cansultngergneesprovideservaesr�uiingahghlevelof 7' Consult with local GE office to determine applicable charges for other special tooling and/or test al expense and typically include engineering a technic al equipment or any taxes, fees or VAT that maybe in addition to the above rates. Mnimurn daily billing of analysis and diagnosis a problem. A consulting engineer 8 hours for all services provided including standby time. A minimum order of $500.00 shall apply for a has specialized background, experience, and training in parts/material only order. 8. All rates are for hours worked, traveled, or on standby and are based on GE's standard terms and application, design, analysis, systems and automation. conditions of sale (Form ES 104 Rev 41. Price and data subject to change without notice. This quotation is Service Center not valid for PCB services, off shore or confined locations. 9. Phone Support is a service provided on the phone by a Field Engineer for limited hardware and software Service Cerrter Specialist Provides overall coordination and troubleshooting services. technical leadership on -site and n shop of service craftsmen 10. Employee screening costs as required by the customer will be provided as follows: and Work Leaders. custom dug screen or backaround check $100 Service Center Kbrk Leader Provides on -site and in shop, TWIG Card $250 hands on leadership of GE craftsmen on a per shift basis. BOISET+HUET $1,500 Notes All travel time to complete the screenings will be billed at the applicable hourly rate as set forth in Service Techrddarr Craftsmen eiperienced in the inspection, 1 above plus expenses. All other specialty training will be billed at cost + 20% test, installation, service, and repair of one or more of the 11. All time to complete site specific training will be billed at the applicable hourly rate as set forth in 1 above following equipment types: plus expenses. • Transformer (Mechanical, Electrical, Fluid & LTC) 12. A Critical Power Emergency Standby Retainer provides access to a qualified GE Field Engineer at the • Motors, Drives & Controls Equipment customer site on the same day the need is identified by the customer. All time to support the emergency • Switctgeor service, including travel to and from the customer site, will be billed at the applicable hourly rate cis set forth • Mechanical in 1 above, however the 1.35 multiplier applied to work with less than 24hrs notice is waived • Hydro (Electrical, Mechanical & Controls) **The Standard and Applicable rates shown on this sheet assume that services are being performed at a location that is not subject to a Location Premium which is an additional charge/rate that may be assessed for remote, r ' inconvenient, confined or offshore work sites. Please contact GE to see if a Location Premium applies to your location. Terms and Conditions for Sale of Products and Services Form ES 104 (Rev. 4) NOTICE: Sale of any Products or Services is expressly conditioned on Buyer's assent to these Terms and Conditions. Any acceptance of Sellers offer is exprens r limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer. No facility entry form shall modify these Terms and Conditions even if signed by Seller's representative. Any order to perform work and Seller's performance of work shall constitute Buyer's assent to these Terms and Conditions. Unless otherwise specified in the quotation, Seller's quotation shall expire 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer's conforming acceptance. 1. Definitions "Buyer" means the entity to which Seller is providing Products or Services under the Contract. "Contract" means either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products or Services, together with these Terms and Conditions, Sellers final quotation, the agreed scope(s) of work, and Sellers order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract. "Contract Price" means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract. "Hazardous Materials' means any toxic or hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good radioactive material, petroleum or petroleum - derived products or by-products, or any other chemical, substance, material or emission, that is regulated, fisted or controlled pursuant to any national, state, provincial, or local law, statute, ordinance, directive, regulation or other legal requirement of the United States ("U.S,") or the country of the Site. "Insolvents ankrupt" means that a party is insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy, insolvency dissolution or liquidation laws. "Products" means the equipment, parts, materials, supplies, software, and other goods Seller has agreed to supply to Buyer wider the Contract. "Seller" means the entity providing Products or performing Services under the Contract. "Services" means the services Seller has agreed to perform for Buyer under the Contract. "Site" means the premises where Products are used or Services are performed, not including Sellers premises from which it performs Services. Terris and Conditions" means these 'Terms and Conditions for Sale of Products and Services", including any relevant addenda pursuant to Article 18, together with any modifications or additional provisions specifically stated in Seller's final quotation or specifically agreed upon by Seller in writing. 2. Payment 2.1 Buyer shall pay Seller for the Products and Services by paying all invoiced amounts in U.S. dollars, without set-off for any payment from Seller not due under this Contract, within thirty (30) days from the invoice date. If the Contract Price is less than U.S. Two Hundred Fifty Thousand Dollars ($250,000), Seller shall issue invoices upon shipment of Products and as Services are performed. If the Contract Price is U.S. Two Hundred Fifty Thousand Dollars ($250,000) or more, progress payments shall be invoiced starting with twenty-five percent (25%) of the Contract Price for Products and Services upon the earlier of Contract signature or issuance of Seller s order acknowledgement and continuing such that ninety percent (90%) of the Contract Price for Products is received before the earliest scheduled Product shipment and Services are invoiced as performed ("Progress Payments"). For each calendar month, or fraction thereof that payment is late, Buyer shall pay a late payment charge computed at the rate of 1.5% per month on the overdue balance, or the maximum rate permitted by law, whichever is less. 2.2 As and if requested by Seller, Buyer shall at its expense establish and keep in force payment security in the form of an irrevocable, unconditional, sight letter of credit or bank guarantee allowing for pro-rata payments as Products are shipped and Services are performed, plus payment of cancellation and termination charges, and all other amounts due from Buyer under the Contract ("Payment Security"). The Payment Securitv shall be (a) in a form, and issued or confirmed by a bank acceptable to Seller, (b) payable at the counters of such acceptable bank or negotiating bank, (c) opened at least sixty (60) days prior to both the earliest scheduled shipment of Products and commencement of Services, and (d) remain in effect until the latest of ninety (90) days after the last scheduled Product shipment, completion of all Services and Seller's receipt of the final payment required under the Contract. Buyer shall, at its expense, increase the amnunt(s), extend the validity period(s) and make other appropriate modifications to any Payment Security within ten (10) days of Seller's notification that such adjustment is necessary in connection with Buyers obligations under the Contract. 2.3 Seller is not required to commence or continue its performance unless and until any required Payment Security is received operative and in effect and all applicable Progress Payments have been received. For each day of delay in receiving Progress Payments or acceptable Payment Security, Seller shall be entitled to a matching extension of the schedule. If at any time Seller reasonably determines that Buyer's financial condition or payment history does not jmtify continuation of Seller's performance, Seller shall be entitled to require full or partial payment in advance or otherwise restructure payments, request additional forms of Payment Security, suspend its performance or terminate the Contract. Taxes and Duties Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Contract ("Seller Taxes"). Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Seller or its subcontractors) in relation to the Contract or the performance of or payment for work under the Contract other than Seller Taxes ("Buyer Taxes"). The Contract Price does not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Contract Price without reduction for Buyer Taxes. Buyer shall provide to Seller, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes. 4. Deliveries; Title Transfer, Risk of Loss; Storage 4A For shipments that do not involve export, including shipments from one European Union ("EU") country to another EU country, Seller shall deliver Products to Buyer FCA Seller's facility or warehouse (Incetems 2010). For export shipments, Seller shall deliver Products to Buyer FCA Port of Export (Incotems 2010), Buyer shall pay all delivery costs and charges or pay Seller's standard shipping charges plus up to twenty-five (25%) percent. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within ten (10) days after receipt. Page 6 of ll 4.2 For shipments that do not involve export, title to Products shall pass to Buyer upon delivery in accordance with Section 4.1. For export shipments from a Seller facility or warehouse outside the U.S., title shall pass to Buyer upon delivery in accordance with Section 4.1. For shipments from the U.S. to another country, title shall pass to Buyer immediately after each item departs from the territorial land, seas and overlying airspace of the U.S. The 1982 United Nations Convention of the law of the Sea shall apply to determine the U.S. territorial seas. For all other shipments, title to Products shall pass to Buyer the earlier of (i) the port of export immediately after Products have been cleared for export or (it) immediately after each item departs from the territorial land, seas and overlying airspace of the sending country. When Buyer arranges the export or intercommunity shipment, Buyer will provide Seller evidence of exportation or interconununity shipment acceptable to the relevant tax and custom authorities. Notwithstanding the foregoing, Seller grants only a license, and does not pass title, for any software provided by Seller under this Contract, and title to any leased equipment remains with Seller. 4.3 Risk of loss shall pass to Buyer upon delivery pursuant to Section 4, 1, except that for export shipments from the U.S., risk of loss shall transfer to Buyer upon title passage. 4A If any Products to be delivered under this Contract or if any Buyer equipment repaired at Seller's facilities cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer or its other contractors, Seller may ship the Products and equipment to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Seller places Products or equipment into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred, (it) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller s invoices; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products and repaired equipment available to Buyer for delivery. 4.5 If repair Services are to be performed on Buyers equipment at Seller s facility, Buyer shall be responsible for, and shall retain risk of loss of such equipment at all times, except that Seller shall be responsible for damage to the equipment while at Seller's facility to the extent such damage is caused by Seller's negligence. 5. Warranty 5.1 Seller warrants that Products shall be delivered free from defects in material, workmanship and title and that Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. 5.2 The warranty for Products shall expire one (1) year from fast use or eighteen (18) months from delivery, whichever occurs first, except that software is warranted for ninety (90) days from delivery. The warranty for Services shall expire one (1) year after performance of the Service, except that software -related Services are warranted for ninety (90) days. 5.3 If Products or Services do not meet the above warranties, Buyer shall promptly notify Seller in writing prior to expiration of the warranty period Seller shall (i) at its option, repair or replace defective Products and (ii) re -perform defective Services. If despite Seller's reasonable efforts, a non -conforming Product cannot be repaired or replaced, or non -conforming Services cannot be re -performed. Seller shall refund or credit monies paid by Buyer for such non- conforming Products and Services. Warranty repair, replacement or re -performance by Seller shall not extend or renew the applicable warranty, period. Buyer shall obtain Seller's agreement on the specifications of any tests it plans to conduct to determine whether a non-conformance exists. 5.4 Buyer shall bear the costs of access for Seller's remedial warranty efforts (including removal and replacement of systems, structures or other parts of Bu) er's facility), de -installation, decontamination, re -installation and transportation of defective Products to Seller and back to Buyer. 5.5 The warranties and remedies are conditioned upon (a) proper storage, installation, use, operation, and maintenance of Products, (b) Buyer keeping accurate and complete records of operation and maintenance during the warranty period and providing Seller access to those records, and (c) modification or repair of Products or Services only as authorized by Seller in writing. Failure to meet any such conditions renders the warranty null and void. Seller is not responsible for normal wear and tear. 5.6 This Article 5 provides the exclusive remedies for all claims based on failure of or defect in Products or Services, regardless of when 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 5 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. NO E%IPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES. 6. Confidentiality 6.1 Seller and Buyer (as to information disclosed, the "Disclosing Party") may each provide the other party (as to information received, the "Receiving Party") with Confidential Information in connection with this Contract. "Confidential Information" means (a) information that is designated in writing as "confidential" or 'proprietary" by Disclosing Party at the time of written disclosure, and (b) information that is orally designated as "confidential" or "proprietary" by Disclosing Party at the time of oral or visual disclosure and is confirmed to be 'confidential' or "proprietary"' in writing within twenty (20) days after the oral or visual disclosure. In addition, prices for Products and Services shall be considered Seller's Confidential Information. 6.2 Receiving Party agrees: (i) to use the Confidential Information only in connection with the Contract and we of Products and Services, (it) to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party. Notwithstanding these restrictions, (a) Seller may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Contract, (b) a Receiving Party may disclose Confidential Information to its auditors, (c) Buyer may disclose Confidential Information to lenders m necessary for Buyer to secure or retain financing needed to perform its obligations under the Contract, and (d) a Receiving Party may disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non- disclosure commitment from any such subcontractors, auditors, lenders or other permitted third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible for any unauthorized rue or disclosure of the Confidential Information. Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Contract entitles Receiving Party to retain an item of Confidential Information. Seller may also retain one archive copy of Buyer's Confidential Information, 6.3 The obligations under this Article 6 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party 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 or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality, of the Confidential Information. 6.4 Each Disclosing Party warrants that it has the right to disclose the information that it discloses. Neither Buyer nor Seller shall make any public announcement about the Contract without prior written approval of the other party. As to any individual item of Confidential Information, the restrictions under this Article 6 shall expire five (5) years after the date of disclosure. Article 6 does not supersede any separate confidentiality or nondisclosure agreement signed by the parties. 7. Intellectual Property 7.1 Seller shall defend and indemnify Buyer against any claim by a non-affiliated third party (a -Claim') alleging that Products or Services furnished under this Contract infringe a patent in effect in the U.S., an EU member state or the country of the Site (provided there is a corresponding patent issued by the U.S. or an EU member state), or any copyright or trademark registered in the country of the Site, provided that Buyer (a) promptly notifies Seller in writing of the Churn, (b) makes no admission of liability and does not take any position adverse to Seller, (c) gives Seller sole authority to control defense and settlement of the Claim, and (d) provides Seller with full disclosure and reasonable assistance as required to defend the Claim 7.2 Section 7.1 shall not apply and Seller shall have no obligation or liability with respect to any Claim based upon (a) Products or Services that have been modified, or revised, (b) the combination of any Products or Services with other products or services when such combination is a basis of the alleged infringement, (c) failure of Buyer to implement any update provided by Seller that would have prevented the Claim, (d) unauthorized use of Products or Services, or (e) Products or Services made or performed to Bu} er's specifications. 7.3 Should any Product or Service, or any portion thereof, become the subject of a Claim, Seller may at its option (a) procure for Buyer the right to continue using the Product or Service, or applicable 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 infringing Products or Services and refund the price received by Seller attributable to the infringing Products or Services. 7.4 Article 7 states Seller's exclusive liability for intellectual property infringement by Products and Services. 7.5 Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Contract. All new intellectual property conceived or created by Seller in the performance of this Contract, whether alone or with any contribution from Buyer, shall be owned exclusively by Seller. Buyer agrees to deliver assignment documentation as necessary to achieve that result. S. Indemnity Each of Buyer and Seller (as an "Indemnifying Party") shall indemnify the other party (as an 'Indemnified Part}") from and against claims brought by a third party, on account of personal injury or damage to the third party's tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Seller, the loss or expense shall be home by each party in proportion to its degree of negligence. For purposes of Sellers indemnity obligation, no part of the Products or Site is considered third party property. 9. Insurance During the term of the Contract, Seller shall maintain for its protection the following insurance coverage: (i) Workers Compensation, Employer's Liability and other statutory insurance required by law with respect to work related injuries or disease of employees of Seller in such form(s) and amount(s) as required by applicable laws; (ii) Automobile Liability insurance with a combined single limit of $2,500,000.00; and (iii) Commercial General Liability or Public Liability insurance for bodily injury and property damage with a combined single limit of $2,500,000.00. If required in the Contract, Seller shall provide a certificate of insurance reflecting such coverage. 10. Excusable Events Seller shall not be liable or considered in breach of its obligations under this Contract to the extent that Seller's performance is dellved or prevented, directly or indirectly, by any cause beyond its reasonable control, or by armed conflict, acts or threats of terrorism, epidemics, strikes or other labor disturbances, or acts or omissions of any governmental authority or of the Buyer or Buyer`s contractors or suppliers. If an excusable event occurs, the schedule for Seller's performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. If acts or omissions of the Buyer or its contractors or suppliers cause the delay, Seller shall also be entitled to an equitable price adjustment. 11. Termination and Suspension 11.1 Buyer may terminate the Contract (or the portion affected) for cause if Seller (i) becomes Insolvent/Bankrupt, or (ii) commits a material breach of the Contract 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 temuinate the Contract, and (b) Seller shall have failed, within 30 days after receipt of the notice, to commence and diligently pursue cue of the breach. 11.2 If Buyer terminates the Contract pursuant to Section 11.1, (i) Seller shall reimburse Buyer the difference between that portion of the Contract Price allocable to the terminated scope and the actual amounts reasonably incurred by Buyer to complete that scope, and (n) Buyer shall pay to Seller (a) the portion of the Contract Price allocable to Products completed, (b) lease fees incurred and (c) amounts for Services performed before the effective date of termination. The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at Seller's then -current standard time and material rates. 11.3 Seller may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if Buyer (i) becomes Imolvent/Bankrupt, or (ii) materially breaches the Contract, including, but act limited to, failure or delay in Buyer providing Payment Security, making anypayment when due, or fulfilling any payment conditions. 11.4 If the Contract (or any portion thereof) is terminated for any reason other than Seller's default under Section 11.1, Buyer shall pay Seller for all Products completed, lease fees incurred and Services perfomned before the effective date of temnination, plus expenses reasonably incurred by Seller in connection with the termination- The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (far work toward milestones not yet achieved and where there is no milestone schedule), Page 7 of II as applicable or, where there are no milestones and/or rates in the Contract, at Seller s then -current standard time and material rates. In addition, Buyer shall pay Seller a cancellation charge equal to 800/. of the Contract Price applicable to uncompleted made -to -order Products and 15% of the Contract Price applicable to all other uncompleted Products. 11.5 Either Buyer or Seller may terminate the Contract (or the portion affected) upon twenty (20) days advance notice if there is an excusable event (as described in Article 10) lasting longer than one hundred and twenty (120) days. In such case, Buyer shall pay to Seller amounts payable under Section 11.4, excluding the cancellation charge for uncompleted Products. 11.6 Buyer shall pay all reasonable expenses incurred by Seller in connection with a suspension, including, but not limited to, expenses for repossession, fee collection, demobilization/remobilization, and costs of storage during suspension. The schedule for Seller s obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension. 12. Compliance with Laws, Codes and Standards 12A Seller shall comply with laws applicable to the manufacture of Products and its performance of Services. Buyer shall comply with laws applicable to the application, operation, use and disposal of the Products and Services. 12.2 Seller's obligations are conditioned upon Buyer's compliance with all U.S. and other applicable trade control laws and regulations. Buyer shall not trans -ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by Buyer and specified as the country of ultimate destination on Seller's invoice. 12.3 Notwithstanding any other provision, Buyer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import licenses, environmental impact assessments, and foreign exchange authorizations, required for the lawful performance of Services at the Site or fulfillment of Buyer's obligations, except that Seller shall obtain any license or registration necessary for Seller to generally conduct business and visas or work permits, if any, necessary for Seller's personnel. Buyer shall provide reasonable assistance to Seller in obtaining such visas and work permits. 13. Environmental, Health and Safety Matters 13.1 Buyer shall maintain safe working conditions at the Site, including, without limitation, implementing appropriate procedures regarding Hazardous Materials, confined space entry, and energization and de-energizetion of power systems (electrical, mechanical and hydraulic) using safe and effective lock-out/tag-out ("LOTO') procedures including physical LOTO or a mutually agreed upon alternative method. 13.2 Buyer shall timely advise Seller in writing of all applicable Site -specific health, safety, security and environmental requirements and procedures. Without limiting Buyer's responsibilities under Article 13, Seller has the right but not the obligation to, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the Site. 13.3 If, in Seller "s reasonable opinion, the health, safety, or security of personnel or the Site is, or is apt to be, imperiled by security risks, terrorist acts or threats, 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 Site, suspend performance of all or any part of the Contract, and/or remotely perform or supervise work. Any such occurrence shall be considered an excusable event. Buyer shall reasonably assist in any such evacuation. 13.4 Operation of Buyer's equipment is the respomibiliw of Buyer Buyer shall not require or permit Seller's personnel to operate Buy er's equipment at Site. 13.5 Buyer will make its Site medical facilities and resources available to Seller personnel who need medical attention. 13.6. Seller has no responsibility or liability for the pre-existing condition of Bu)er's equipment or the Site. Prior to Seller starting any work at Site, Buyer will provide documentation that identifies the presence and condition of any Hazardous Materials existing in or about Buyer's equipment or the Site that Seller may encounter while performing under this Contract. Buyer shall disclose to Seller industrial hygiene and environmental monitoring data regarding conditions that may affect Seller's work or personnel at the Site. Buyer shall keep Seller informed of changes in any such conditions. 13.7 Seller shall notify Buyer if Seller becomes aware of (i) conditions at the Site differing materially from those disclosed by Buyer, or (it) previously unknown physical conditions at Site differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. If any such conditions cause an increase in Seller's cost of, or the time required for, performance of any part of the work under the Contract, an equitable adjustment in price and schedule shall be made. 13.8 If Seller encounters Hazardous Materials in Buyer's equipment or at the Site that require special handling or disposal, Seller is not obligated to continue work affected by the hazardous conditions. In such an event, Buyer shall eliminate the hazardous conditions in accordance with applicable laws and regulations so that Seller's work under the Contract may safely proceed and Seller shall be entitled to an equitable adjustment of the price and schedule to compensate for any increase in Seller's cost of, or time required for, performance of any part of the work. Buyer shall properly store, transport and dispose of all Hazardous Materials introduced, produced or generated in the course of Seller's work at the Site. 13.9 Buyer shall indemnify Seller for any and all claims, damages, losses, and expenses arising out of or relating to any Hazardous Materials which are or were (i) present in or about Buyers equipment or 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 Site by parties other than Seller. 14. Changes 14.1 Each party may at any time propose changes in the schedule or scope of Products or Services. Seller is not obligated to proceed with any change until both parties agree upon such change in writing. The written change documentation will describe the changes in scope and schedule, and the resulting changes in price and other provisions, as agreed 14.2 The scope, Contract Price, schedule, and other provisions will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change, after Seller's proposal date, in Buyers Site -specific requirements or procedures, or in industry specifications, codes, standards, applicable laws or regulations. However, no adjustment will be made on account of a general change in Seller's manufacturing or repair facilities resulting from a change in laws or regulations applicable to such facilities. Unless otherwise agreed by the parties, pricing for additional work arising from such changes shall be at Sellers time and material rates. 14.3 It shall be acceptable and not considered a change if Seller delivers a Product that bears a different, superseding or new part or version number compared to the part or version number listed in the Contract. 15. Limitations of liability 15.1 The total liability of Seller for all claims of any kind arising from or related to the formation, performance or breach of this Contract, or any Products or Services, shall not exceed the (i) Contract Price, or (ii) if Buyer places multiple order(s) under the Contract, the price of each particular order for all claims arising from or related to that order and ten thousand US dollars (US $10,000) for all claims not part of any particular order. 15.2 Seller shall not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of capital, downtime costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claims of Buyer's customers for any of the foregoing types of damages. 15.3 All Seller liability shall end upon expiration of the applicable warranty, period, provided that Buyer may continue to enforce a claim for which it has given notice prior to that date by commencing an action or arbitration, as applicable under this Contract, before expiration of any statute of limitations or other legal time limitation but in no event later than one year after expiration of such warranty period. 15.4 Seller shall not be liable for advice or assistance that is not required for the work scope under this Contract. 15.5 If Buyer is supplying Products or Services to a third party, or using Products or Services at a facility owned by a third party, Buyer shall either (i) indemnify and defend Seller from and against any and all claims by, and liability to, any such third parry in excess of the limitations set forth in this Article 15, or (ii) require that the third party agree, for the benefit of and enforceable by Seller, to be bound by all the limitations included in this Article 15. 15.6 For purposes of this Article 15. the term "Seller' means Seller, its affiliates, subcontractors and suppliers of any tier, and their respective employees. The limitations in this Article 15 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tofUextra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict Seller's liability. 16. Governing Law and Dispute Resolution 16.1 This Contract shall be governed by and construed in accordance with the laws of (i) the State of New York if Buyer's place of business is in the U.S_ or (ii) England if the Buyer's place of business is outside the U.S., in either case without giving effect to any choice of law rules that would came the application of laws of any other jurisdiction (the "Governing Law'). If the Contract includes the sale of Products and the Buyer is outside the Seller's country, the United Nations Convention on Contracts for the International Sale of Goods shall apply. 16.2 All disputes arising in connexion with this Contract, including any question regarding its existence or validity, shall be resolved in accordance with this Article 16. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management, to be held within twenty (20) business days after the giving of notice. If the dispute is not resolved within thirty (30) business days after the giving of notice, or such later date as may be mutually agreed either party may commence arbitration or court proceedings, depending upon the location ofthe Buyer, in accordance with the following: (a) if the Buyer's pertinent place of business is in the U.S, legal action shall be commenced in federal court with jurisdiction applicable to, or state court located in, either Cobb County, Georgia or the location of Buyers principal place of business; or (b) if the Buyer's pertinent place of business is outside the U.S., the dispute shall be submitted to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce ("ICC'). The number of arbitrators shall be one, selected in accordance with the ICC rules, unless the amount in dispute exceeds the equivalent of U.S. $5,000,000, in which event it shall be three. When three arbitrators are involved, each party shall appoint one arbitrator, and those two shall appoint the third within thirty (30) days, who shall be the Chairman. The seat, or legal place, of arbitration, shall be London, England. The arbitration shall be conducted in English. In reaching their decision, the arbitrators shall give full force and effect to the intent of the parties as expressed in the Contract, and if a solution is not found in the Contract, shall apply the governing law of the Contract. The decision of the arbitrator(s) shall be final and binding upon both parties, and neither parry shall seek recourse to a law court or other authority to appeal for revisions of the decision- 16 3 Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Contract, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth in Article 6 and/or the nuclear use restrictions set forth in Section 19.1, or to seek interim or conservatory measures. Monetary damages shall only be available in accordance with Section 16.2. 17. Inspection and Factory Tests Seller will apply its normal quality control procedures in manufacturing Products. Seller shall attempt to accommodate requests by Buyer to witness Seller's facton• tests of Products, subject to appropriate access restrictions, if such witnessing can be arranged without delaying the work. 18. Software, Leased Equipment, Remote Diagnostic Services, PCB Services If Seller provides any softwwe to Buyer, the Software License Addendum shall apply. If Seller leases any of Seller's equipment or provides related Services to Buyer, including placing Seller's equipment at Buyer's site to provide remote Services, the Lease Addendum shall apply. If Seller provides remote diagnostic services to Buyer, the Remote Diagnostic Services Addendum shall apply. If Seller provides PCB Services to Buyer, the PCB Services Addendum shall apply. If there is any conflict between these' Terms and Conditions for the Sale of Products and Services, Form ES 104" and the terms of any addendum incorporated pursuant to this Article 18, the terms of the addendum shall take precedence with respect to the applicable scope. Page 8 of ll 19. General Clauses 19.1 Products and Services sold by Seller are not intended for use in connexion with any nuclear facility or activity, and Buyer warrants that it shall not use or permit others to use Products or Services for such purposes, without the advance written consent of Seller. If, in breach of this, any such use occurs, Seller (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, and, in addition to any other rights of Seller, Buyer shall indemnify and hold Seller (and its parent, affiliates, suppliers and subcontractors) harmless against all such liability. Consent of Seller to any such use, if any, will be conditioned upon additional terms and conditions that Seller determines to be acceptable for protection against nuclear liability. 19.2 Seller may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or may assign any of its accounts receivable under this Contract to any part without Buyer's consent. Buyer agrees to execute any documents that may be necessary to complete Sellers assignment or novation. Seller ma}' subcontract portions of the work, so long as Seller remains responsible for it. The delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without Seller's prior written consent (uhich consent shall not be unreasonably withheld) shall be void. 19.3 Buyer shall notify Seller immediately upon any change in ownership of more than fifty percent (50%) of Buyer's voting rights or of any controlling interest in Buyer. If Buyer fails to do so or Seller objects to the change, Seller may (a) terminate the Contract, (b) require Buyer to provide adequate assurance ofperformance (including but not limited to payment), and/or (c) put in place special controls regarding Seller's Confidential Information. 19A If any Contact provision is found to be void or unenforceable, the remainder of the Contract shall not be affected The parties will endeavor to replace any such void or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid and enforceable. 19.5 The following Articles shall survive termination or cancellation of the Contract: 2, 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, 15, 16, 18, 19 and 20. 19.6 The Contract represents the entire agreement between the parties. No oral or written representation or warranty not contained in this Contract shall be binding on either party. Buyer's and Seller's rights, remedies and obligations arising from or related to Products and Services sold under this Contract are limited to the rights, remedies and obligations stated in this Contract. No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing. 19.7 Except as provided in Article 15 (Limitations of Liability) and in Section 19.1 (no nuclear use), this Contract is only for the benefit of the parties, and no third party shall have a right to enforce any provision of this Contract, whether under the English Contracts (Rights of Third Parties) Act of 1999 or otherwise. 19.8 This Contract may be signed in multiple counterparts that together shall constitute one agreement. 20. US Government Contracts 20.1 This Article 20 applies only if the Contract is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government. 20.2 Buyer agrees that all Products and Services provided by Seller meet the definition of "commercial-off-the-shelff ("COTS") or "commercial item" as those terns are defined in Federal Acquisition Regulation ("FAR") 2. 101. To the extent the Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Contract, the country of origin of Products is unknown unless otherwise specifically stated by Seller in this Contract. Buyer agrees any Services offered by Seller are exempt from the Service Contract Act of 1965 (FAR 52,222-41). Buyer represents and agrees that this Contract is not famded in whole or in part by American Recovery Reinvestment Act fads unless otherwise specifically stated in the Contract. The version of any applicable FAR clause listed in this Article 20 shall be the one in effect on the effective date of this Contract. 20.3 If Buyer is an agency of the U.S. Government, then as permitted by FAR 12.302, Buyer agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with these Terms and Conditions. Buyer further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price. 20.4 If Buyer is procuring the Products or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Buyer agrees that FAR 52.212-5(e) or 52,244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price. FORM ES10S (REV 3): SOFTWARE LICENSE NOTICE — READ THIS CAREFULLY: THIS IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU AND LICENSOR. BY INSTALLING THE SOFTWARE, YOU AGREE TO ALL THE TERMS AND CONDITIONS OF THIS SOFTWARE LICENSE ("LICENSE"). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT INSTALL THE SOFTWARE. YOU MAY RETURN THE SOFTWARE, ALL MANUALS, DOCUMENTATION AND PROOF OF PAYMENT TO LICENSOR WITHIN 30 DAYS OF PURCHASE FOR A FULL REFUND. 1. Definitions. Unless otherwise agreed to by Licensor, the following terms shall mean: "Derivative Works" includes but is not limited to (a) any work based upon one or more pre-existing works, such as a revision, enhancement, modification, translation, abridgement, condensation, expansion, extension or any other form in which such pre-existing works may be recast, transformed, or adapted, and that, if prepared without the authorization of the owner of the copyright to such pre-existing works, would constitute a copyright infringement, and/or (b) any compilation that incorporates such pre-existing works. For Software, Documentation, and Third Party Software (as defined below), Derivative Works also includes any and all corrections, bug fixes, and updates to the Software, Documentation, Third Party Software, and Derivative Works, but does not include any Licensee or Licensee -funded third party developments, provided such developments only make "calls" of the Software, Third Party Software or Derivative Works thereof or "object requests" that reference or cause execution of the base Software, Third Party Software, and/or Derivative Works thereof. "Documentation" means all material, including all printed material and on-line or electronic documentation (excluding training materials), referencing Software and Third -Party Software provided hereunder. "Licensee" means the entity to which Licensor is providing Software, Documentation, or Third -Party Software. "Software" means Licensor's proprietary computer software and software security devices provided by Licensor under this License - "Third -Party Software" means any proprietary computer software owned by a third party that Licensor may provide to you hereunder. 2. License Grant. 2.1 Subject to the terms of this License, Licensor hereby grants to you a non-transferrable and nonexclusive license to use Software and Documentation, including upgraded, modified or enhanced versions provided by Licensor, and to use Third -Party Software, all for your internal business purposes only. 2.2 You have no right to (i) lease, rent, transfer, distribute, sublicense, timeshare, or allow third parties to access Software, Documentation, or Third -Party Software, nor assign any rights hereunder to a third party without Licensor's prior, written agreement; (ii) disassemble, decompile, reverse engineer, or otherwise attempt to reconstruct or discover the source code of the Software or Third -Party Software; (iii) pledge Software or Third -Party Software as collateral or otherwise, or encumber such Software or Third -Party Software with any lien or security interest; or (iv) remove any product identification, copyright, trademark, or other notice from Software, Documentation or Third -Party Software. If you believe that you are entitled to reverse engineer Software as a matter of local law (e.g., the Council Directive of May 14, 1991, of the Council of the European Communities, as amended), you agree that you shall first request technical information from Licensor. You shall use any technical information delivered by Licensor only for purposes of ensuring "interoperability" and compatibility and shall treat such technical information as Proprietary Information (defined below). Any reverse engineering of Software shall void any warranties or indemnification obligations of Licensor and shall automatically release Licensor from any obligation to provide support services under this or any separate agreement. 2.3 Certain software Licensor provides to you may contain Third -Party Software, including but not limited to "open source" software. Use of Third -Party Software and its source code may be governed by separate copyright notices and license provisions, which may be found or identified in Documentation or on the media delivered with Software and which are incorporated by reference into this License. You shall not modify or combine Software and/or any Third -Party Software in any manner that could cause, or could be interpreted or asserted to cause, Software or any modifications thereto to become subject to the terms of any license applicable to Third Party Software. 2.4 Unless otherwise agreed to by Licensor or specified in an Exhibit attached hereto, you shall only have the right to install and use a single copy of Software and Third -Party Software on a single computer workstation for use by a single user. 2.5 You may make one (1) copy of Software, Documentation, and Third -Party Software for backup purposes only. You must reproduce and include all proprietary rights and copyright notices on any backup copies. Except as authorized under this License, no copies of Software, Documentation, or Third -Party Software may be made by you or any third parry; provided, however, you may print on-line Software documentation for its own internal use, provided the maximum number of copies may not exceed the number of users licensed hereunder. 3. Support Services; Upgrades. This License does not obligate Licensor to provide maintenance and support on any Software or Third -Parry Software licensed hereunder. Support services are available under separate agreement. If Software is an upgrade of a previous version (provided such upgrade was obtained under a separate support services agreement with Licensor or a Licensor authorized distributor), you may use the upgraded Software only in accordance with this License. 4. Verification. During the term of this License and for 3 years thereafter, Licensor may upon reasonable notice require that an independent audit of the use of Software and Third - Party Software be conducted during your normal business hours. Upon such notice, you shall provide Licensor's independent auditor site access and the right to inspect relevant portions of your computer system on which Software and Third -Party Software resides. You agree to pay promptly: (a) all underpaid license fees and (b) if the underpayment is more than 5% of the license fees paid before audit, all audit costs and expenses. S. Term and Termination. 5.1 Software, Documentation, and Third -Party Software shall be considered accepted by you upon receipt. 5.2 This License is effective until terminated. Licensor may terminate this License immediately if you fail to comply with any of the terms and conditions herein. Upon termination, you shall (a) cease using Software, Documentation, and Third -Parry Software and (b) certify to Licensor within one (1) month of the termination that you have destroyed or returned to Licensor the Software, Documentation, and Third -Party Software, and all copies thereof. 6. Ownership. 6.1 All Software, Documentation, and Third -Party Software are licensed and not sold. You agree that Licensor and its suppliers own all proprietary rights, including, but not limited to any patent, copyright, trade secret, trademark, and other proprietary rights, in and to Software, Documentation, and Third -Party Software, including any Derivative Works thereof regardless of the source of development, including but not limited to cases where Licensee engages a third party to perform such development and any corrections, bug fixes, and updates to such Software, Documentation, Third -Party Software, or Derivative Works. 6.2 Therefore, to the extent that any Derivative Works of Licensor's proprietary Software or of Third Party Software supplied by Licensor is developed, Licensee hereby (a) agrees that the intellectual property rights to such Derivative Works are automatically vested in Licensor (or its affiliates, in Licensor's sole discretion) or in the owner of Third Party Software, as applicable, and may be used by Licensor (or the or the owner of any Third Party Software Derivative Works) without limitation and without any obligation to Licensee on behalf of Licensor and/or such other relevant owner; (b) irrevocably transfers and assigns to Licensor all intellectual property rights, moral rights, title, and interest throughout the world in and to any such Derivative Works, including, but not limited to, all rights in and to any inventions and designs embodied in such Derivative Works or its associated technology; (c) agrees and forever waives any right to assert any claim contrary to (a) and (b) in this Article 6.2; and (d) agrees to take all steps necessary to fulfil the requirements as set forth in this Article 6.2 for any such Derivative Works whether developed by Licensee or by any third party under Licensee's direction. Even if by operation of law such rights are not automatically transferred and assigned as provided above, Licensee shall execute and deliver such instruments and take such other action as may be requested by Licensor to perfect and protect Licensor's (or Third Party Software owner's) rights in any Derivative Works and to carry out the assignments effected by Article 6. 6.3 Notwithstanding the foregoing, Licensor grants Licensee a "right to use" license to any Software or Third Party Software Derivative Works for internal business purposes only under the same terms and conditions that apply to Software, Documentation, or Third Parry Software under Article 2 herein. 6.4 For the purposes of Article 6, the term "Licensor" shall mean Licensor, its affiliates, and their successors or assigns. 7. Limited Warranties. 7.1 Licensor warrants, for your benefit alone, that under normal use the media in which Software is embedded shall be free from defects in material and workmanship, for a period of ninety (90) days from the date of delivery of the initial Software ("Warranty Period"). 7.2 Licensor warrants, for your benefit alone, that during the Warranty Period, Software will perform substantially in accordance with its Documentation. If, during the Warranty Period, an Error occurs (where "Error" is defined as a problem caused by an incorrect operation of the unmodified computer code in Software or an incorrect statement or diagram in Documentation that produces incorrect results), Licensor will use commercially reasonable efforts to correct such Error, provided you furnish Licensor with the following: (a) written notice of the warranty claim, including a description of the failure to perform in accordance with Documentation and a specific description of the operating conditions (including the specific software/hardware configuration) under which the failure occurred, and (b) to the extent feasible, a representative sample of inputs for repeating and analysing the failure. If Licensor is unable, after commercially reasonable efforts, to correct the Error, your sole remedy shall be termination of this License and a refund of the license fees allocable to the specific nonconforming Software that have been paid by you to Licensor hereunder. 7.3 Article 7 provides the exclusive remedies for all claims based on failure of or defect in Software and Documentation, whether the failure or defect arises before, during, or after the applicable Warranty Period and whether a claim, however described, is based on contract, warranty, indemnity, tort/extracontractual liability (including negligence), strict liability, or otherwise. The warranties provided in Article 7 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied, or statutory. NO IMPLIED GE CenJiderntia'and Proprietary —September 2009 Fage 9 of Il STATUTORY WARRANTY OR CONDITION OF MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES. WITHOUT LIMITING THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE SOFTWARE OR DOCUMENTATION (OR YOUR USE THEREOF) WILL BE FREE FROM ALL ERRORS OR ITS USE WILL BE UNINTERRUPTED. 7.4 Any remedial steps taken by Licensor hereunder shall not extend the applicable Warranty Period. 7.5 Except as expressly authorized by Licensor in writing, all Third -Party Software shall carry only the warranties provided by the owners thereof and Licensor gives no warranties for such Third -Party Software. B. Proprietary Information; Equitable Relief. 8.1 All information concerning or embedded in Software (including but not limited to source code and training materials), Documentation, and Third -Party Software is confidential and shall be considered Licensor's (or its suppliers') proprietary information ("Proprietary Information") whether or not the information is marked as Proprietary Information. Proprietary Information includes commercially valuable, substantial trade secrets, the design and development of which reflect the effort of skilled development experts and investment of considerable amounts of time and money. 8.2 You acknowledge: (a) any use of Software, Documentation, or Third -Party Software in a manner inconsistent with this License or (b) any other misuse of Proprietary Information of Licensor (or its suppliers), will cause immediate irreparable harm to Licensor (or its suppliers) for which there is no adequate remedy at law. You agree that Licensor (or its suppliers) shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such misuse or threatened misuse by you. The parties agree and stipulate that Licensor shall be entitled to such injunctive relief without posting of a bond or other security; provided, however, that if the posting of a bond is a prerequisite to obtaining injunctive relief, then a bond in an amount equivalent to U.S. $1,000 shall be sufficient. Nothing contained herein shall limit Licensor's right to any remedies at law, including the recovery of damages from you for breach of this License. 9. Compliance With Laws. You understand and recognize that Software, Documentation, and Third -Party Software made available to you hereunder are subject to all U. S. and other applicable trade control laws and regulations. You hereby agree that you will not tranship, re-export, divert, or direct Software, Documentation, or Third -Party Software, other than in and to the ultimate country of destination specified on your order or declared as the country of ultimate destination on Licensor's invoice. 10. limitation of Liability. 10.1 The total liability of Licensor, for all claims arising out of or relating to the performance or breach of this License or use of any Software, Documentation, and Third -Party Software, shall not exceed the price of the specific Software, Documentation, or Third -Party Software giving rise to the claim. Licensor's liability shall terminate upon the expiration of the applicable Warranty Period, provided that you may enforce a claim that accrued prior to that date by commencing an action or filing an arbitration, as applicable under Article 11, before the expiration of the applicable statute of limitations or repose, but not later than one year after the expiration of such warranty period. 10.2 Seller shall not be liable for loss of profit or revenues, loss of product, loss of use of Software, Documentation, or Third -Party Software or any associated equipment, interruption of business, cost of capital, cost of cover or replacement, downtime costs, increased operating costs claims of your customers for such damages, or for any special, consequential, incidental, indirect, punitive or exemplary damages. 10.3 Licensor shall not be liable for any advice or assistance that is not required under this License. 10.4 For the purposes of Article 10, the term "Licensor" shall mean Licensor, its affiliates, subcontractors and suppliers of any tier, and their respective agents and employees, whether individually or collectively. 10.5 The limitations and exclusions in Article 10 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. 10.6 Licensee's and Licensor's rights, obligations and remedies arising out of or relating to Software, Documentation, and Third -Party Software are limited to those rights, obligations and remedies described in this License. Article 10 shall prevail over any conflicting or inconsistent terms in the License, except to the extent that such terms further restrict Licensor's liability. 11. Dispute Resolution, Governing Law. 11.1 If you have your pertinent place of business in a country other than the U.S., any dispute arising out of or in connection with this License, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration ("LCIA") Rules, which Rules are incorporated by reference into this Article 11.1. The number of arbitrators shall be one unless the amount in dispute exceeds the equivalent of $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 thirty (30) days, who shall be the Chairman. The single arbitrator or the Chairman may not be a national or resident of 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 the English language. In reaching their decision, the arbitrators shall give full force and effect to the intent of the parties as expressed in this License, and if a solution is not found herein, shall apply the governing law of this License. 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 such decision. 11.2 If you have your pertinent place of business in the U.S. any claim, legal action or proceeding (including without limitation claims for set-off or counterclaim) regarding the dispute arising out of or in connection with this License, shall be brought in the U.S. District Court for the Northern District of Georgia, or in the event that court lacks jurisdiction to hear the claim, in the appropriate state courts of Cobb County, Georgia, and the parties irrevocably consent to the exclusive jurisdiction of such courts in respect of all such claims. Each party hereby submits to and accepts generally and unconditionally the jurisdiction of those courts with respect to its respective person and property, and irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery to the party or by the mailing thereof by registered or certified mail, postage prepaid to the other party at the address for the party. 11.3 Notwithstanding the terms above, each party has the right at any time, at its option and where legally available, to commence an action or proceeding in a court of competent jurisdiction to apply for interim or conservatory measures, but not monetary damages. 11.4 The validity, performance and all matters relating to the interpretation and effect of this License and all further documents executed pursuant to it shall be construed and interpreted in accordance with the laws of (i) the State of New York, U.S., if you have your pertinent place of business in the U.S. or (ii) England and Wales if you have your pertinent place of business outside of the U.S., excluding its rules on the conflict or choice of laws. If you have your pertinent place of business outside of the U.S., the United Nations Convention on Contracts for the International Sale of Goods shall apply. 12. Intellectual Property Indemnification. 12.1 Licensor shall indemnify you against any damages, costs and expenses arising out of any suit, claim, or proceeding (a "Claim") alleging that Software or Documentation infringes 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) you promptly notify Licensor in writing of any such Claim; (b) you make no admission of liability and gives Licensor sole authority, at Licensor's expense, to direct and control all defense, settlement, and compromise negotiations; and (c) you provide Licensor with full disclosure and assistance that may be reasonably required to defend any such Claim. 12.2 Licensor shall have no obligation or liability with respect to any Claim based upon: (a) any Software or Documentation that has been altered, modified, or revised; (b) the combination, operation, or use of any Software or Documentation with other products or services when such combination is part of any allegedly infringing subject matter; (c) failure of you to implement any update provided by Licensor that would have prevented the Claim; or (d) unauthorized use of Software or Documentation, including, without limitation, a breach of the provisions of this License. 12.3 Should any Software or Documentation, or any portion thereof, become the subject of a Claim, Licensor may at its option (a) procure for you the right to continue using Software or Documentation, 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 Software or Documentation and refund any fees received by Licensor attributable to the infringing Software or Documentation. 12.4 This states Licensor's entire liability for indemnification for intellectual property rights infringement for Software or Documentation. You waive any moral rights. 12.5 Notwithstanding the foregoing, with respect to any Third -Party Software, or portions thereof, only the indemnity of the manufacturer/developer, if any, shall apply. 13. General Clauses. 13.1 Software and Third -Party Software licensed hereunder are not intended for use in connection with any nuclear facility or activity without the written consent of Licensor. You warrant that you shall not use, or permit others to use Software or Third -Party Software for such purposes, unless Licensor agrees to such use in writing. If, in breach of the foregoing, any such use occurs, Licensor disclaims all liability for any nuclear or other damages, injury or contamination and in addition to any other legal or equitable rights of Licensor, you shall indemnify and hold Licensor harmless against any such liability. If Licensor agrees in writing to any such nuclear use, Licensor's special terms and conditions for nuclear applications and protections against nuclear liability shall be attached and incorporated fully herein by reference. 13.2 Licensor may assign or novate its rights and obligations under this License, in part or in whole, to any of its affiliates or may assign any of its account receivables under this License to any third party without your consent. You agree to execute such documents as may be necessary to effect the assignment or novation. The delegation or assignment by you of any or all of your duties or rights under this License without Licensor's prior written consent shall be void. GE Confidential and Fropnetory — September 2009 Page 10 of, 1 13.3 If any provision of this License is found to be void or unenforceable the remainder of this License shall not be affected and the parties hereby agree that they will replace any such void or unenforceable provision with a new provision that achieves substantially the same practical or economic effect and which is valid and enforceable. 13.4 This License represents the entire agreement between the parties, and no modification, amendment or waiver shall be binding on either party unless agreed in writing by the parties' authorized representatives. 13.5 For direct and indirect U.S. government contracts and/or contracts funded in whole or in part by the American Recovery and Reinvestment Act (ARRA) only, all Software, Documentation and Third -Party Software provided hereunder shall be considered "commercial items" as defined in FAR Part 2, 2.101 and in accordance with FAR 52.244-6. To the full extent permitted under FAR Part 12, the terms and conditions of FAR 52.212-4 are replaced by the Terms and Conditions set forth in this License. Therefore, no governmental contracting provisions, standards or requirements, including without limitation those relating to cost accounting and the Truth -in -Negotiations Act, shall apply except those expressly accepted in writing by Licensor. If the reasonableness of the price cannot be established, if cost or pricing data is required for any other reason, or if the Software, Documentation or Third -Party Software cannot be considered "commercial items," or if the License is funded in whole or part by ARRA funds and Licensee does not so notify Licensor in writing prior to Licensor agreeing to the transaction, Licensor may withdraw the proposal or cancel this License without penalty or other liability and be reimbursed for work performed to date. 13.6 Upon request you agree to provide Licensor with a signed copy of this License. 6E Confidential and Propretary - Septemcer 2009 Pope 11 0' 1 1