1. Equipment. Seller hereby sells the “Units” described in Exhibit A to Buyer, and Buyer hereby purchases and accepts the Units subject to these General Terms and Conditions for Equipment Purchase. The “Purchase Price” for all of the Units being purchased is the amount set forth on the “Cover Page,” which is the document signed by the Parties to which this Exhibit B is attached. The Cover Page, together with all attached Exhibits, is collectively referred to as the “Agreement.” Exhibit A may designate certain Units as “Evaluation Units,” which means: Units intended solely for product and/or software developers for use in a research and development setting to facilitate feasibility evaluation, experimentation, or scientific analysis. Evaluation Units may have no direct function and shall not be used in production applications, or production test platforms, or as test equipment. Buyer may use Evaluation Units for field testing (i.e. to evaluate Buyer’s application) only with Seller’s advance written permission. Evaluation Units are not intended for any other uses.
2. Effective Date. The “Effective Date” of this Agreement is the last date on which a Party signed the Cover Page.
3. Place of Delivery. The “Place of Delivery” under this Agreement is set forth on the Cover Page, provided, however, that if (a) the Cover Page fails to specify a Place of Delivery or (b) the Cover Page specifies a Place of Delivery but the Buyer requests storage of the Units as addressed in Section 13 below, then the Place of Delivery shall automatically be deemed to be the Seller’s address set forth on the Cover Page.
4. Delivery Date. The “Estimated Delivery Date” under this Agreement is set forth on the Cover Page. Seller shall use reasonable efforts to meet the Estimated Delivery Date, but Seller shall have no responsibility or liability for damages, losses, or expenses related to any delay in delivery. The “Actual Delivery Date” shall be the earlier of (a) the date on which all Units have been made available at the Place of Delivery and (b) the date on which Buyer requests storage of the Units as further described in Section 13 below. Units may be delivered in multiple deliveries.
5. Applicability, Offer and Acceptance. The Units are for commercial use only and not intended for personal or consumer use. Buyer may offer to buy Units and, in the case of Evaluation Units, may offer to buy and/or take delivery, under these terms by submitting an order or other form of proposal to Seller. Seller may accept or reject any order at Seller’s sole discretion. Where Buyer submits an order, Seller’s order confirmation (whether by email or otherwise) is for informational purposes only and does not constitute Seller’s acceptance of Buyer’s order or confirmation of an offer to sell and/or deliver any Unit(s). Acceptance takes place only when Seller sends a duly executed Cover Page to this Agreement. Such acceptance only relates to those Units listed on Exhibit A of this Agreement. Prior to both Seller and Buyer executing the Cover Page to this Agreement and delivering such signed Cover Page to the other Party, Seller may, at any time, decline, reject, cancel, or limit Buyer’s order for any reason, including: if a Unit is not available; if Seller determines a Unit has an issue requiring repair; in the event of errors in item or pricing information; or if Seller (or its authorized business partners) identify issues relating to credit and fraud avoidance. Should this occur, Buyer will be informed and the payments/deposits Buyer has made with respect to such Units, if any, will be refunded to Buyer.
6. Sole Terms. The terms in this Agreement are the sole terms governing Seller’s sale or provision of Units to Buyer. Seller’s acceptance of Buyer’s offer is expressly limited to these terms. Seller hereby objects to and rejects any additional or different terms proposed by Buyer, including any contained in Buyer’s purchase order, unless Seller expressly agrees to such terms in a duly executed amendment to this Agreement.
7. Prices. Where applicable, Seller communicates pricing to customers in various ways (e.g., quotes) and confirms transaction prices with a duly executed Cover Page to this Agreement setting forth such prices in Exhibit A thereto. Prior to execution of the Agreement, Seller’s price may change due to adjustments in specifications, quantities, shipment arrangements, requested delivery dates, or other changes to conditions. The final price stated in Exhibit A to the duly executed Agreement applies. Unless otherwise agreed, prices are in U.S. Dollars and payment must be in U.S. Dollars.
8. Risk of Loss and Title Transfer.
8.1 Risk of Loss Generally. Subject to Section 8.2 below, all risk of loss and damage shall be in accordance with the Incoterm 2020 specified on the Cover Page. If the Cover Page fails to specify an Incoterm 2020, then Units will be delivered FCA (Incoterms 2020), Place of Delivery. If (a) Seller incurs freight, insurance, import/export duties, taxes or other costs on Buyer’s behalf in respect of Units after delivery of such Units at the Place of Delivery and (b) Seller is not responsible for such amounts pursuant to the Incoterm applicable to this Agreement, then Buyer shall promptly reimburse Seller for such amounts. Unless otherwise provided herein, Buyer is the importer of record and is responsible for all import duties, taxes, and any other expenses incurred or licenses or clearances required. Buyer shall be responsible for insuring the Units at all times after risk of loss and damage transfers from Seller to Buyer pursuant to this Agreement against such risks as Buyer considers appropriate. Buyer shall note the Seller’s interest in the Units on the applicable insurance policy and shall produce a certificate to such effect to Seller upon request.
8.2 Risk of Loss During Storage. Notwithstanding anything to the contrary in this Agreement, if Buyer requests storage of the Units by Seller as described in Section 13 below, then risk of loss and damage to the Units shall transfer to the Buyer upon the earlier to occur of: (a) Seller’s receipt of payment in full for the Units; and (b) the Seller making available the Units at the Place of Delivery.
8.3 Transfer of Title. Title to the Units shall transfer to the Buyer upon payment in full of Seller’s final invoice.
9. Security Interest. Until Buyer has paid the full Purchase Price and all invoices for other charges incurred by Buyer on behalf of Seller (freight, insurance, import/export duties, and/or taxes), Buyer hereby grants Seller, for itself and as collateral agent on behalf of each of Seller’s related entities, a security interest in (i) all present and future Units sold or delivered by Seller to Buyer; (ii) all present and future books and records, including, without limitation, books of account and ledgers, computer programs, computer software, and data relating to Buyer or to any personal property subject to a security interest granted herein; and (iii) all proceeds, whether now owned and existing or hereafter acquired or arising, including: (A) all rents, issues, royalties, and profits of or from any of the foregoing, (B) all personal property now or hereafter received by Buyer upon the sale, exchange, lease, transfer, or other disposition
of any of the foregoing, and (C) any amounts now or hereafter payable under any insurance policy by reason of any loss or damage to any of the foregoing or any proceeds thereof to secure the prompt and unconditional payment and performance by Buyer of all indebtedness, obligations, debts, and liabilities owed to Seller. Buyer agrees, upon request by Seller, to execute promptly any documents and perform any other acts at Buyer’s sole expense that Seller deems necessary or advisable to confirm, continue and/or perfect the security interests granted in this Section. In addition to and not in limitation or derogation of the foregoing, Buyer hereby irrevocably authorizes Seller to execute and file any one or more financing statements covering all personal property subject to the security interests granted in this Section.
10. Cancellations and Rescheduling. Except to the extent set forth on the Cover Page, Buyer may request cancellation or rescheduling of Unit orders only according to the following terms:
< 30 Days before Estimated Delivery Date: Not allowed
30-90 Days before Estimated Delivery Date: Not allowed
> 90 Days before Estimated Delivery Date Requires Seller approval
11. Taxes. Prices do not include any taxes including sales, value-added tax, goods and services tax or similar taxes. Seller will add taxes to the sales price on its invoices where required by applicable law, and Buyer will pay such taxes unless Buyer provides Seller with a duly executed sales tax exemption certificate before invoicing. If Buyer is required by law to withhold any amount of tax from its payment to Seller, Buyer will take all reasonable steps to minimize such withholding tax, provide Seller with a receipt or certificate as evidence the tax has been paid, and reimburse Seller for the amount of withholding so that Seller receives payment for the full value of the invoice.
12. No Setoff. Buyer’s obligation to pay the Purchase Price and other amounts under this Agreement is absolute and unconditional and is not subject to any abatement, counterclaim, defense, deferment, interruption, recoupment, reduction, or setoff for any reason whatsoever.
13. Payments. No later than three (3) days after the Effective Date, Buyer shall pay to Seller the amount of the initial payment of the Purchase Price set forth on the Cover Page. The balance of the Purchase Price set forth on the Cover Page, together with applicable freight, insurance, import/export duties, applicable taxes, and similar charges shall be invoiced prior to the Actual Delivery Date. Seller’s payment terms will be specified on the invoice, however, where they are not then, payment is due seven (7) Days after Seller’s invoice date. Notwithstanding any provision of this Agreement, the Seller shall have no obligation to deliver any Units until such final invoice has been paid in full. In the event that Buyer requests storage of Units by Seller, Seller is entitled to invoice Buyer for the Units on the date of such request. Costs of arranging and providing any requested storage of the Units shall be as mutually agreed between Buyer and Seller. In no event shall Seller bear any responsibility for storing the Units unless and until it has received payment in full for the Units and has agreed in writing to store the Units on behalf of Buyer. All payments shall be made in US dollars by wire transfer of immediately available funds in accordance with the wire transfer instructions provided by Seller from time-to-time. If a payment under this Agreement becomes due and payable on a Saturday, Sunday, or any day on which commercial banks located in Houston, Texas are authorized or required by applicable law to be closed for business (any other day, a “Business Day”), then Buyer shall make such payment on the next succeeding Business Day.
14. Late Payments. If Buyer fails to make payment when due, Seller and its affiliates may suspend or cancel performance under any agreements, including delay or cancellation of delivery on any open orders. Seller will not be liable for, and Buyer will hold Seller harmless from, any costs or losses resulting from suspension or cancellation on account of Buyer’s failure to make payment. Buyer may not deduct any payment amounts on account of unresolved disputes. Seller may charge Buyer 1.5% per month on overdue accounts (18% per year) to the extent permitted by law.
15. Unit Warranty.
15.1 If any Unit fails to function due to a defect in such Unit within the first twelve (12) months after the Actual Delivery Date, Buyer shall return such defective Unit to Seller, and Seller shall promptly send Buyer a repaired or replacement Unit (in each case, as Buyer’s sole and exclusive remedy for a defective Unit). EXCEPT FOR THE PRECEDING, THE UNITS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS” AND SELLER MAKES NO WARRANTY WHATSOEVER, AND HEREBY DISCLAIMS, ALL OTHER WARRANTIES, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY AGAINST INTERFERENCE; OR (D) WARRANTY AGAINST INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADEMARK, TRADE SECRET, OR OTHER PROPRIETARY RIGHTS OF A THIRD PARTY; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
15.2 Notwithstanding any provision in this Agreement, Seller will not be liable for replacing or repairing any nonconforming Unit if:
(a) the nonconformity was caused by neglect, misuse, or mistreatment, failure to properly maintain, improper storage, improper installation or testing, usage of Evaluation Units, failure to follow instructions set forth for any Units, or Units that were altered or modified in any way by an entity other than Seller;
(b) the nonconformity resulted from Buyer’s design, specifications, or instructions for such Units or Buyer’s improper system design; or
(c) where applicable, Buyer has not paid on time.
15.3 Testing and other quality control techniques are used to the extent Seller deems necessary. Seller does not necessarily test all parameters of each Unit.
15.4 Seller may provide Buyer technical, applications, or design advice (including reference designs), quality characterization, reliability data, or other services. Buyer agrees that providing these services does not expand or otherwise alter Seller’s warranties as set forth in this Section 15 and no additional obligations or liabilities arise from Seller providing such services or items.
15.5 Buyer’s claims against Seller under this Section 15 warranty are void if Buyer fails to notify Seller of any apparent defects in the Unit within ten (10) Business Days after delivery, or of any hidden defects within ten (10) Business Days after the defect has been detected.
16. Representations and Warranties. The Seller represents and warrants that immediately prior to the conveyance of the Units to the Buyer pursuant to this Agreement, that the Seller was the sole owner thereof and had good title thereto, free of any lien. Each Party represents and warrants for the benefit of the other Party that:
16.1 such Party is duly organized, validly existing, in good standing, and duly licensed and qualified to do business under applicable law;
16.2 such Party has full corporate power and authority to enter into this Agreement, carry out its obligations hereunder, and consummate the transactions contemplated hereby and that this Agreement has been duly executed and delivered by such Party, and constitutes a legal, valid, and binding obligation of such Party enforceable against it in accordance with its terms;
16.3 the execution, delivery, and performance by such Party of this Agreement will not require the consent of any party, result in any lien on any Unit, or conflict with the organizational documents of such Party, any provision of applicable law, or any instrument by which such Party is bound; and
16.4 there are no actions pending or threatened against or by such Party challenging the transactions contemplated by this Agreement and no circumstances exist that may give rise to such an action.
17. Buyer’s Covenants. Buyer agrees that until all amounts payable under this Agreement have been paid in full and all other obligations hereunder have been performed in full, Buyer shall comply with the covenants in this Section 17.
17.1 If requested by Seller, Buyer has delivered complete and accurate copies of any financial information requested by the Seller, in each case, fairly presenting the financial condition and operations of Buyer’s business as of the dates such statements and information were prepared.
17.2 Buyer shall comply with all applicable law.
17.3 Buyer shall not operate or permit the operation of any Unit in an unsafe or improper manner and in accordance with all manuals and instructions provided by Seller.
17.4 Buyer shall pay, and indemnify, defend, and hold Seller harmless from, all assessments, license fees, and sales, use, property, excise, and other taxes and charges (other than gross or net income taxes) arising out of or in connection with any one or more of this Agreement, the consummation of the transactions contemplated herein, or the shipment, possession, ownership, use, delivery, or operation of any Unit(s).
18. Maintenance. Buyer shall be solely responsible for all maintenance and repair of the Units.
19. Loss. Subject to Sections 8.1 and 8.2 above, upon delivery for shipment of the Units to Buyer, Buyer shall bear all risk of loss, damage, destruction, theft, taking, confiscation, or requisition, partial or complete, of or to such Unit or its use, however caused or occasioned (“Loss”). Irrespective of whether Seller obtains insurance on behalf of Buyer, the Buyer shall bear the risk of Loss.
20. Default.
20.1 Each of the following events is an “Event of Default” under this Agreement: (a) Buyer fails to pay any portion of the Purchase Price or any other amount under this Agreement when due; (b) Buyer defaults in the observance or performance of any other term, covenant, or condition of this Agreement, on Buyer’s part to be observed or performed; (c) Buyer’s interest or any portion thereof in this Agreement devolves on or passes to any other party, whether by operation of law or otherwise; (d) Buyer (i) becomes insolvent, (ii) is generally unable to pay, or fails to pay, its debts as they become due, (iii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy, (iv) makes or seeks to make a general assignment for the benefit of its creditors, or (v) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property or business; (e) Buyer sells, transfers, or disposes of all or substantially all of its assets or the property of its business, or merges or consolidates with any other entity; or (f) any representation contained in this Agreement is untrue as and when made.
20.2 If an Event of Default occurs, Seller may, in its sole discretion, exercise one or more of the following remedies: (a) declare this Agreement in default; (b) terminate this Agreement in whole or in part; (c) take possession of any Unit wherever it may be located, without demand or Notice, without any court order or other process of law, and without liability to Buyer for any damages occasioned by such action; (d) proceed to enforce performance by Buyer of this Agreement and/or to recover all damages and expenses incurred by Seller by reason of any Event of Default; (e) sell any or all of the Units at public or private sale, with or without notice to Buyer or advertisement, or otherwise dispose of, hold, use, operate, lease, or keep idle such Units, and without any duty to account to Buyer for such action or inaction or for any proceeds with respect thereto, and apply the net proceeds thereof (after deducting all expenses, including legal fees and costs, incurred in connection therewith) to the amounts owed to Seller under this Agreement, provided, however, that Buyer shall remain liable to Seller for any deficiency that remains after any sale or the disposition of such Units; and (f) exercise any other right or remedy available to Seller at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
20.3 Upon any material breach of this Agreement by Seller, Buyer shall promptly provide to Seller Notice (as defined below) identifying the provision(s) that have been breached by Seller, the facts surrounding such breach, and Buyer’s intention to terminate the Agreement. If any material breach of this Agreement occurs and if Seller fails to correct such condition within thirty (30) days of receipt of Buyer’s Notice, Buyer may, without prejudice to
any other right or remedy it may have, terminate this Agreement by issuance of a second Notice.
21. BUYER’S GENERAL INDEMNITY.
21.1 BUYER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER, ITS SUCCESSORS AND ASSIGNS, AND ITS AFFILIATES AND THEIR SUCCESSORS AND ASSIGNS AND THE RESPECTIVE DIRECTORS, OFFICERS, MANAGERS, MEMBERS, EMPLOYEES, CONSULTANTS, FINANCIAL ADVISORS, COUNSEL, ACCOUNTANTS, AFFINITY MARKETERS, DISTRIBUTORS, DEALERS, AND OTHER AGENTS OF SELLER, ITS SUCCESSORS AND ASSIGNS, SELLER’S AFFILIATES, AND THEIR SUCCESSORS AND ASSIGNS (COLLECTIVELY, “INDEMNITEES”) AGAINST ANY AND ALL LOSSES, INJURY, DEATH, DAMAGES, LIABILITIES, CLAIMS, DEFICIENCIES, ACTIONS, JUDGMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATSOEVER KIND AND NATURE, INCLUDING REASONABLE ATTORNEYS’ FEES AND THE COST OF ENFORCING ANY RIGHT TO DEFENSE OR INDEMNIFICATION UNDER THIS AGREEMENT AND THE COST OF PURSUING ANY INSURANCE PAYMENTS FOR ANY OF THE FOREGOING INCURRED BY INDEMNITEES RELATING TO, ARISING OUT OF, OR IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, PROVIDED, HOWEVER, THE BUYER’S INDEMNIFICATION OBLIGATION SHALL BE PROPORTIONATELY REDUCED TO THE EXTENT THAT THE INDEMNITEES’ OWN NEGLIGENCE CAUSED SUCH CLAIM OR LOSS, WITH SUCH DETERMINATION OF RESPONSIBILITY BEING EXCLUSIVELY MADE PURSUANT TO THE ARBITRATION PROVIDED FOR IN SECTION 24.20. FOR EXAMPLE, IF BUYER PAID $100,000 TO INDEMNITEES AND THEN AN ARBITRATION PURSUANT TO SECTION 24.20 FOUND THAT AN INDEMNITEE’S NEGLIGENCE CONTRIBUTED 25% TO SUCH LOSS, THEN SELLER WOULD HAVE TO REPAY $25,000 TO BUYER.
22. LIMITATIONS ON SELLER’S LIABILITY.
22.1 INSURANCE; WAIVER OF SUBROGATION. BUYER AGREES THAT SELLER IS NOT AN INSURER AND THAT SELLER IS NOT PROVIDING BUYER WITH INSURANCE OF ANY TYPE. IF BUYER WANTS INSURANCE TO PROTECT AGAINST ANY RISK OF LOSS OF BUYER’S LIFE, PROPERTY, OR ANYONE ELSE’S LIFE OR PROPERTY, THEN BUYER BEARS SOLE RESPONSIBILITY FOR OBTAINING SUCH INSURANCE. IN THE EVENT OF ANY LOSS, DAMAGE OR INJURY, BUYER WILL LOOK EXCLUSIVELY TO BUYER’S INSURER (IF ANY) AND NOT TO SELLER TO COMPENSATE BUYER OR ANYONE ELSE FOR SUCH EVENT OR LOSS. BUYER RELEASES AND WAIVES FOR BUYER AND BUYER’S INSURER (IF ANY) ALL SUBROGATION AND OTHER RIGHTS TO RECOVER AGAINST SELLER ARISING AS A RESULT OF THE PAYMENT OF ANY CLAIM FOR LOSS, DAMAGE, OR INJURY ARISING OF OR RELATING TO THIS AGREEMENT.
22.2 NO GUARANTEE. THE UNIT(S), EQUIPMENT, SELLER’S SERVICES, AND/OR BUYER’S USE OF SELLER’S UNIT(S) AND SERVICES DO NOT CAUSE AND CANNOT ELIMINATE OCCURRENCES OF THE EVENTS THEY ARE INTENDED TO DETECT OR AVERT, INCLUDING FIRES, FLOODS, BURGLARIES, TORTS, ROBBERIES, ASSAULTS, ATTACKS, SHOOTINGS, AND OTHER CRIMINAL ACTIVITY, AND MEDICAL PROBLEMS. SELLER MAKES NO GUARANTY OR WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, THAT UNIT(S), SELLER’S SERVICES, AND/OR BUYER’S USE OF SELLER’S SERVICES WILL DETECT OR AVERT SUCH INCIDENTS OR THEIR CONSEQUENCES. BUYER ACKNOWLEDGES AND AGREES THAT IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO PREDICT, MITIGATE, OR CONTROL THE ACTUAL DAMAGES, IF ANY, WHICH MAY PROXIMATELY RESULT FROM A FAILURE OF SELLER TO PERFORM ANY OF THE OBLIGATIONS HEREIN OR A FAILURE OF THE UNIT(S) TO OPERATE BECAUSE OF, AMONG OTHER THINGS: THE UNCERTAIN AMOUNT OR VALUE OF BUYER’S PROPERTY OR THE PROPERTY OF OTHERS WHICH MAY BE LOST OR DAMAGED; THE UNCERTAINTY OF THE NUMBER OF PERSONS WHO WILL BE ON BUYER’S PREMISES AT ANY TIME; THE UNCERTAINTY OF THE RESPONSE TIME OF THE POLICE OR FIRE DEPARTMENT OR OTHER APPROPRIATE AGENCY; THE INABILITY TO ASCERTAIN WHAT PORTION, IF ANY, OF ANY LOSS WOULD BE PROXIMATELY CAUSED BY SELLER’S FAILURE TO PERFORM ANY OF ITS OBLIGATIONS OR FAILURE OF ITS UNIT(S) TO OPERATE; AND THE NATURE OF THE SERVICES TO BE PERFORMED BY SELLER.
22.3 NO LIABILITY FOR LOSS. IT IS UNDERSTOOD AND AGREED BY THE PARTIES HERETO THAT SELLER IS PROVIDING A SYSTEM OR PORTION OF A SYSTEM DESIGNED TO REDUCE THE RISK OF LOSS; THAT THE PAYMENTS AND MAXIMUM LIABILITY LIMITATIONS PROVIDED HEREIN ARE BASED SOLELY ON THE VALUE OF THE UNITS AS DESCRIBED HEREIN AND ARE UNRELATED TO THE VALUE OF ANY PROPERTY LOCATED ON BUYER’S PREMISES; THAT SELLER IS NOT LIABLE FOR LOSSES WHICH MAY OCCUR IN CASES OF FUNCTION, MALFUNCTION, OR NONFUNCTION OF THE UNIT(S) OR OF THE MONITORING, REPAIRING, OR SIGNALING OF THE UNIT(S), EVEN IF DUE TO SELLER’S NEGLIGENCE OR FAILURE OF PERFORMANCE.
22.4 COVENANT NOT TO SUE. SELLER DOES NOT UNDERTAKE AND HEREBY DISCLAIMS ANY AND ALL RISK OF INJURY, DEATH, DAMAGE, OR LOSS HEREUNDER WHATSOEVER, WHETHER TO PERSONS OR PROPERTY OR BUYER OR OF ANY THIRD PARTY(IES). AS BETWEEN SELLER AND BUYER, SUCH RISK REMAINS SOLELY WITH BUYER. BUYER RELEASES, WAIVES, DISCHARGES AND PROMISES NOT TO SUE OR BRING ANY CLAIM OF ANY TYPE AGAINST ANY INDEMNITEES FOR ANY LOSS, DAMAGE, DEATH, OR INJURY RELATING IN ANY WAY TO THE UNIT(S) OR THE SERVICES PROVIDED BY SELLER.
22.5 EXCLUSIVE REMEDY. IT IS IMPRACTICAL AND EXTREMELY DIFFICULT TO DETERMINE THE ACTUAL DAMAGES, IF ANY, THAT MAY RESULT FROM A FAILURE BY SELLER TO PERFORM ANY OF ITS OBLIGATIONS. UNDER NO CIRCUMSTANCES WILL BUYER ATTEMPT TO HOLD SELLER LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, DEATH, OR DAMAGES TO PROPERTY. IF, NOTWITHSTANDING THE PROVISIONS OF THIS SECTION 22, SELLER IS FOUND LIABLE FOR LOSS, DAMAGE, OR INJURY UNDER ANY LEGAL THEORY RELATING IN ANY WAY TO THE SERVICES PROVIDED BY SELLER AND/OR UNIT(S), THEN AS BUYER’S SOLE REMEDY FOR ANY SUCH LIABILITY, SELLER’S LIABILITY TO BUYER SHALL BE LIMITED TO THE GREATER OF (I) A SUM EQUAL TO THE TOTAL AMOUNT PAID BY BUYER TO SELLER FOR SUCH UNIT(S) AND (II) $10,000. THE PARTIES AGREE THAT THE FOREGOING AMOUNTS ARE NOT A PENALTY AND ARE A REASONABLE ESTIMATE OF THE ACTUAL LOSSES THAT WILL OCCUR UPON BREACH. UPON BUYER’S REQUEST, SELLER MAY AGREE TO ASSUME LIABILITY BEYOND WHAT IS PROVIDED FOR IN THIS SECTION 22 BY ATTACHING AN EXHIBIT TO THIS AGREEMENT SETTING FORTH THE EXTENT OF SELLER’S HIGHER MAXIMUM LIABILITY LIMIT AND THE ADDITIONAL CHARGES TO BUYER FOR SUCH HIGHER LIMIT.
22.6 APPLIES IN ALL CASES. THE PROVISIONS OF THIS SECTION 22 APPLY NO MATTER HOW THE LOSS, DAMAGE, INJURY, OR OTHER CONSEQUENCE OCCURS, EVEN IF DUE TO THE PERFORMANCE
OR NONPERFORMANCE BY SELLER OF ITS OBLIGATIONS UNDER THIS AGREEMENT OR FROM NEGLIGENCE (ACTIVE OR OTHERWISE), STRICT LIABILITY, VIOLATION OF ANY APPLICABLE CONSUMER PROTECTION LAW OR ANY OTHER THEORY OF LIABILITY OR ALLEGED FAULT ON THE PART OF SELLER, ITS AGENTS OR ITS EMPLOYEES.
22.7 TIME TO BRING CLAIM OR SUIT. NO SUIT OR ACTION SHALL BE BROUGHT AGAINST SELLER AFTER THE EARLIER TO OCCUR OF (I) ONE YEAR AFTER THE DATE OF THE LOSS, OR (II) THE SHORTEST TIME ALLOWED BY APPLICABLE LAW.
22.8 BENEFIT TO OTHERS. THE PROVISIONS OF THIS SECTION 22 SHALL APPLY TO AND BENEFIT SELLER AND ITS AGENTS, EMPLOYEES, CONTRACTORS, SUBSIDIARIES, DEALERS, AFFILIATES, PARENTS (BOTH DIRECT AND INDIRECT), AFFINITY MARKETERS, THIRD PARTY SERVICE PROVIDERS OR DEVICE(S) PROVIDERS, AND ALL OTHER PARTNERS USED BY SELLER IN PROVIDING THE SERVICES TO BUYER.
23. Seller’s Performance of Buyer’s Obligations. If Buyer is in default or an Event of Default has occurred and is continuing, Seller may, in its sole discretion, make any payment or perform any obligation on behalf of Buyer (e.g., Buyer’s failure to pay freight charges or import duties) or take any action that Seller in its sole discretion deems necessary to maintain and preserve any or all Units and Seller’s interests therein. Seller’s payment, performance of such obligation, or taking of such action shall not be a waiver by Seller of any default or Event of Default or a release of Buyer by Seller. Buyer shall pay immediately on demand to Seller all sums so paid by Seller and any expenses (including legal fees and costs) incurred by Seller in connection with Seller’s payment, performance of such obligation, or taking of such action.
24. Miscellaneous.
24.1 Subject to any limitations and other provisions contained in this Agreement, the representations, covenants and agreements of Buyer contained herein, including Buyer’s obligations under Section 21 and 22, survive indefinitely.
24.2 Each Party shall deliver all notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (“Notice” or “Notify”) in writing and addressed to the other Party at its address set forth on the Cover Page (or to such other address as the receiving Party may designate from time to time in accordance with this Section 24.2) by (i) personal delivery, nationally recognized overnight courier (with all fees pre-paid) or (ii) email of a PDF document (with confirmation of transmission). A Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section 24.2.
24.3 The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement. The words include or including always mean “including, without limitation.” Dollars or $ means United States dollars.
24.4 If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
24.5 This Agreement, together with all related exhibits and schedules, constitutes the sole and entire agreement of the Parties hereto with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
24.6 No amendment to or rescission, termination, or discharge of this Agreement is effective unless it is in writing, identified as an amendment to or rescission, termination, or discharge of this Agreement and signed by an authorized representative of each Party to this Agreement.
24.7 No waiver under this Agreement is effective unless it is in writing, identified as a waiver under this Agreement and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated and does not operate as a waiver on any future occasion. Neither any failure or delay in exercising any right, remedy, power, or privilege, or in enforcing any condition under this Agreement, nor any act, omission, or course of dealing between the Parties constitutes a waiver or estoppel with respect to any right, remedy, power, privilege, or condition arising from this Agreement.
24.8 All rights and remedies of Seller provided in this Agreement are cumulative and not exclusive, and the exercise by Seller of any right or remedy does not preclude the exercise by Seller of any other rights or remedies that may now or subsequently be available to Seller at law, in equity, by statute, in any other agreement between the Parties, or otherwise.
24.9 Buyer acknowledges that a breach or threatened breach by Buyer of any of its obligations under this Agreement would give rise to irreparable harm to Seller for which monetary damages would not be an adequate remedy and hereby agrees that in the event of a breach or a threatened breach by Buyer of any such obligations, Seller will, in addition to any and all other rights and remedies that may be available to Seller in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
24.10 Buyer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 24.10 is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
24.11 This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
24.12 Subject to the final sentence of this Section 24.12, this Agreement benefits solely the Parties and their respective successors and permitted assigns and nothing in this
Agreement, express or implied, confers on any other party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason hereof. The Parties hereby designate the Indemnitees other than Seller as third-party beneficiaries of Section 21, having the right to enforce Section 21.
24.13 This Agreement and all exhibits and schedules attached hereto, and all matters arising out of or relating hereto, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the State of Texas, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Texas.
24.14 Exports, re-exports, and transfers of Units may be subject to export controls and sanctions. Buyer acknowledges and agrees that: (i) it will comply with all applicable laws and regulations; (ii) Units may not be exported, re-exported, sold or transferred to embargoed, sanctioned, or restricted destinations, persons, or entities without first obtaining any necessary governmental authorization; and (iii) it will provide notice of these compliance obligations to any party obtaining Units from Buyer. Unless any necessary United States and other applicable government authorizations are obtained in advance, Buyer may not export, re-export, transfer, purchase, or sell any Unit: (i) for a military end use; (ii) to a military end user; or (iii) for the design, development, fabrication, or use of nuclear, chemical, or biological weapons or missile technology. For additional information, see Part 744 of the U.S. Export Administration Regulations. Buyer shall, at its own expense, secure export and import authorizations necessary to fulfill its obligations under this Section 24.14. Buyer will indemnify and hold Seller (including its agents and representatives) harmless against any damages, costs, losses, and/or liabilities arising out of any Buyer non-compliance with this section. If any required authorization cannot be obtained, or in the event Buyer breaches this Section 24.14, Seller may terminate, cancel, or otherwise be excused from any obligations that it may have under this contract. Unit classifications are for Seller’s convenience only and shall not be construed as a representation or warranty of any kind; Buyer is responsible for its own compliance obligations. This section will survive any termination or expiration of this contract.
24.15 If Buyer intends to use Units in the performance of a United States Government contract or subcontract subject to Federal Acquisition Regulation (FAR), Buyer agrees to comply with the commercial-item subcontractor flow-down provisions identified in FAR 52.244-6 (July 2021) to the extent such provisions apply to the types of Units provided to Buyer. Unless otherwise agreed in writing by an authorized Seller representative, no other FAR provisions, FAR supplement provisions, or other government procurement rules will apply to Seller by virtue of any sale of provision of Seller’s goods and services. Specifically, and without derogation to the foregoing limitation, Seller will not provide, and no submission should be deemed as providing, certified cost or pricing data, and Seller will not be subject to provisions governing cost allowability, cost accounting, and/or audit rights that may be found in Buyer’s U.S. Government contract or subcontract. Seller technical data and computer software are generally developed at Seller’s private expense and not in performance of a United States Government contract. Seller asserts and should be understood by Buyer and the United States Government as retaining proprietary rights in all technical data and computer software provided to Buyer under a government contract. Unless separately and expressly agreed in writing by an authorized Seller representative, neither the United States Government nor any higher-tier contractor under a government contract will obtain any rights in Seller technical data and computer software beyond the rights provided to Seller’s commercial customers for such technical data and computer software.
24.16 This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
24.17 No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted Party’s (“Impacted Party”) control, including the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency and (g) other similar events beyond the control of the Impacted Party. The Impacted Party shall give Notice within three (3) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
24.18 Buyer agrees to execute, acknowledge, deliver, file, and record, or cause to be executed, acknowledged, delivered, filed, and recorded, such further documents or other papers and to do all such things and acts as Seller may request in furtherance of the provisions and purposes of this Agreement and the transactions contemplated hereby.
24.19 In the event of any dispute or disagreement arising out of or relating to the implementation or performance of this Agreement (including claims based in tort), either Party may provide a Notice to the other describing the nature of the dispute. Any dispute related to this Agreement shall be subject to the following dispute resolution process before a Party can proceed under Section 24.20:
(a) Officers’ Meeting. If the Parties have been unable to settle or agree upon a resolution within a period of thirty (30) days after the date of a Notice, each Party shall nominate a senior officer of its management and the officers shall meet at a mutually agreed time and place not later than forty-five (45) days after the Notice to attempt to resolve such dispute.
(b) Mandatory Mediation. If a resolution of the dispute is not obtained within seventy (70) Days after the date of the Notice, then either Party may invoke a mandatory mediation by sending a Notice requesting such mediation. Such mediation shall be governed by the AAA Construction Industry Arbitration Rules and Mediation Procedures which are in effect upon the date when mediation is requested by a Party, with a single mediator selected by mutual agreement of the Parties, or by the AAA if the Parties fail to reach agreement on a mediator within twenty (20) Business Days of the Notice requesting mediation. The mediation session shall be commenced within ninety (90) days of the selection of a mediator and shall be conducted virtually (e.g., TEAMs or Zoom) for one full day. At least one officer of each Party shall attend the mediation session, and the Parties shall use their commercially reasonable and good faith efforts to resolve the dispute. The costs of mediation will be shared equally by the Parties.
(c) Failure to Resolve Dispute. If the mediation fails to resolve the dispute or disagreement, or if the mediation fails to occur within ninety (90) days of selecting a mediator, then the Parties shall have the right to proceed with their remedies under Section 24.20.
24.20 AFTER SATISFACTION OF THE MANDATORY OFFICERS’ MEETING(S) AND MEDIATION(S) SET FORTH IN SECTION 24.19 (INCLUDING THE FAILURE OF THE MEDIATION TO OCCUR WITHIN 90 DAYS OF SELECTION OF A MEDIATOR), EITHER PARTY SHALL HAVE THE RIGHT TO SEEK REMEDIES IN ARBITRATION AS FOLLOWS:
(a) DISPUTES SHALL BE SUBMITTED TO BINDING ARBITRATION IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT AND THE COMMERCIAL ARBITRATION RULES OF THE AAA IN EFFECT AT THE TIME ARBITRATION IS COMMENCED, APPLYING THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS (EXCLUSIVE OF ANY PRINCIPLES OF CONFLICT OF LAWS WHICH WOULD REQUIRE APPLICATION OF THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION).
(b) ARBITRATION SHALL BE COMMENCED BY NOTICE. THE ARBITRATOR(S) SHALL BE NEUTRAL ARBITRATORS AND SHALL BE SUBJECT TO THE AAA RULES OF CONFLICTS AND DISCLOSURES. EACH PARTY SHALL CHOOSE ONE ARBITRATOR, WHICH TWO ARBITRATORS SHALL JOINTLY SELECT A THIRD ARBITRATOR.
(c) IN SELLER’S DISCRETION AND AT ITS SOLE OPTION, ANY ARBITRATION PURSUANT TO THIS SECTION 24.20 MAY BE JOINED OR CONSOLIDATED WITH ANY ARBITRATION INVOLVING ANY OTHER PERSON (I) NECESSARY TO RESOLVE THE CLAIM, DISPUTE, OR CONTROVERSY; OR (II) SUBSTANTIALLY INVOLVED IN OR AFFECTED BY SUCH CLAIM, DISPUTE, OR CONTROVERSY.
(d) EACH ARBITRATOR SHALL BE EITHER A FORMER JUDGE OR A PRACTICING ATTORNEY WITH AT LEAST TEN YEARS OF EXPERIENCE IN THE STATE OF TEXAS AND SHALL BE BOUND TO APPLY THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS TO DETERMINE THE OUTCOME OF THE ARBITRATION (EXCLUSIVE OF ANY PRINCIPLES OF CONFLICT OF LAWS WHICH WOULD REQUIRE APPLICATION OF THE SUBSTANTIVE LAWS OF ANOTHER JURISDICTION).
(e) THE ARBITRATORS SHALL HAVE NO AUTHORITY TO AWARD TREBLE, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY TYPE OR KIND REGARDLESS OF WHETHER SUCH DAMAGES MAY BE AVAILABLE UNDER ANY LAW OR RIGHT, WITH THE PARTIES HEREBY AFFIRMATIVELY AND IRREVOCABLY WAIVING THEIR RIGHTS, IF ANY, TO CLAIM OR RECOVER SUCH DAMAGES. THE ARBITRATORS SHALL HAVE NO AUTHORITY TO MAKE ANY AWARD IN EQUITY.
(f) THE ARBITRATION HEARING(S) SHALL TAKE PLACE IN HOUSTON, TEXAS.
(g) THE ARBITRATORS SHALL RENDER A DETAILED, WRITTEN AWARD WHICH SHALL BE FINAL AND BINDING ON THE PARTIES TO THE ARBITRATION, AND JUDGMENT UPON THE AWARD MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
(h) IN THE EVENT THAT A PARTY TO THE ARBITRATION FAILS TO MAKE PAYMENT OF THE FEES AND EXPENSES INVOICED TO THAT PARTY BY THE AAA AFTER OPPORTUNITY TO CURE, OR FAILS TO COMPLY WITH THE ORDERS OR INTERIM AWARDS OF THE ARBITRATORS, THE ARBITRATORS SHALL HAVE THE AUTHORITY TO ENTER A DEFAULT AWARD, IN WHOLE OR IN PART, AGAINST THAT PARTY WITH RESPECT TO ANY OF THE CLAIMS ASSERTED BY OR AGAINST THE DEFAULTING PARTY.