Cimarron Energy Inc.
and its Affiliates:
Flare Industries, Inc. d/b/a Aereon
and
HY-BON Engineering Co., Inc.
(a)
CONTRACTOR’s quotations are valid for thirty days (30) from the date of the quotation unless otherwise stated. The latest quotation shall supersede all others. CONTRACTOR’s quotations contain proprietary information (which is subject to Section 16 herein) and are provided to COMPANY with the understanding that the information will be used by COMPANY solely for purposes of internal evaluation and will not be disclosed to any third party.
(b)
COMPANY shall pay CONTRACTOR the prices and rates set forth in the applicable Order, or, absent an Order, pursuant to CONTRACTOR’S standard prices and rates. CONTRACTOR shall invoice COMPANY as agreed in the Order or, absent an Order, on a monthly basis for Work performed. COMPANY shall pay CONTRACTOR’s invoice in full within thirty (30) calendar days of the invoice date. Progress payments will apply to any COMPANY’s purchase(s) where the Order(s) total exceeds $100,000.00. Payment percentages shall be invoiced as follows: (i) 50% upon order acceptance and (ii) the final 50% prior to shipment. CONTRACTOR may invoice COMPANY upon completion of work to original specifications; if Change Order received after completion, charges may be invoiced separately. Partial shipments of parts issued under a single Order may be invoiced separately. If COMPANY defers delivery for more than 90 days after notice of readiness for shipment, CONTRACTOR may bill and hold, transferring title and risk of loss to COMPANY and charge COMPANY storage and preservation fees. Should COMPANY require CONTRACTOR to submit field tickets or sales invoices for approval prior to invoicing, COMPANY shall approve or deny within three (3) business days of presentation, or the same shall be deemed approved. Any disputes to CONTRACTOR’s invoice shall be made in writing within ten (10) days of receipt. Disputes do not affect payment terms for non-disputed amount, and payment of disputed amount shall be due no later than five (5) business days upon resolution.
(c)
If COMPANY fails to pay the amounts owed when due, COMPANY shall also CONTRACTOR interest from the due date to the date of payment at a rate equal to the lesser of (i) 18% per annum or (ii) the maximum rate permitted by applicable law. CONTRACTOR, at its sole discretion, and without incurring any liability, may suspend its performance until such time as the overdue payment is made or CONTRACTOR is provided assurances, adequate in CONTRACTOR’s sole discretion, that payment is forthcoming. In the event of such suspension, there shall be an equitable adjustment to the delivery schedule and Order price reflecting the duration and any increased cost. Payments shall not be subject to set-off. Lien waivers shall be contingent upon CONTRACTOR receiving in full all payments due. COMPANY shall also pay all collection costs and expenses including without limitation, reasonable attorneys’ fees.
2. General Commercial Clarifications:
(a)
Unit pricing includes the unit scope based on the technical specifications listed in the proposal, with any clarifications as noted.
(b)
Unit pricing offered is based on quantity and therefore subject to change.
(c)
Project Start Date is the date of “Order acceptance by both CONTRACTOR and COMPANY.
CONTRACTOR shall provide COMPANY a formal notification of Order acceptance. Deliverable timelines are based on Order acceptance date and subject to change as provided herein.
(d)
After Receipt of Order (“ARO”), is defined as the (i) date these Terms and Conditions ar agreed upon by CONTRACTOR and COMPANY and (ii) the Order is accepted by CONTRACTOR. Drawings are submitted for information only, no approval required from COMPANY for CONTRACTOR to commence fabrication unless otherwise stated.
(e)
After Receipt of Approved Drawings (“ARAD”), is defined as the date the COMPANY has approved fabrication level drawings for the products purchased as described in the proposal. The COMPANY is allowed five (5) business days to approve drawings after submission by CONTRACTOR or project delivery date(s) subject to adjustment.
(f)
Material Escalation: In the event of significant price increase of material during the performance of the contract through no fault of CONTRACTOR, the contract sum, time of completion or contract requirements shall be equitably adjusted and presented via Change Order to the COMPANY. A change in price of an item of material will be considered significant when the price of an item increases 10% percent between the date of Order acceptance and the date of material purchase to support quoted lead time. CONTRACTOR will provide evidence of quoted versus escalated purchase price and delivery.
(g)
Inspections: Unless noted otherwise, inspections by 3rd party or COMPANY are at COMPANY’s cost with at least five (5) business days’ notice. Hold points to be agreed upon prior to commencement of fabrication. Increased cost and delivery impact scope subject to Change Order.
(h)
Origin of Material Requirements: CONTRACTOR reserves the right to source material at its discretion when no Origin of Material Requirements stated in the Order.
(i)
COMPANY Free-Issued Items: All COMPANY free-issued items to be quality checked by CONTRACTOR. Price and lead time are subject to change due to delivery or quality issues.
(j) In the event there is a redundancy or inconsistency between any documents attached, referred to, or appended to a proposal, the scope included in the proposal controls.
(k) Additional Commercial Exclusions:
i. Sales tax, VAT, or duties.
ii. Embassy Legalization Costs.
iii. Spare part drawings and documentation.
iv. Freight costs and logistics offered at cost-plus 15% unless otherwise agreed.
v. CONTRACTOR strictly prohibits the sale or resale of its equipment in countries sanctioned by the United States Government.
vi. All documentation will be supplied in Acrobat pdf format.
vii. CONTRACTOR operating and maintenance manuals, quality dossiers, and drawings are provided in English. Text translation available at additional cost.
viii. CONTRACTOR will not be present at COMPANY meetings unless explicitly agreed in proposal.
ix. Spare parts quotation does not include cross sectional drawings, export packing or freight.
x. CONTRACTOR does not provide bank guarantees, performance bonds, or warranty bonds unless specifically agreed in proposal.
3. Shipping Terms; Termination; Change:
(a) The shipping terms for any goods shall be EX WORKS CONTRACTOR’S manufacturing facility (per the International Chamber of Commerce’s INCOTERMS 2020), unless otherwise agreed by CONTRACTOR in writing. Shipments made on COMPANY’s behalf shall be insured at COMPANY’s expense.
(b) If COMPANY sends written notice to cancel an Order, said notice will be effective upon receipt. COMPANY will be responsible for the total cost of the products produced to date. An additional cancellation charge of 50% of the unfilled order value will apply to orders manufactured to COMPANY specifications.
(c) Either Party may terminate an Order upon written notice to the other Party if the other Party has failed to cure a default within the appropriate cure period set forth in Section 8. Either Party may also terminate an Order upon written notice if the other Party (i) makes a general assignment for the benefit of its creditors; (ii) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it; (iii) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or (iv) has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or in insolvency covering all or substantially all of such Party’s property or providing for the liquidation of such Party’s property or business affairs, and such decree is not vacated within 60 calendar days.
(d) No material modification or change to the provisions to an Order Order (“Change Order”) shall be valid unless signed by both Parties. If any Change Order causes an increase in the cost, or the time required for performance, or otherwise affects any other provision of the Order an equitable adjustment shall be made.
4. Title to Certain Goods; Risk of Loss:
Title to all goods furnished by CONTRACTOR and incorporated or intended to be incorporated into the Work shall transfer to COMPANY upon full and complete payment to CONTRACTOR for such Work. Notwithstanding the foregoing, and subject to bill and hold provisions in Section 1(a), the risk of loss of such goods shall transfer to COMPANY upon delivery. Upon investment of title of the Work in and to COMPANY, the Work shall be the sole tangible personal property of the COMPANY. However, COMPANY’s rights in such Work do not include and specifically exclude any intangible or Intellectual Property Rights of CONTRACTOR or of any third party embodied, contained, referenced, described, or disclosed therein except as otherwise provided in this Section 4. However, CONTRACTOR grants to COMPANY a personal, perpetual, nonexclusive, worldwide, royalty free license to use the CONTRACTOR's Intellectual Property Rights embodied, contained, referenced, described, or disclosed in such Work solely for the purpose to operate and maintain the Work provided by CONTRACTOR pursuant to the Order. “Intellectual Property Rights,” for the purposes of Section 3, means all intellectual property rights, including patents, copyright, designs, trade or service marks, semiconductor topography rights, database rights, rights in confidential information, including know-how and trade secrets, moral rights or other similar rights in any country (all whether or not registered, including all applications for any of them and all equivalent rights in all parts of the world) and all rights of confidence, whenever and however arising for their full term and including renewals and extensions.
5. Limited Warranties:
(a)
Each Party represents and warrants that (i) it has the right, power, and authority to enter into the Order and to fully perform its obligations under such Order and (ii) it will comply with all applicable laws, regulations, rules, and orders in all material respects.
(b)
COMPANY warrants to CONTRACTOR that, during the term of the Order: (i) COMPANY, its employees, and its agents will fully cooperate with CONTRACTOR to provide CONTRACTOR, its employees, , vendors and its agents with all necessary and reasonable access to COMPANY’s premises and sites; and (ii) COMPANY’S operations will be conducted in a commercially safe and reasonable manner at all COMPANY premises and sites to which CONTRACTOR and its employees, CONTRACTOR’s, vendors and agents will need access in order to perform the Work.
(c)
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4(d), THE WORK SHALL BE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR DENIES AND DISCLAIMS ALL IMPLIED AND ALL STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUALITY OR NON-INFRINGEMENT AND ALL OTHER WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS SECTION 5. CONTRACTOR SHALL HAVE NO LIABILITY FOR THE DESIGN OR ENGINEERING OF THE WORK IF PERFORMED TO COMPANY SPECIFICATIONS OR DESIGN, EVEN IF CONTRACTOR PARTICIPATED IN ITS DEVELOPMENT, NOR FOR ANY COMPANY-FURNISHED MATERIALS. COMPANY ACKNOWLEDGES AND AGREES THAT COMPANY HAS SOLE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF THE WORK FOR ITS OPERATIONS.
(d)
CONTRACTOR warrants:
i.
With respect to goods, subject to the limitations contained herein, for a period of eighteen (18) months after the date of notice of availability for shipment of the goods, or one year after startup of the goods, whichever occurs first (the “Warranty Period”), such goods will be free from material defects in materials and workmanship and will conform to CONTRACTOR's published specifications.
ii.
The Warranty Period for services furnished by CONTRACTOR shall be ninety (90) days from completion of the services. CONTRACTOR refurbished equipment shall carry a ninety-day (90-day) limited warranty on specific components replaced with new materials, and related labor. Warranty shall run from the date of return shipment to COMPANY.
iii.
If during the Warranty Period any Work furnished by CONTRACTOR proves to be materially defective in material or workmanship, CONTRACTOR will, at CONTRACTOR’s discretion, either repair the Work or supply identical or substantially similar replacement parts EX WORKS manufacturing facility, or reperform the Work, if CONTRACTOR is notified of the defect in writing during the Warranty Period. Unless otherwise agreed in writing, any repaired or replacement parts will be warranted against defects in material or workmanship only for the unexpired portion of the original Warranty Period. CONTRACTOR will not be responsible for costs of making access to, or of export/import, shipment, removal, or installation of, any items needed to repair or replace defective Work. Routine maintenance-related or consumable items shall be outside the scope of this limited warranty. CONTRACTOR’s performance guarantees, if any, shall be deemed to be met by a satisfactory demonstration of the performance of the Work during a performance test, which shall be the responsibility of the COMPANY, pursuant to mutually agreed test procedures. If the performance test is not completed within forty-five (45) days after notice of availability for shipment of the Work, the performance test shall be deemed to be satisfactorily performed for all purposes. These limited warranties may, in CONTRACTOR’s sole discretion, be voided if: (i) CONTRACTOR, or CONTRACTOR’s certified subcontractor, was not utilized to confirm proper installation or commissioning of the Work, contributing to the defect (ii) COMPANY delayed commissioning of the Work after notice of readiness for delivery, leading to the alleged defect; (iii) the Work was not stored, installed, maintained, or operated in accordance with accepted U.S. industrial practice and any recommendations provided by CONTRACTOR; (iv) the Work was subjected to any accident, misapplication, environmental contamination, corrosion, abrasion, abuse or misuse; (v) COMPANY used, repaired, or modified the Work, or hired a third party to do the same, after discovery of a defect without CONTRACTOR’s prior written consent; or (vi) COMPANY fails to permit CONTRACTOR to examine the Work and operating data or fails to furnish routine operating data sufficient to determine the nature of the defect claimed. Should COMPANY delay or defer CONTRACTOR’s commissioning of the Work for twelve (12) months or longer after CONTRACTOR provides COMPANY notice of readiness for delivery, CONTRACTOR may suspend performance and issue a Change Order for inspection and any necessary repair or maintenance costs for commissioning.
(e)
In addition to the other terms and conditions set forth herein, all Work provided by CONTRACTOR related to the installation, testing, commissioning, or maintenance of the Work shall be subject to the following additional terms and conditions:
i.
Domestic travel of more than four (4) hours from CONTRACTOR’s service center will require overnight accommodation and will be charged as a separate day.
ii.
A surcharge of 100% will be added to the labor rate during a United States statutory holiday.
iii.
Standby time is that time when weather or other conditions beyond CONTRACTOR’s reasonable control, or COMPANY-related delays, prevent CONTRACTOR’s personnel from working when ready and able. Standby charges are charged at labor rates as stated above.
iv.
Specified charges for handling materials, rental equipment, tools, and other items provided at COMPANY’s request will be charged at cost plus twenty-five percent (25%). Such charges will be substantiated with a copy of the third-party invoice to CONTRACTOR.
v.
Commissioning, maintenance, or other services provided in connection with the Work with less than seven (7) days’ notice may be subject to a fifteen percent (15%) surcharge for all service-related items (not including materials and parts).
vi.
Extension of any service trip requires written confirmation by CONTRACTOR’s management. If air travel is required, tools will not be hand-carried. Tools and mechanical/electrical assistance for CONTRACTOR’s technicians will be provided by COMPANY. If required tools are not available, the technician will either purchase tools locally, or ship the required tools to the site, at COMPANY’s expense.
vii.
Specialized training, medical exams, and/or substance testing for site access is not included in CONTRACTOR’s rates. If a specific clause of COMPANY’s safety program requires this training or testing, CONTRACTOR will make reasonable efforts to comply with the request and will add any costs incurred to CONTRACTOR’s invoice.
6. Indemnities:
(a)
FOR PURPOSES OF THESE STANDARD TERMS AND CONDITIONS, THE TERM "CONTRACTOR GROUP" IS USED AS A REFERENCE INDIVIDUALLY AND COLLECTIVELY FOR CONTRACTOR AND ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, CONTRACTOR'S CONTRACTORS AND SUBCONTRACTORS OF ALL TIERS AND ITS AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNS, INVITEES, REPRESENTATIVES, ANY OF THEIR SPOUSES, RELATIVES, DEPENDENTS, OR ESTATES, AND THE SUBROGEES OF ALL SAID PARTIES. SIMILARLY, THE TERM "COMPANY GROUP" IS USED AS A REFERENCE INDIVIDUALLY AND COLLECTIVELY FOR COMPANY AND ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, COMPANY'S CONTRACTORS, AND SUBCONTRACTORS (WITH THE EXCEPTION OF CONTRACTOR) OF ALL TIERS AND ITS AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNS, INVITEES, REPRESENTATIVES, ANY OF THEIR SPOUSES, RELATIVES, DEPENDENTS, OR ESTATES, AND THE SUBROGEES OF ALL SAID PARTIES.
(b)
CONTRACTOR SHALL BE SOLELY RESPONSIBLE FOR AND AGREES TO RELEASE, DEFEND, AND INDEMNIFY THE COMPANY GROUP FROM AND AGAINST, AND HOLD EACH OF THEM HARMLESS FROM, ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR RELATED TO ANY DEATH OR BODILY INJURY OR DISABILITY, OR ANY PROPERTY DAMAGE OR PROPERTY LOSS, OF ANY OF THE CONTRACTOR GROUP AND ARISING OUT OF OR RELATED TO THE ORDER OF WORK OR THE WORK. CONTRACTOR'S OBLIGATIONS IN THE PRECEDING SENTENCE SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF WARRANTY, OR OTHER FAULT OF ANY OF THE COMPANY GROUP, THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, A PREEXISTING CONDITION, BLOWOUT, EXPLOSION, OR FIRE.
(c)
COMPANY GROUP SHALL BE SOLELY RESPONSIBLE FOR AND AGREES TO RELEASE, DEFEND, AND INDEMNIFY THE CONTRACTOR GROUP FROM AND AGAINST, AND HOLD EACH OF THEM HARMLESS FROM, ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR RELATED TO ANY DEATH OR BODILY INJURY OR DISABILITY, OR ANY PROPERTY DAMAGE OR PROPERTY LOSS, OF ANY OF THE COMPANY GROUP AND ARISING OUT OF OR RELATED TO THE ORDER OF WORK OR THE WORK. COMPANY'S OBLIGATIONS IN THE PRECEDING SENTENCE SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF WARRANTY, OR OTHER FAULT OF ANY OF THE CONTRACTOR GROUP, THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, A PREEXISTING CONDITION, BLOWOUT, EXPLOSION, OR FIRE.
(d)
CONTRACTOR will, at its expense, defend and indemnify COMPANY from any suit or proceeding brought against COMPANY based on a claim that the goods manufactured and furnished by CONTRACTOR under the Order constitute an infringement of any United States patent, if CONTRACTOR is notified promptly in writing and given authority, information, and assistance for the defense of the suit or proceeding. Defense and settlement of any claim shall be within CONTRACTOR’s sole discretion. Should it be held that the goods constitute infringement, and the use of the goods is enjoined, CONTRACTOR will, at its own expense and discretion, either procure for COMPANY the right to continue using the goods, replace the goods with non-infringing goods, modify the goods to become non-infringing, or remove the infringing goods and refund the price paid for the respective goods. CONTRACTOR does not accept any liability for infringement of any chemical, process, or flow patents, or for goods designed for or used in connection with such chemical, process, or flow patents. COMPANY will indemnify CONTRACTOR from any suit or proceeding brought against CONTRACTOR by any third party based on claims that the goods provided to COMPANY infringe any such patent, or with respect to any goods designed and manufactured in accordance with designs furnished by COMPANY. CONTRACTOR’s indemnity and defense obligations under this Section 6 shall not apply or extend to any claims, suits, proceedings, or expenses based upon the modification or enhancement of the Work by COMPANY, upon the manufacture of the goods according to the designs furnished and required by the COMPANY, or upon the use of the Work in combination with other goods, services, or technology not provided by CONTRACTOR, if such claims, suits, proceedings, or expenses would not have occurred but for such modification, enhancement, requirement, or combination.
7. Disclaimer of Consequential Damages; Limitation of Liability:
(a)
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT LOSS OR DAMAGE OR ANY PUNITIVE DAMAGE OF ANY KIND OR CHARACTER, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF PRODUCT, LOSS OF EFFICIENCY AND LOSS OF PRODUCTION, IRRESPECTIVE OF NEGLIGENCE, ARISING OUT OF THE WORK OR THE ORDER.
(b)
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TOTAL LIABILITY OF CONTRACTOR UNDER ANY ORDER, (IRRESPECTIVE OF WHETHER CONTRACTOR MAY HAVE BEEN OR ALLEGED TO HAVE BEEN NEGLIGENT OR OTHERWISE AT FAULT AND IRRESPECTIVE OF INSURANCE COVERAGE) SHALL BE LIMITED TO THE ORDER VALUE AND, IN NO EVENT WILL CONTRACTOR’S AGGREGATE LIABILITY EXCEED THE NET AMOUNT PAID BY COMPANY TO CONTRACTOR FOR THE WORK. COMPANY AGREES TO RELEASE, INDEMNIFY AND HOLD CONTRACTOR HARMLESS FROM AND AGAINST ANY SUCH LIABILITY IN EXCESS OF SUCH AMOUNTS. COMPANY ALSO AGREES TO PROVIDE SUFFICIENT INSURANCE (OR SHALL SELF-INSURE) FOR THE BENEFIT OF EACH OF THE PARTIES HERETO AS SHALL BE NECESSARY TO PROTECT BOTH COMPANY AND CONTRACTOR FROM ANY LIABILITY AS ALLOCATED TO COMPANY PURSUANT TO THESE STANDARD TERMS AND CONDITIONS.
8. Insurance:
Each Party shall purchase and maintain in full force and effect (with underwriters having an AM Best A- rated as a minimum), for the term of the Order, policies of insurance covering the terms and conditions described below. Except for the worker’s compensation insurance policy, all such policies shall name the other Party as an additional insured.
(a)
Worker's Compensation & Employers' Liability Insurance:
i. All states where operations are being conducted,
ii.
Coverage "B"- Employers' Liability Limit: $1,000,000 each accident $1,000,000 each person
(b)
Commercial General Liability Insurance:
i.
CONTRACTORS' Protective-work let or sub-let.
ii.
Products and Completed Operations coverage for a period equal to two years after the termination of the Order of Work.
iii.
Contractual Liability.
iv.
Minimum Coverage Limits: $1,000,000 each occurrence/$2,000,000 general aggregate
(c)
Automobile Liability Insurance:
i.
Coverage to include all owned, non-owned and hired Automobiles.
ii.
Minimum Coverage Limits: Combined single limit $1,000,000 each accident.
9. Monitoring, Data and Automation Services
(a)
Visual Monitoring Services.
(i)
Services warranty. Except as expressly provided in the Subscription Agreement between CONTRACTOR and COMPANY, CONTRACTOR warrants its installation and maintenance services for visual monitoring equipment and devices for the length of the subscription term. This warranty is void if CONTRACTOR does not have access to Equipment or Devices (as those terms are defined in the applicable Subscription Agreement) to perform necessary technical support and maintenance during the subscription term.
(ii)
Equipment warranty. CONTRACTOR will pass through to COMPANY the applicable warranty from the third-party manufacturer of any Equipment (as defined in the Subscription Agreement) and shall use commercially reasonable efforts to correct any non-conformances on COMPANY’S behalf in accordance with the warranty coverage.
(iii)
Functional warranty. Visual monitoring services are provided via a third-party provider. During the subscription term, CONTRACTOR warrants that the Hosted Platform, Licensed Software and Devices (as those terms are defined in the applicable Subscription Agreement) will operate substantially in conformance with the functions and features described in the applicable Subscription Agreement, when used in accordance with the Third-Party provider’s documentation. As COMPANY’s sole and exclusive remedy for any warranty breach, CEI shall use commercially reasonable efforts to correct any non-conformances which have been brought to CEI’s attention in accordance with the levels of support set out in the Subscription Agreement. These limited warranties are void if CONTRACTOR determines a non-conformance was caused by: (i) COMPANY data, third party services, COMPANY-provided equipment or any other material or software not furnished by CONTRACTOR, including without limitation failure of COMPANY-provided Equipment to meet the technical requirements set forth in the Hosted-Platform and/or Licensed Software documentation; (ii) any alteration or modification of the Hosted Platform, Licensed Software, Devices or Equipment made by COMPANY or any third-party; or (iii) accident, abuse or misuse, or any other use of Hosted Platform, Licensed Software, Equipment or Devices.
(iv)
Subscription fees. Fees as agreed to in the Subscription Agreement between CONTRACTOR and COMPANY are not subject to refund or proration for cancellation during subscription term. Upon cancellation, any outstanding balance shall immediately become due and payable.
(v)
Disclaimer. Except as expressly provided in the applicable Subscription Agreement between CONTRACTOR and COMPANY, Hosted Platform and Licensed Software are provided to COMPANY on an “as is” basis. CONTRACTOR makes no warranty that the Hosted Platform and Licensed Software will be provided uninterrupted or error-free. Contractor does not make any guarantees, representations or warranties regarding the accuracy or completeness of any data collected or transmitted; compatibility or interoperability of the Hosted Platform with equipment or COMPANY’s systems or network; or for the quality or effectiveness of any alerts or communications made through the Hosted Platform. Any alerts transmitted via the Hosted Platform are based on pre-determined characteristics and parameters and are not a substitute for COMPANY’S exercise of reasonable judgment, safety and security systems, or compliance obligations. CONTRACTOR disclaims all other warranties, express, implied or statutory, relating to the Hosted Platform and Licensed Software, including but not limited the warranties of non-infringement of third-party rights, merchantability and fitness for a particular purpose.
(vi)
UNDER NO CIRCUMSTANCES SHALL CONTRACTOR BE LIABLE TO COMPANY FOR ANY LOSS, INJURY, OR DAMAGE RESULTING FROM OR ARISING OUT OF MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, DATA, SIGNALS, OR INFORMATION IN CONNECTION WITH VISUAL MONITORING SERVICES. FURTHER, CONTRACTOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE HOSTED PLATFORM AND LICENSED SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT WILLFUL MISCONDUCT, THE AGGREGATE LIABILITY OF CONTRACTOR ARISING IN CONNECTION WITH VISUAL MONITORING SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, STRICT LIABILITY, AND/OR OTHER TORT, SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO CONTRACTOR BY COMPANY UNDER THE APPLICABLE CUSTOMER AGREEMENT DURING THE TWELVE-MONTH PERIOD PRECEDING THE INITIAL CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
(b) SyteLink360® Subscription.
(i)
Equipment warranty. Unless otherwise agreed in the applicable Order, CONTRACTOR warrants equipment sold in connection SyteLink360 subscription for the earlier of eighteen (18) months from delivery or twelve (12) months from first use. CONTRACTOR will repair or replace defective equipment at its cost if notified by COMPANY during the warranty period. This warranty may be void if (i) equipment is not installed or commissioned by CONTRACTOR, (ii) is subject to abuse or misuse, (iii) is modified or repaired by COMPANY or third party without CONTRACTOR’s consent or (iv) if the defect is caused by COMPANY’S or third party’s utilities, network, or infrastructure.
(ii)
Functional warranty. If COMPANY’s SyteLink360® subscription includes real-time monitoring and self-dispatch, CONTRACTOR warrants that monitored equipment will meet performance guarantees within the parameters specified in the Order. This performance guarantee does not apply if non-conformance due to (i) accident, misuse, modification, repair, removal, or damage by COMPANY or third-party, (ii) COMPANY’S utilities, network, infrastructure, or (iii) if CONTRACTOR is unable to access equipment upon self-dispatch to effect repairs.
(iii)
Data warranty and Disclaimer. CONTRACTOR warrants only that the data captured, retrieved, and/or transmitted from equipment under a SyteLink360® subscription shall be consistent with the data transmitted by such equipment. CONTRACTOR makes no warranty or guarantee as to the accuracy, quality, usefulness, or reliability of data transmitted by equipment. CONTRACTOR further warrants only that the data stored, compiled and/or provided to COMPANY will be consistent with the data captured, retrieved and/or transmitted by COMPANY’s equipment. Any alerts or notifications transmitted via data monitoring or automation services are based on pre-determined characteristics and parameters and are not a substitute for COMPANY’s exercise of reasonable judgment, safety and security systems, or compliance obligations. CONTRACTOR does not process or collect sensitive personal information or personally identifiable information as that data is defined by law. CONTRACTOR shall exercise reasonable care in its storage and transmission of data, but makes no representations, promises, warranties, or guarantees as to the security of stored or transmitted data. COMPANY acknowledges that CONTRACTOR may utilize third-party providers for data storage and transmission, thus CONTRACTOR does not warrant that its data storage, retrieval, and/or transmission services will not suffer interruptions or delays, be error-free, or that stored or transmitted data is impervious to breach. CONTRACTOR’s data storage, retrieval, transmission, and/or compilation services are not a substitute for COMPANY’s exercise of reasonable judgment and responsibility for its safety, security, control, or compliance obligations.
(iv)
Subscription fees. SyteLink360® fees are not subject to refund or proration for cancellation during subscription term. Upon cancellation, any outstanding balance shall immediately become due and payable.
(v)
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL CONTRACTOR BE LIABLE TO COMPANY FOR ANY LOSS, INJURY, OR DAMAGE RESULTING FROM OR ARISING OUT OF MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, DATA, SIGNALS, OR INFORMATION IN CONNECTION WITH A SYTELINK360® SUBSCRIPTION. FURTHER, CONTRACTOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO A SYTELINK360 SUBSCRIPTION® EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, THE AGGREGATE LIABILITY OF CONTRACTOR ARISING IN CONNECTION WITH REAL-TIME MONITORED AUTOMATION SERVICES, HOWEVER CAUSED, SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO CONTRACTOR BY COMPANY UNDER THE SYTELINK360® SUBSCRIPTION DURING THE TWELVE-MONTH PERIOD PRECEDING THE INITIAL CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION
10. Default:
If either Party defaults in the performance of any of its obligations under the Order(subject to the provisions regarding Force Majeure), the non-defaulting Party may notify the defaulting Party of the default and the defaulting Party shall have 30 calendar days to remedy the default, provided, however, that with respect to a payment default, the defaulting Party shall have 10 calendar days to remedy the default. If such default is not cured within the applicable period, then the non-defaulting Party shall have the option to immediately terminate the Order upon written notice. This remedy shall not be exclusive, however, and the exercise thereof shall not be deemed to constitute a waiver of any other rights or remedies that either Party may have under applicable law in the event of the other Party’s default.
11. Force Majeure:
Any delays in or failures by either Party in performing its obligations hereunder (other than obligations to pay money), shall not constitute default hereunder or give rise to any claims for damages, if and to the extent that such delays or failures of performance of the Work are caused by occurrences of Force Majeure. For purposes of these Standard Terms and Conditions, “Force Majeure” includes, but is not limited to, Acts of God, wars or warlike action (whether actual or impending), arrests and other restraints of government (civil or military), terrorism, blockades, insurrections, riots, pandemics, epidemics, landslides, lightning, earthquakes, fires, sabotage, tropical storms and hurricanes, civil disturbances, tidal waves, explosions, shortages of suppliers, confiscation or seizure by any government or other public authority, and any other causes or events that are not reasonably within a Party’s control. The Party experiencing an occurrence of Force Majeure shall notify the other Party with reasonable promptness of the existence of any such Force Majeure and the probable duration thereof and shall provide the other Party from time to time with information regarding the same. The Party experiencing an occurrence of Force Majeure shall take all commercially reasonable actions to remove the cause of the occurrence of Force Majeure.
12. Assignment; Successors; Third Parties:
Neither Party shall assign or transfer all or any portion of the Order to any third party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that a Party shall be entitled to transfer or assign all or any portion of the Order without such consent: (i) to any of its affiliates or subsidiaries; or (ii) to the purchaser of all or substantially all of the assets of the other Party. Subject to the foregoing, the Order shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Nothing in these Standard Terms and Conditions or in the Order is intended to confer any liabilities, duties, rights, benefits, or obligations hereunder upon any person or entity other than the Parties hereto and their respective permitted successors and assigns and expressly approved affiliates.
13. Waiver:
No benefit or right accruing to either Party under these Standard Terms and Conditions or under the Order shall be waived unless the waiver is in a writing signed by both Parties to the Order. The failure of either Party to exercise any of its rights under the Order or these Standard Terms and Conditions shall in no way constitute a waiver of any of those rights, nor shall such failure excuse the other Party from any of its obligations under the Order or these Standard Terms and Conditions.
14. Relationship of the Parties:
In the performance of the Work, CONTRACTOR is an independent CONTRACTOR. CONTRACTOR agrees that all persons engaged by CONTRACTOR to perform the Work, whether CONTRACTOR’s employees or subcontractors are not the employees of COMPANY. CONTRACTOR hereby agrees to immediately reimburse COMPANY for all taxes, interest and penalties required to be paid by COMPANY under any applicable laws covering CONTRACTOR’S employees or subcontractors for performance of the Work.
15. Audit:
CONTRACTOR shall maintain a true and correct set of records pertaining to Work performed and all transactions directly related thereto. CONTRACTOR agrees to retain all such records for a period of not less than two years from the end of the calendar year in which the Work was performed. COMPANY may conduct a supervised audit during regular business hours after reasonable prior written notice to CONTRACTOR of such audit, within such two-year period at COMPANY’s expense. The audit privileges granted to COMPANY under this Section 15 are limited strictly to verifying whether CONTRACTOR has been compliant with the Order and these Standard Terms and Conditions and, therefore, shall be narrowly construed and not to be used to obtain any proprietary or privileged information from CONTRACTOR such as, without limitation, CONTRACTOR’s financial margins under a firm fixed price agreement for the Work, CONTRACTOR’s methods of operations, or any details and/or breakdowns of costs incurred by CONTRACTOR, except for reimbursable costs allowable under an Order.
16. Confidentiality:
(a)
The phrase "Confidential Information" shall mean any information disclosed by one Party to the other in connection with the Order and the performance of the Work, including, without limitation, all information, documents, drawings, reports, manuscripts, text, drawings, photographs, video recordings, computer software, knowledge, data or other information relating to the Disclosing Party’s products, processes, know-how, designs, formulae, test data, COMPANY lists, business plans, marketing plans, strategies, materials, goods, equipment, and pricing and availability of any services or goods, that is in written, graphic, machine readable or other tangible form and is marked "Confidential", "Proprietary" or in some other manner to indicate its confidential nature. The phrase “Confidential Information” shall not include information that:
(i)
is or becomes publicly available through no breach of this Section 16 by the Receiving Party;
(ii)
is already in the Receiving Party's possession at the time of its disclosure by the Disclosing Party;
(iii) is disclosed to the Receiving Party by a third party who, to the Receiving Party's knowledge, is not prohibited from disclosing the information pursuant to a confidentiality agreement with the Disclosing Party;
(iv) is intentionally or purposely disclosed, exchanged or transmitted without restriction of confidentiality by Disclosing Party to any third party;
(v)
is independently developed by Receiving Party without reference or exposure to the confidential information received from Disclosing Party or
(vi)
is required to be disclosed to a governmental agency or entity, or by law or legal process, by advice of Receiving Party’s legal counsel.
(b)
Each Party (a “Receiving Party”) shall treat as confidential all Confidential Information received from or through the other Party (a “Disclosing Party”), shall not use such Confidential Information except as expressly permitted under these Standard Terms and Conditions, and shall not disclose such Confidential Information to any third Party without the Disclosing Party's prior written consent, provided, however, that a Receiving Party may disclose the Disclosing Party’s Confidential Information to any of Receiving Party’s affiliates, directors, officers, employees, attorneys, accountants, representatives, agents, consultants, advisors, partners, prospective partners, lenders, and prospective lenders (collectively, “Representatives”) on a reasonable need to know basis, provided that each Representative is apprised of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 16. Each Receiving Party shall be liable for any breach of this Section 16 by any of its Representatives. Each Receiving Party shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event with less than reasonable care, to prevent the disclosure of Confidential Information disclosed to it or its Representatives by the Disclosing Party or its Representatives under the Order or these Standard Terms and Conditions.
(c)
Unauthorized use by a Receiving Party of the Disclosing Party's Confidential Information could diminish the value of such information. Therefore, if a Receiving Party breaches any of its obligations with respect to confidentiality or uses any of Disclosing Party’s Confidential Information in a manner that is not specifically authorized under these Standard Terms and Conditions, then the Disclosing Party shall be entitled to equitable relief to protect its interest therein, including but not limited to, injunctive relief. The rights and remedies of a Disclosing Party pursuant to this Section 16 are cumulative to, and shall not be deemed to exclude, any other right or remedy that such Disclosing Party may have pursuant to these Standard Terms and Conditions or otherwise, at law or in equity.
(d)
Notwithstanding anything to the contrary herein, any Party (and its respective employees, representatives, or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of any transaction between the Parties and all materials of any kind (including opinions or other tax analyses) that are provided to such Party relating to such tax treatment and tax structure.
17. Entire Agreement:
Except as specifically agreed in writing by the Parties, these Standard Terms and Conditions supersede all negotiations, understandings and agreements between the Parties and constitutes the entire understanding and agreement between the Parties relative to the Work. No supplement, modification or waiver of these Standard Terms and Conditions or any Order shall be binding unless executed in writing by both Parties.
18. Notices:
Except as expressly provided otherwise herein, any notice from one Party to the other hereunder shall be given in writing. Any notice, payment or invoice hereunder shall be delivered to the contact person at the address of the Parties set forth on the Order pursuant to these Standard Terms and Conditions, until notice is given in accordance with this Section 18 by either Party to the other Party, in writing, of a change of contact person or address. Notice required to be given under these Standard Terms and Conditions shall be deemed given and delivered
(i)
upon receipt or five days after deposited in the U.S. Mail whichever is earlier, postage paid, via certified mail, return receipt requested,
(ii)
upon transmission via facsimile or email evidenced by the sender’s electronic mail or fax machine-generated confirmation of transmission,
(iii)
on the date of delivery by a reputable express delivery service, or
(iv)
when delivered in person.
19. Governing Law; Waiver of Jury Trial; Exclusive Forum and Jurisdiction:
These Standard Terms and Conditions and the Order shall be governed by and interpreted solely in accordance with the laws of the State of Texas, U.S.A., without giving effect to any conflict of law rules. Likewise, in the event of any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof and/or the Parties ' relationship arising therefrom, the Parties agree first to try in good faith to settle the dispute by mediation and any applicable statute of limitations shall be tolled until ten (10) days after the mediation has concluded If the matter is not resolved through mediation within thirty (30) days of serving notice of intent to mediate, then the parties shall submit their dispute to binding arbitration before one arbitrator. The mediation and arbitration shall be held in Houston, Texas in proceedings administered by and before, and in accordance with, the rules of, the American Arbitration Association. Judgment on the arbitrator's award may be entered by and in any Court having jurisdiction thereof. Any monetary award issued by the arbitrator shall be payable in U.S. Dollars. The arbitrators are not empowered to award consequential, indirect, special, punitive, or exemplary damages, and each Party hereby irrevocably waives any damages in excess of actual damages. In addition to the rights and remedies provided herein, the parties may seek injunctive and other provisional emergency relief from a Court in aid of arbitration or mediation and any such Court action shall be brought exclusively before a State Court located in Harris County, Texas or the United States District Court for the Southern District of Texas located in Harris County, Texas and each party irrevocably consents to the exclusive jurisdiction, and waives any objection to the venue, of said Court. Each party consents to service of process in the commencement of any action, mediation or arbitration proceeding by overnight mail delivery service with an additional copy sent by first-class mail, postage pre-paid, to the parties ' respective addresses as provided in this Agreement.
20. Attorneys' Fees:
In the event of any action or suit based upon or arising out of any alleged breach by any Party of any representation, warranty, or agreement in the Order or these Standard Terms and Conditions, the prevailing Party shall be entitled to recover reasonable attorneys' fees and other costs of such action or suit from the other Party.
21. Section Headings, Construction:
The headings of Sections in these Standard Terms and Conditions are provided for convenience only and will not affect its construction or interpretation. The Parties have been given an opportunity to negotiate these Standard Terms and Conditions. In the event an ambiguity or question of intent or interpretation arises, these Standard Terms and Conditions 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.
22. Severability:
If any term of these Standard Terms and Conditions or the Order is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.
and its Affiliates:
Flare Industries, Inc. d/b/a Aereon
and
HY-BON Engineering Co., Inc.
All quotations (offers) and sales for goods and/or services (collectively, the "Work") made by, or orders or offers for Work (collectively, an “Order”) made to, Cimarron Energy Inc. or its affiliates (“CONTRACTOR”) by purchaser (“COMPANY”) are based and conditioned upon acceptance of the following terms and conditions. No provision contained in any other communication that is inconsistent with or in addition to these Standard Terms and Conditions is accepted by CONTRACTOR unless specifically agreed to in writing. In the event of any conflict between or among these Standard Terms and Conditions, any Order, or any Exhibit to any Order, the conflict shall be resolved in the following order of priority: (i) these Standard Terms and Conditions; (ii) any Exhibit; and (iii) any Order. COMPANY and CONTRACTOR further acknowledge and agree that the obligations and liabilities of the CONTRACTOR are several only and will not be joint or joint and several with any CONTRACTOR Affiliate.
1. Quotations; Terms of Payment; Invoices; Due Date:(a)
CONTRACTOR’s quotations are valid for thirty days (30) from the date of the quotation unless otherwise stated. The latest quotation shall supersede all others. CONTRACTOR’s quotations contain proprietary information (which is subject to Section 16 herein) and are provided to COMPANY with the understanding that the information will be used by COMPANY solely for purposes of internal evaluation and will not be disclosed to any third party.
(b)
COMPANY shall pay CONTRACTOR the prices and rates set forth in the applicable Order, or, absent an Order, pursuant to CONTRACTOR’S standard prices and rates. CONTRACTOR shall invoice COMPANY as agreed in the Order or, absent an Order, on a monthly basis for Work performed. COMPANY shall pay CONTRACTOR’s invoice in full within thirty (30) calendar days of the invoice date. Progress payments will apply to any COMPANY’s purchase(s) where the Order(s) total exceeds $100,000.00. Payment percentages shall be invoiced as follows: (i) 50% upon order acceptance and (ii) the final 50% prior to shipment. CONTRACTOR may invoice COMPANY upon completion of work to original specifications; if Change Order received after completion, charges may be invoiced separately. Partial shipments of parts issued under a single Order may be invoiced separately. If COMPANY defers delivery for more than 90 days after notice of readiness for shipment, CONTRACTOR may bill and hold, transferring title and risk of loss to COMPANY and charge COMPANY storage and preservation fees. Should COMPANY require CONTRACTOR to submit field tickets or sales invoices for approval prior to invoicing, COMPANY shall approve or deny within three (3) business days of presentation, or the same shall be deemed approved. Any disputes to CONTRACTOR’s invoice shall be made in writing within ten (10) days of receipt. Disputes do not affect payment terms for non-disputed amount, and payment of disputed amount shall be due no later than five (5) business days upon resolution.
(c)
If COMPANY fails to pay the amounts owed when due, COMPANY shall also CONTRACTOR interest from the due date to the date of payment at a rate equal to the lesser of (i) 18% per annum or (ii) the maximum rate permitted by applicable law. CONTRACTOR, at its sole discretion, and without incurring any liability, may suspend its performance until such time as the overdue payment is made or CONTRACTOR is provided assurances, adequate in CONTRACTOR’s sole discretion, that payment is forthcoming. In the event of such suspension, there shall be an equitable adjustment to the delivery schedule and Order price reflecting the duration and any increased cost. Payments shall not be subject to set-off. Lien waivers shall be contingent upon CONTRACTOR receiving in full all payments due. COMPANY shall also pay all collection costs and expenses including without limitation, reasonable attorneys’ fees.
2. General Commercial Clarifications:
(a)
Unit pricing includes the unit scope based on the technical specifications listed in the proposal, with any clarifications as noted.
(b)
Unit pricing offered is based on quantity and therefore subject to change.
(c)
Project Start Date is the date of “Order acceptance by both CONTRACTOR and COMPANY.
CONTRACTOR shall provide COMPANY a formal notification of Order acceptance. Deliverable timelines are based on Order acceptance date and subject to change as provided herein.
(d)
After Receipt of Order (“ARO”), is defined as the (i) date these Terms and Conditions ar agreed upon by CONTRACTOR and COMPANY and (ii) the Order is accepted by CONTRACTOR. Drawings are submitted for information only, no approval required from COMPANY for CONTRACTOR to commence fabrication unless otherwise stated.
(e)
After Receipt of Approved Drawings (“ARAD”), is defined as the date the COMPANY has approved fabrication level drawings for the products purchased as described in the proposal. The COMPANY is allowed five (5) business days to approve drawings after submission by CONTRACTOR or project delivery date(s) subject to adjustment.
(f)
Material Escalation: In the event of significant price increase of material during the performance of the contract through no fault of CONTRACTOR, the contract sum, time of completion or contract requirements shall be equitably adjusted and presented via Change Order to the COMPANY. A change in price of an item of material will be considered significant when the price of an item increases 10% percent between the date of Order acceptance and the date of material purchase to support quoted lead time. CONTRACTOR will provide evidence of quoted versus escalated purchase price and delivery.
(g)
Inspections: Unless noted otherwise, inspections by 3rd party or COMPANY are at COMPANY’s cost with at least five (5) business days’ notice. Hold points to be agreed upon prior to commencement of fabrication. Increased cost and delivery impact scope subject to Change Order.
(h)
Origin of Material Requirements: CONTRACTOR reserves the right to source material at its discretion when no Origin of Material Requirements stated in the Order.
(i)
COMPANY Free-Issued Items: All COMPANY free-issued items to be quality checked by CONTRACTOR. Price and lead time are subject to change due to delivery or quality issues.
(j) In the event there is a redundancy or inconsistency between any documents attached, referred to, or appended to a proposal, the scope included in the proposal controls.
(k) Additional Commercial Exclusions:
i. Sales tax, VAT, or duties.
ii. Embassy Legalization Costs.
iii. Spare part drawings and documentation.
iv. Freight costs and logistics offered at cost-plus 15% unless otherwise agreed.
v. CONTRACTOR strictly prohibits the sale or resale of its equipment in countries sanctioned by the United States Government.
vi. All documentation will be supplied in Acrobat pdf format.
vii. CONTRACTOR operating and maintenance manuals, quality dossiers, and drawings are provided in English. Text translation available at additional cost.
viii. CONTRACTOR will not be present at COMPANY meetings unless explicitly agreed in proposal.
ix. Spare parts quotation does not include cross sectional drawings, export packing or freight.
x. CONTRACTOR does not provide bank guarantees, performance bonds, or warranty bonds unless specifically agreed in proposal.
3. Shipping Terms; Termination; Change:
(a) The shipping terms for any goods shall be EX WORKS CONTRACTOR’S manufacturing facility (per the International Chamber of Commerce’s INCOTERMS 2020), unless otherwise agreed by CONTRACTOR in writing. Shipments made on COMPANY’s behalf shall be insured at COMPANY’s expense.
(b) If COMPANY sends written notice to cancel an Order, said notice will be effective upon receipt. COMPANY will be responsible for the total cost of the products produced to date. An additional cancellation charge of 50% of the unfilled order value will apply to orders manufactured to COMPANY specifications.
(c) Either Party may terminate an Order upon written notice to the other Party if the other Party has failed to cure a default within the appropriate cure period set forth in Section 8. Either Party may also terminate an Order upon written notice if the other Party (i) makes a general assignment for the benefit of its creditors; (ii) institutes proceedings to be adjudicated a voluntary bankrupt, or consents to the filing of a petition of bankruptcy against it; (iii) seeks reorganization under any bankruptcy act, or consents to the filing of a petition seeking such reorganization; or (iv) has a decree entered against it by a court of competent jurisdiction appointing a receiver, liquidator, trustee or assignee in bankruptcy or in insolvency covering all or substantially all of such Party’s property or providing for the liquidation of such Party’s property or business affairs, and such decree is not vacated within 60 calendar days.
(d) No material modification or change to the provisions to an Order Order (“Change Order”) shall be valid unless signed by both Parties. If any Change Order causes an increase in the cost, or the time required for performance, or otherwise affects any other provision of the Order an equitable adjustment shall be made.
4. Title to Certain Goods; Risk of Loss:
Title to all goods furnished by CONTRACTOR and incorporated or intended to be incorporated into the Work shall transfer to COMPANY upon full and complete payment to CONTRACTOR for such Work. Notwithstanding the foregoing, and subject to bill and hold provisions in Section 1(a), the risk of loss of such goods shall transfer to COMPANY upon delivery. Upon investment of title of the Work in and to COMPANY, the Work shall be the sole tangible personal property of the COMPANY. However, COMPANY’s rights in such Work do not include and specifically exclude any intangible or Intellectual Property Rights of CONTRACTOR or of any third party embodied, contained, referenced, described, or disclosed therein except as otherwise provided in this Section 4. However, CONTRACTOR grants to COMPANY a personal, perpetual, nonexclusive, worldwide, royalty free license to use the CONTRACTOR's Intellectual Property Rights embodied, contained, referenced, described, or disclosed in such Work solely for the purpose to operate and maintain the Work provided by CONTRACTOR pursuant to the Order. “Intellectual Property Rights,” for the purposes of Section 3, means all intellectual property rights, including patents, copyright, designs, trade or service marks, semiconductor topography rights, database rights, rights in confidential information, including know-how and trade secrets, moral rights or other similar rights in any country (all whether or not registered, including all applications for any of them and all equivalent rights in all parts of the world) and all rights of confidence, whenever and however arising for their full term and including renewals and extensions.
5. Limited Warranties:
(a)
Each Party represents and warrants that (i) it has the right, power, and authority to enter into the Order and to fully perform its obligations under such Order and (ii) it will comply with all applicable laws, regulations, rules, and orders in all material respects.
(b)
COMPANY warrants to CONTRACTOR that, during the term of the Order: (i) COMPANY, its employees, and its agents will fully cooperate with CONTRACTOR to provide CONTRACTOR, its employees, , vendors and its agents with all necessary and reasonable access to COMPANY’s premises and sites; and (ii) COMPANY’S operations will be conducted in a commercially safe and reasonable manner at all COMPANY premises and sites to which CONTRACTOR and its employees, CONTRACTOR’s, vendors and agents will need access in order to perform the Work.
(c)
EXCEPT AS EXPRESSLY PROVIDED IN SECTION 4(d), THE WORK SHALL BE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR DENIES AND DISCLAIMS ALL IMPLIED AND ALL STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, QUALITY OR NON-INFRINGEMENT AND ALL OTHER WARRANTIES OTHER THAN THOSE EXPRESSLY SET FORTH IN THIS SECTION 5. CONTRACTOR SHALL HAVE NO LIABILITY FOR THE DESIGN OR ENGINEERING OF THE WORK IF PERFORMED TO COMPANY SPECIFICATIONS OR DESIGN, EVEN IF CONTRACTOR PARTICIPATED IN ITS DEVELOPMENT, NOR FOR ANY COMPANY-FURNISHED MATERIALS. COMPANY ACKNOWLEDGES AND AGREES THAT COMPANY HAS SOLE RESPONSIBILITY FOR DETERMINING THE SUITABILITY OF THE WORK FOR ITS OPERATIONS.
(d)
CONTRACTOR warrants:
i.
With respect to goods, subject to the limitations contained herein, for a period of eighteen (18) months after the date of notice of availability for shipment of the goods, or one year after startup of the goods, whichever occurs first (the “Warranty Period”), such goods will be free from material defects in materials and workmanship and will conform to CONTRACTOR's published specifications.
ii.
The Warranty Period for services furnished by CONTRACTOR shall be ninety (90) days from completion of the services. CONTRACTOR refurbished equipment shall carry a ninety-day (90-day) limited warranty on specific components replaced with new materials, and related labor. Warranty shall run from the date of return shipment to COMPANY.
iii.
If during the Warranty Period any Work furnished by CONTRACTOR proves to be materially defective in material or workmanship, CONTRACTOR will, at CONTRACTOR’s discretion, either repair the Work or supply identical or substantially similar replacement parts EX WORKS manufacturing facility, or reperform the Work, if CONTRACTOR is notified of the defect in writing during the Warranty Period. Unless otherwise agreed in writing, any repaired or replacement parts will be warranted against defects in material or workmanship only for the unexpired portion of the original Warranty Period. CONTRACTOR will not be responsible for costs of making access to, or of export/import, shipment, removal, or installation of, any items needed to repair or replace defective Work. Routine maintenance-related or consumable items shall be outside the scope of this limited warranty. CONTRACTOR’s performance guarantees, if any, shall be deemed to be met by a satisfactory demonstration of the performance of the Work during a performance test, which shall be the responsibility of the COMPANY, pursuant to mutually agreed test procedures. If the performance test is not completed within forty-five (45) days after notice of availability for shipment of the Work, the performance test shall be deemed to be satisfactorily performed for all purposes. These limited warranties may, in CONTRACTOR’s sole discretion, be voided if: (i) CONTRACTOR, or CONTRACTOR’s certified subcontractor, was not utilized to confirm proper installation or commissioning of the Work, contributing to the defect (ii) COMPANY delayed commissioning of the Work after notice of readiness for delivery, leading to the alleged defect; (iii) the Work was not stored, installed, maintained, or operated in accordance with accepted U.S. industrial practice and any recommendations provided by CONTRACTOR; (iv) the Work was subjected to any accident, misapplication, environmental contamination, corrosion, abrasion, abuse or misuse; (v) COMPANY used, repaired, or modified the Work, or hired a third party to do the same, after discovery of a defect without CONTRACTOR’s prior written consent; or (vi) COMPANY fails to permit CONTRACTOR to examine the Work and operating data or fails to furnish routine operating data sufficient to determine the nature of the defect claimed. Should COMPANY delay or defer CONTRACTOR’s commissioning of the Work for twelve (12) months or longer after CONTRACTOR provides COMPANY notice of readiness for delivery, CONTRACTOR may suspend performance and issue a Change Order for inspection and any necessary repair or maintenance costs for commissioning.
(e)
In addition to the other terms and conditions set forth herein, all Work provided by CONTRACTOR related to the installation, testing, commissioning, or maintenance of the Work shall be subject to the following additional terms and conditions:
i.
Domestic travel of more than four (4) hours from CONTRACTOR’s service center will require overnight accommodation and will be charged as a separate day.
ii.
A surcharge of 100% will be added to the labor rate during a United States statutory holiday.
iii.
Standby time is that time when weather or other conditions beyond CONTRACTOR’s reasonable control, or COMPANY-related delays, prevent CONTRACTOR’s personnel from working when ready and able. Standby charges are charged at labor rates as stated above.
iv.
Specified charges for handling materials, rental equipment, tools, and other items provided at COMPANY’s request will be charged at cost plus twenty-five percent (25%). Such charges will be substantiated with a copy of the third-party invoice to CONTRACTOR.
v.
Commissioning, maintenance, or other services provided in connection with the Work with less than seven (7) days’ notice may be subject to a fifteen percent (15%) surcharge for all service-related items (not including materials and parts).
vi.
Extension of any service trip requires written confirmation by CONTRACTOR’s management. If air travel is required, tools will not be hand-carried. Tools and mechanical/electrical assistance for CONTRACTOR’s technicians will be provided by COMPANY. If required tools are not available, the technician will either purchase tools locally, or ship the required tools to the site, at COMPANY’s expense.
vii.
Specialized training, medical exams, and/or substance testing for site access is not included in CONTRACTOR’s rates. If a specific clause of COMPANY’s safety program requires this training or testing, CONTRACTOR will make reasonable efforts to comply with the request and will add any costs incurred to CONTRACTOR’s invoice.
6. Indemnities:
(a)
FOR PURPOSES OF THESE STANDARD TERMS AND CONDITIONS, THE TERM "CONTRACTOR GROUP" IS USED AS A REFERENCE INDIVIDUALLY AND COLLECTIVELY FOR CONTRACTOR AND ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, CONTRACTOR'S CONTRACTORS AND SUBCONTRACTORS OF ALL TIERS AND ITS AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNS, INVITEES, REPRESENTATIVES, ANY OF THEIR SPOUSES, RELATIVES, DEPENDENTS, OR ESTATES, AND THE SUBROGEES OF ALL SAID PARTIES. SIMILARLY, THE TERM "COMPANY GROUP" IS USED AS A REFERENCE INDIVIDUALLY AND COLLECTIVELY FOR COMPANY AND ITS PARENT, SUBSIDIARY AND AFFILIATED COMPANIES, COMPANY'S CONTRACTORS, AND SUBCONTRACTORS (WITH THE EXCEPTION OF CONTRACTOR) OF ALL TIERS AND ITS AND ALL OF THEIR OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, ASSIGNS, INVITEES, REPRESENTATIVES, ANY OF THEIR SPOUSES, RELATIVES, DEPENDENTS, OR ESTATES, AND THE SUBROGEES OF ALL SAID PARTIES.
(b)
CONTRACTOR SHALL BE SOLELY RESPONSIBLE FOR AND AGREES TO RELEASE, DEFEND, AND INDEMNIFY THE COMPANY GROUP FROM AND AGAINST, AND HOLD EACH OF THEM HARMLESS FROM, ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR RELATED TO ANY DEATH OR BODILY INJURY OR DISABILITY, OR ANY PROPERTY DAMAGE OR PROPERTY LOSS, OF ANY OF THE CONTRACTOR GROUP AND ARISING OUT OF OR RELATED TO THE ORDER OF WORK OR THE WORK. CONTRACTOR'S OBLIGATIONS IN THE PRECEDING SENTENCE SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF WARRANTY, OR OTHER FAULT OF ANY OF THE COMPANY GROUP, THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, A PREEXISTING CONDITION, BLOWOUT, EXPLOSION, OR FIRE.
(c)
COMPANY GROUP SHALL BE SOLELY RESPONSIBLE FOR AND AGREES TO RELEASE, DEFEND, AND INDEMNIFY THE CONTRACTOR GROUP FROM AND AGAINST, AND HOLD EACH OF THEM HARMLESS FROM, ANY AND ALL CLAIMS AND LOSSES ARISING OUT OF OR RELATED TO ANY DEATH OR BODILY INJURY OR DISABILITY, OR ANY PROPERTY DAMAGE OR PROPERTY LOSS, OF ANY OF THE COMPANY GROUP AND ARISING OUT OF OR RELATED TO THE ORDER OF WORK OR THE WORK. COMPANY'S OBLIGATIONS IN THE PRECEDING SENTENCE SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF WARRANTY, OR OTHER FAULT OF ANY OF THE CONTRACTOR GROUP, THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, A PREEXISTING CONDITION, BLOWOUT, EXPLOSION, OR FIRE.
(d)
CONTRACTOR will, at its expense, defend and indemnify COMPANY from any suit or proceeding brought against COMPANY based on a claim that the goods manufactured and furnished by CONTRACTOR under the Order constitute an infringement of any United States patent, if CONTRACTOR is notified promptly in writing and given authority, information, and assistance for the defense of the suit or proceeding. Defense and settlement of any claim shall be within CONTRACTOR’s sole discretion. Should it be held that the goods constitute infringement, and the use of the goods is enjoined, CONTRACTOR will, at its own expense and discretion, either procure for COMPANY the right to continue using the goods, replace the goods with non-infringing goods, modify the goods to become non-infringing, or remove the infringing goods and refund the price paid for the respective goods. CONTRACTOR does not accept any liability for infringement of any chemical, process, or flow patents, or for goods designed for or used in connection with such chemical, process, or flow patents. COMPANY will indemnify CONTRACTOR from any suit or proceeding brought against CONTRACTOR by any third party based on claims that the goods provided to COMPANY infringe any such patent, or with respect to any goods designed and manufactured in accordance with designs furnished by COMPANY. CONTRACTOR’s indemnity and defense obligations under this Section 6 shall not apply or extend to any claims, suits, proceedings, or expenses based upon the modification or enhancement of the Work by COMPANY, upon the manufacture of the goods according to the designs furnished and required by the COMPANY, or upon the use of the Work in combination with other goods, services, or technology not provided by CONTRACTOR, if such claims, suits, proceedings, or expenses would not have occurred but for such modification, enhancement, requirement, or combination.
7. Disclaimer of Consequential Damages; Limitation of Liability:
(a)
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT LOSS OR DAMAGE OR ANY PUNITIVE DAMAGE OF ANY KIND OR CHARACTER, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF PROFITS, LOSS OF REVENUES, LOSS OF PRODUCT, LOSS OF EFFICIENCY AND LOSS OF PRODUCTION, IRRESPECTIVE OF NEGLIGENCE, ARISING OUT OF THE WORK OR THE ORDER.
(b)
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, THE TOTAL LIABILITY OF CONTRACTOR UNDER ANY ORDER, (IRRESPECTIVE OF WHETHER CONTRACTOR MAY HAVE BEEN OR ALLEGED TO HAVE BEEN NEGLIGENT OR OTHERWISE AT FAULT AND IRRESPECTIVE OF INSURANCE COVERAGE) SHALL BE LIMITED TO THE ORDER VALUE AND, IN NO EVENT WILL CONTRACTOR’S AGGREGATE LIABILITY EXCEED THE NET AMOUNT PAID BY COMPANY TO CONTRACTOR FOR THE WORK. COMPANY AGREES TO RELEASE, INDEMNIFY AND HOLD CONTRACTOR HARMLESS FROM AND AGAINST ANY SUCH LIABILITY IN EXCESS OF SUCH AMOUNTS. COMPANY ALSO AGREES TO PROVIDE SUFFICIENT INSURANCE (OR SHALL SELF-INSURE) FOR THE BENEFIT OF EACH OF THE PARTIES HERETO AS SHALL BE NECESSARY TO PROTECT BOTH COMPANY AND CONTRACTOR FROM ANY LIABILITY AS ALLOCATED TO COMPANY PURSUANT TO THESE STANDARD TERMS AND CONDITIONS.
8. Insurance:
Each Party shall purchase and maintain in full force and effect (with underwriters having an AM Best A- rated as a minimum), for the term of the Order, policies of insurance covering the terms and conditions described below. Except for the worker’s compensation insurance policy, all such policies shall name the other Party as an additional insured.
(a)
Worker's Compensation & Employers' Liability Insurance:
i. All states where operations are being conducted,
ii.
Coverage "B"- Employers' Liability Limit: $1,000,000 each accident $1,000,000 each person
(b)
Commercial General Liability Insurance:
i.
CONTRACTORS' Protective-work let or sub-let.
ii.
Products and Completed Operations coverage for a period equal to two years after the termination of the Order of Work.
iii.
Contractual Liability.
iv.
Minimum Coverage Limits: $1,000,000 each occurrence/$2,000,000 general aggregate
(c)
Automobile Liability Insurance:
i.
Coverage to include all owned, non-owned and hired Automobiles.
ii.
Minimum Coverage Limits: Combined single limit $1,000,000 each accident.
9. Monitoring, Data and Automation Services
(a)
Visual Monitoring Services.
(i)
Services warranty. Except as expressly provided in the Subscription Agreement between CONTRACTOR and COMPANY, CONTRACTOR warrants its installation and maintenance services for visual monitoring equipment and devices for the length of the subscription term. This warranty is void if CONTRACTOR does not have access to Equipment or Devices (as those terms are defined in the applicable Subscription Agreement) to perform necessary technical support and maintenance during the subscription term.
(ii)
Equipment warranty. CONTRACTOR will pass through to COMPANY the applicable warranty from the third-party manufacturer of any Equipment (as defined in the Subscription Agreement) and shall use commercially reasonable efforts to correct any non-conformances on COMPANY’S behalf in accordance with the warranty coverage.
(iii)
Functional warranty. Visual monitoring services are provided via a third-party provider. During the subscription term, CONTRACTOR warrants that the Hosted Platform, Licensed Software and Devices (as those terms are defined in the applicable Subscription Agreement) will operate substantially in conformance with the functions and features described in the applicable Subscription Agreement, when used in accordance with the Third-Party provider’s documentation. As COMPANY’s sole and exclusive remedy for any warranty breach, CEI shall use commercially reasonable efforts to correct any non-conformances which have been brought to CEI’s attention in accordance with the levels of support set out in the Subscription Agreement. These limited warranties are void if CONTRACTOR determines a non-conformance was caused by: (i) COMPANY data, third party services, COMPANY-provided equipment or any other material or software not furnished by CONTRACTOR, including without limitation failure of COMPANY-provided Equipment to meet the technical requirements set forth in the Hosted-Platform and/or Licensed Software documentation; (ii) any alteration or modification of the Hosted Platform, Licensed Software, Devices or Equipment made by COMPANY or any third-party; or (iii) accident, abuse or misuse, or any other use of Hosted Platform, Licensed Software, Equipment or Devices.
(iv)
Subscription fees. Fees as agreed to in the Subscription Agreement between CONTRACTOR and COMPANY are not subject to refund or proration for cancellation during subscription term. Upon cancellation, any outstanding balance shall immediately become due and payable.
(v)
Disclaimer. Except as expressly provided in the applicable Subscription Agreement between CONTRACTOR and COMPANY, Hosted Platform and Licensed Software are provided to COMPANY on an “as is” basis. CONTRACTOR makes no warranty that the Hosted Platform and Licensed Software will be provided uninterrupted or error-free. Contractor does not make any guarantees, representations or warranties regarding the accuracy or completeness of any data collected or transmitted; compatibility or interoperability of the Hosted Platform with equipment or COMPANY’s systems or network; or for the quality or effectiveness of any alerts or communications made through the Hosted Platform. Any alerts transmitted via the Hosted Platform are based on pre-determined characteristics and parameters and are not a substitute for COMPANY’S exercise of reasonable judgment, safety and security systems, or compliance obligations. CONTRACTOR disclaims all other warranties, express, implied or statutory, relating to the Hosted Platform and Licensed Software, including but not limited the warranties of non-infringement of third-party rights, merchantability and fitness for a particular purpose.
(vi)
UNDER NO CIRCUMSTANCES SHALL CONTRACTOR BE LIABLE TO COMPANY FOR ANY LOSS, INJURY, OR DAMAGE RESULTING FROM OR ARISING OUT OF MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, DATA, SIGNALS, OR INFORMATION IN CONNECTION WITH VISUAL MONITORING SERVICES. FURTHER, CONTRACTOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO THE USE AND/OR INABILITY TO USE THE HOSTED PLATFORM AND LICENSED SOFTWARE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT WILLFUL MISCONDUCT, THE AGGREGATE LIABILITY OF CONTRACTOR ARISING IN CONNECTION WITH VISUAL MONITORING SERVICES, HOWEVER CAUSED, AND ON ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, STRICT LIABILITY, AND/OR OTHER TORT, SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO CONTRACTOR BY COMPANY UNDER THE APPLICABLE CUSTOMER AGREEMENT DURING THE TWELVE-MONTH PERIOD PRECEDING THE INITIAL CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION.
(b) SyteLink360® Subscription.
(i)
Equipment warranty. Unless otherwise agreed in the applicable Order, CONTRACTOR warrants equipment sold in connection SyteLink360 subscription for the earlier of eighteen (18) months from delivery or twelve (12) months from first use. CONTRACTOR will repair or replace defective equipment at its cost if notified by COMPANY during the warranty period. This warranty may be void if (i) equipment is not installed or commissioned by CONTRACTOR, (ii) is subject to abuse or misuse, (iii) is modified or repaired by COMPANY or third party without CONTRACTOR’s consent or (iv) if the defect is caused by COMPANY’S or third party’s utilities, network, or infrastructure.
(ii)
Functional warranty. If COMPANY’s SyteLink360® subscription includes real-time monitoring and self-dispatch, CONTRACTOR warrants that monitored equipment will meet performance guarantees within the parameters specified in the Order. This performance guarantee does not apply if non-conformance due to (i) accident, misuse, modification, repair, removal, or damage by COMPANY or third-party, (ii) COMPANY’S utilities, network, infrastructure, or (iii) if CONTRACTOR is unable to access equipment upon self-dispatch to effect repairs.
(iii)
Data warranty and Disclaimer. CONTRACTOR warrants only that the data captured, retrieved, and/or transmitted from equipment under a SyteLink360® subscription shall be consistent with the data transmitted by such equipment. CONTRACTOR makes no warranty or guarantee as to the accuracy, quality, usefulness, or reliability of data transmitted by equipment. CONTRACTOR further warrants only that the data stored, compiled and/or provided to COMPANY will be consistent with the data captured, retrieved and/or transmitted by COMPANY’s equipment. Any alerts or notifications transmitted via data monitoring or automation services are based on pre-determined characteristics and parameters and are not a substitute for COMPANY’s exercise of reasonable judgment, safety and security systems, or compliance obligations. CONTRACTOR does not process or collect sensitive personal information or personally identifiable information as that data is defined by law. CONTRACTOR shall exercise reasonable care in its storage and transmission of data, but makes no representations, promises, warranties, or guarantees as to the security of stored or transmitted data. COMPANY acknowledges that CONTRACTOR may utilize third-party providers for data storage and transmission, thus CONTRACTOR does not warrant that its data storage, retrieval, and/or transmission services will not suffer interruptions or delays, be error-free, or that stored or transmitted data is impervious to breach. CONTRACTOR’s data storage, retrieval, transmission, and/or compilation services are not a substitute for COMPANY’s exercise of reasonable judgment and responsibility for its safety, security, control, or compliance obligations.
(iv)
Subscription fees. SyteLink360® fees are not subject to refund or proration for cancellation during subscription term. Upon cancellation, any outstanding balance shall immediately become due and payable.
(v)
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL CONTRACTOR BE LIABLE TO COMPANY FOR ANY LOSS, INJURY, OR DAMAGE RESULTING FROM OR ARISING OUT OF MISTAKES, ERRORS, OMISSIONS, DELAYS OR INTERRUPTIONS IN THE RECEIPT, TRANSMISSION OR STORAGE OF ANY MESSAGES, DATA, SIGNALS, OR INFORMATION IN CONNECTION WITH A SYTELINK360® SUBSCRIPTION. FURTHER, CONTRACTOR SHALL NOT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION AND THE LIKE) ARISING OUT OF OR RELATING TO A SYTELINK360 SUBSCRIPTION® EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT IN THE EVENT OF WILLFUL MISCONDUCT, THE AGGREGATE LIABILITY OF CONTRACTOR ARISING IN CONNECTION WITH REAL-TIME MONITORED AUTOMATION SERVICES, HOWEVER CAUSED, SHALL NOT EXCEED THE AMOUNT OF FEES PAID TO CONTRACTOR BY COMPANY UNDER THE SYTELINK360® SUBSCRIPTION DURING THE TWELVE-MONTH PERIOD PRECEDING THE INITIAL CLAIM. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION
10. Default:
If either Party defaults in the performance of any of its obligations under the Order(subject to the provisions regarding Force Majeure), the non-defaulting Party may notify the defaulting Party of the default and the defaulting Party shall have 30 calendar days to remedy the default, provided, however, that with respect to a payment default, the defaulting Party shall have 10 calendar days to remedy the default. If such default is not cured within the applicable period, then the non-defaulting Party shall have the option to immediately terminate the Order upon written notice. This remedy shall not be exclusive, however, and the exercise thereof shall not be deemed to constitute a waiver of any other rights or remedies that either Party may have under applicable law in the event of the other Party’s default.
11. Force Majeure:
Any delays in or failures by either Party in performing its obligations hereunder (other than obligations to pay money), shall not constitute default hereunder or give rise to any claims for damages, if and to the extent that such delays or failures of performance of the Work are caused by occurrences of Force Majeure. For purposes of these Standard Terms and Conditions, “Force Majeure” includes, but is not limited to, Acts of God, wars or warlike action (whether actual or impending), arrests and other restraints of government (civil or military), terrorism, blockades, insurrections, riots, pandemics, epidemics, landslides, lightning, earthquakes, fires, sabotage, tropical storms and hurricanes, civil disturbances, tidal waves, explosions, shortages of suppliers, confiscation or seizure by any government or other public authority, and any other causes or events that are not reasonably within a Party’s control. The Party experiencing an occurrence of Force Majeure shall notify the other Party with reasonable promptness of the existence of any such Force Majeure and the probable duration thereof and shall provide the other Party from time to time with information regarding the same. The Party experiencing an occurrence of Force Majeure shall take all commercially reasonable actions to remove the cause of the occurrence of Force Majeure.
12. Assignment; Successors; Third Parties:
Neither Party shall assign or transfer all or any portion of the Order to any third party without the prior written consent of the other Party, which consent shall not be unreasonably withheld or delayed; provided, however, that a Party shall be entitled to transfer or assign all or any portion of the Order without such consent: (i) to any of its affiliates or subsidiaries; or (ii) to the purchaser of all or substantially all of the assets of the other Party. Subject to the foregoing, the Order shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns. Nothing in these Standard Terms and Conditions or in the Order is intended to confer any liabilities, duties, rights, benefits, or obligations hereunder upon any person or entity other than the Parties hereto and their respective permitted successors and assigns and expressly approved affiliates.
13. Waiver:
No benefit or right accruing to either Party under these Standard Terms and Conditions or under the Order shall be waived unless the waiver is in a writing signed by both Parties to the Order. The failure of either Party to exercise any of its rights under the Order or these Standard Terms and Conditions shall in no way constitute a waiver of any of those rights, nor shall such failure excuse the other Party from any of its obligations under the Order or these Standard Terms and Conditions.
14. Relationship of the Parties:
In the performance of the Work, CONTRACTOR is an independent CONTRACTOR. CONTRACTOR agrees that all persons engaged by CONTRACTOR to perform the Work, whether CONTRACTOR’s employees or subcontractors are not the employees of COMPANY. CONTRACTOR hereby agrees to immediately reimburse COMPANY for all taxes, interest and penalties required to be paid by COMPANY under any applicable laws covering CONTRACTOR’S employees or subcontractors for performance of the Work.
15. Audit:
CONTRACTOR shall maintain a true and correct set of records pertaining to Work performed and all transactions directly related thereto. CONTRACTOR agrees to retain all such records for a period of not less than two years from the end of the calendar year in which the Work was performed. COMPANY may conduct a supervised audit during regular business hours after reasonable prior written notice to CONTRACTOR of such audit, within such two-year period at COMPANY’s expense. The audit privileges granted to COMPANY under this Section 15 are limited strictly to verifying whether CONTRACTOR has been compliant with the Order and these Standard Terms and Conditions and, therefore, shall be narrowly construed and not to be used to obtain any proprietary or privileged information from CONTRACTOR such as, without limitation, CONTRACTOR’s financial margins under a firm fixed price agreement for the Work, CONTRACTOR’s methods of operations, or any details and/or breakdowns of costs incurred by CONTRACTOR, except for reimbursable costs allowable under an Order.
16. Confidentiality:
(a)
The phrase "Confidential Information" shall mean any information disclosed by one Party to the other in connection with the Order and the performance of the Work, including, without limitation, all information, documents, drawings, reports, manuscripts, text, drawings, photographs, video recordings, computer software, knowledge, data or other information relating to the Disclosing Party’s products, processes, know-how, designs, formulae, test data, COMPANY lists, business plans, marketing plans, strategies, materials, goods, equipment, and pricing and availability of any services or goods, that is in written, graphic, machine readable or other tangible form and is marked "Confidential", "Proprietary" or in some other manner to indicate its confidential nature. The phrase “Confidential Information” shall not include information that:
(i)
is or becomes publicly available through no breach of this Section 16 by the Receiving Party;
(ii)
is already in the Receiving Party's possession at the time of its disclosure by the Disclosing Party;
(iii) is disclosed to the Receiving Party by a third party who, to the Receiving Party's knowledge, is not prohibited from disclosing the information pursuant to a confidentiality agreement with the Disclosing Party;
(iv) is intentionally or purposely disclosed, exchanged or transmitted without restriction of confidentiality by Disclosing Party to any third party;
(v)
is independently developed by Receiving Party without reference or exposure to the confidential information received from Disclosing Party or
(vi)
is required to be disclosed to a governmental agency or entity, or by law or legal process, by advice of Receiving Party’s legal counsel.
(b)
Each Party (a “Receiving Party”) shall treat as confidential all Confidential Information received from or through the other Party (a “Disclosing Party”), shall not use such Confidential Information except as expressly permitted under these Standard Terms and Conditions, and shall not disclose such Confidential Information to any third Party without the Disclosing Party's prior written consent, provided, however, that a Receiving Party may disclose the Disclosing Party’s Confidential Information to any of Receiving Party’s affiliates, directors, officers, employees, attorneys, accountants, representatives, agents, consultants, advisors, partners, prospective partners, lenders, and prospective lenders (collectively, “Representatives”) on a reasonable need to know basis, provided that each Representative is apprised of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 16. Each Receiving Party shall be liable for any breach of this Section 16 by any of its Representatives. Each Receiving Party shall use at least the same degree of care that it uses to prevent the disclosure of its own confidential information of like importance, but in no event with less than reasonable care, to prevent the disclosure of Confidential Information disclosed to it or its Representatives by the Disclosing Party or its Representatives under the Order or these Standard Terms and Conditions.
(c)
Unauthorized use by a Receiving Party of the Disclosing Party's Confidential Information could diminish the value of such information. Therefore, if a Receiving Party breaches any of its obligations with respect to confidentiality or uses any of Disclosing Party’s Confidential Information in a manner that is not specifically authorized under these Standard Terms and Conditions, then the Disclosing Party shall be entitled to equitable relief to protect its interest therein, including but not limited to, injunctive relief. The rights and remedies of a Disclosing Party pursuant to this Section 16 are cumulative to, and shall not be deemed to exclude, any other right or remedy that such Disclosing Party may have pursuant to these Standard Terms and Conditions or otherwise, at law or in equity.
(d)
Notwithstanding anything to the contrary herein, any Party (and its respective employees, representatives, or other agents) may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of any transaction between the Parties and all materials of any kind (including opinions or other tax analyses) that are provided to such Party relating to such tax treatment and tax structure.
17. Entire Agreement:
Except as specifically agreed in writing by the Parties, these Standard Terms and Conditions supersede all negotiations, understandings and agreements between the Parties and constitutes the entire understanding and agreement between the Parties relative to the Work. No supplement, modification or waiver of these Standard Terms and Conditions or any Order shall be binding unless executed in writing by both Parties.
18. Notices:
Except as expressly provided otherwise herein, any notice from one Party to the other hereunder shall be given in writing. Any notice, payment or invoice hereunder shall be delivered to the contact person at the address of the Parties set forth on the Order pursuant to these Standard Terms and Conditions, until notice is given in accordance with this Section 18 by either Party to the other Party, in writing, of a change of contact person or address. Notice required to be given under these Standard Terms and Conditions shall be deemed given and delivered
(i)
upon receipt or five days after deposited in the U.S. Mail whichever is earlier, postage paid, via certified mail, return receipt requested,
(ii)
upon transmission via facsimile or email evidenced by the sender’s electronic mail or fax machine-generated confirmation of transmission,
(iii)
on the date of delivery by a reputable express delivery service, or
(iv)
when delivered in person.
19. Governing Law; Waiver of Jury Trial; Exclusive Forum and Jurisdiction:
These Standard Terms and Conditions and the Order shall be governed by and interpreted solely in accordance with the laws of the State of Texas, U.S.A., without giving effect to any conflict of law rules. Likewise, in the event of any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof and/or the Parties ' relationship arising therefrom, the Parties agree first to try in good faith to settle the dispute by mediation and any applicable statute of limitations shall be tolled until ten (10) days after the mediation has concluded If the matter is not resolved through mediation within thirty (30) days of serving notice of intent to mediate, then the parties shall submit their dispute to binding arbitration before one arbitrator. The mediation and arbitration shall be held in Houston, Texas in proceedings administered by and before, and in accordance with, the rules of, the American Arbitration Association. Judgment on the arbitrator's award may be entered by and in any Court having jurisdiction thereof. Any monetary award issued by the arbitrator shall be payable in U.S. Dollars. The arbitrators are not empowered to award consequential, indirect, special, punitive, or exemplary damages, and each Party hereby irrevocably waives any damages in excess of actual damages. In addition to the rights and remedies provided herein, the parties may seek injunctive and other provisional emergency relief from a Court in aid of arbitration or mediation and any such Court action shall be brought exclusively before a State Court located in Harris County, Texas or the United States District Court for the Southern District of Texas located in Harris County, Texas and each party irrevocably consents to the exclusive jurisdiction, and waives any objection to the venue, of said Court. Each party consents to service of process in the commencement of any action, mediation or arbitration proceeding by overnight mail delivery service with an additional copy sent by first-class mail, postage pre-paid, to the parties ' respective addresses as provided in this Agreement.
20. Attorneys' Fees:
In the event of any action or suit based upon or arising out of any alleged breach by any Party of any representation, warranty, or agreement in the Order or these Standard Terms and Conditions, the prevailing Party shall be entitled to recover reasonable attorneys' fees and other costs of such action or suit from the other Party.
21. Section Headings, Construction:
The headings of Sections in these Standard Terms and Conditions are provided for convenience only and will not affect its construction or interpretation. The Parties have been given an opportunity to negotiate these Standard Terms and Conditions. In the event an ambiguity or question of intent or interpretation arises, these Standard Terms and Conditions 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.
22. Severability:
If any term of these Standard Terms and Conditions or the Order is to any extent illegal, otherwise invalid, or incapable of being enforced, such term shall be excluded to the extent of such invalidity or unenforceability; all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term.