TERMS AND CONDITIONS
KEENE INDUSTRIAL SOLUTIONS (KIS)
TERMS AND CONDITIONS OF SALE FOR EQUIPMENT, PARTS, FIELD SERVICES, AND REPAIRS
EFFECTIVE MAY 31, 2023
Seller’s prices are based on these terms and conditions of sale. This document together with any additional writings signed by Seller and Buyer represents the “Agreement” between the parties for the sale of equipment, parts, control systems, field service, repairs, and all related matters. There are no other agreements, representations, or warranties other than those expressly provided for in this Agreement. These terms may not be modified except in a writing signed by Seller’s duly authorized representative. The parties agree that any additional and/or different terms or conditions contained in any document or writing sent to Seller at any time are hereby expressly objected to and rejected. Except as otherwise agreed to in a writing signed by Seller and Buyer, any work commenced by Seller shall be exclusively governed by the terms and conditions set forth herein and Buyer hereby acknowledges Seller’s detrimental reliance on the same. Any information contained on the web page of Seller is provided for general information purposes only, and are not a part of the Agreement.
- Payment Terms. Payment terms shall be as stated in Seller’s proposal or quotation. Except as otherwise agreed to in writing by the Parties, payment terms shall be as follows: 50% upon receipt of purchase order and balance due upon notification of readiness to shipand/or upon the completion of services as the case may be. Orders performed on time and material prices are invoiced weekly or as soon as otherwise practical and payable upon
- Tax Exclusion. No sales, use, or other taxes and duties imposed on any sales and/or services are included in the Seller’s price. Such taxes will be billed separately to Buyer. Seller will accept a valid exemption certification from Buyer; however, if the exemption certificate furnished is not recognized by the governmental taxing authority, Buyer shall promptly reimburse Seller for any applicable taxes paid.
- Interest on Late Payments. Unless otherwise agreed to in a writing signed by Seller and Buyer, invoices are due for payment upon presentation. Amounts not paid within thirty (30) days will be assessed a late fee of 1.5% per month or the maximum allowable by applicable law, whichever is less. Any payment received later than the scheduled due date may cause Seller to incur additional costs and Buyer agrees to pay Seller for the same. Payment received later than its scheduled date may cause a corresponding delay in the scheduled equipment delivery date. If payments are not made in accordance with the schedule KIS may, at its option, terminate this agreement.
- Right to Terminate/Suspend for Late Payment. Seller reserves its right, after providing Buyer with written notice and reasonable time to pay such late payment in full, to suspend its performance until such sums are paid in full or terminate the Agreement. In the deemed cancellation in accordance with Section 10. Any Cancellation Costs due and paid under this Agreement, as well as any sums due Seller for resuming its performance following a KEENE INDUSTRIAL SOLUTIONS (KIS)
TERMS AND CONDITIONS OF SALE FOR EQUIPMENT, PARTS, FIELD SERVICES, AND REPAIRS
EFFECTIVE MAY 31, 2023
suspension of the Agreement, shall be paid in the currency(ies) quoted by Seller for the
portion(s) of the Agreement being cancelled.
- No Set Offs. Buyer shall not be entitled to any retentions, set offs, or other self-help remedies.
- Delivery dates are subject to modification and based on Seller’s acceptance of intervening orders. Seller will make all reasonable commercial efforts to observe the dates indicated for delivery or other performance. Completion dates are based upon, among other things, receipt of drawings and other project documents for review/approval within fourteen (14) calendar days of their issuance, prompt receipt of the equipment and/or ready access to the equipment if it is to be worked on at Buyer’s premises, and upon receipt of all necessary information. Buyer agrees and accepts that Seller reserves the right to extend the deliveryand/or completion dates in the event Buyer is late in returning project drawings and/or documents.
- Unless otherwise agreed to in writing by the Parties, Title and full risk of loss (including transportation delays and losses) shall pass to Buyer FCA Point of Manufacture )(per Incoterms 2000). If Seller does not receive Buyer’s written instructions as to the identity of Buyer’s carrier or freight forwarded (as required by Incoterms 2000) within fourteen (14) calendar days following Seller’s issuance of its notification of readiness to ship to Buyer and/or if Buyer at any time requests a delay in delivery of any equipment and/or part sbeyond the dates stated in the purchase order or as otherwise mutually agreed to in writing by the Parties, then Seller may make such arrangements at Buyer’s sole cost and expense, including storage of goods. Buyer agrees and accepts that, in addition to the delays that will also result from the same, delivery of the goods shall be deemed to have occurred and title and full risk of loss of the same shall have passed to Buyer upon Seller’s delivery of the goods to the first carrier, as provided for in Section 21 below.
Although Seller will make all reasonable commercial efforts to observe the dates indicated for delivery or other performance, Seller shall not be liable for delays in delivery or in performance or failure to manufacture or deliver due to any cause not within Seller’s reasonable control or not avoidable by reasonable diligence. Causes not within Seller’s reasonable control include, but are not limited to strikes; slow-downs; lockouts; riots; war (declared or undeclared); acts of terrorists; fire; acts of God; accident; material disruption in the financial, labor, raw material, provisioning of utilities or credit markets; Buyer caused delays; or compliance with any aw, regulation or order, whether valid or invalid, of any government or agency, such as the Defense Priority and Allocation System (DPAS) under 15 CFR 700, and whether or not the same are in place at the time of the placement of the order. Seller’s schedule for performance shall be deemed suspended during any such excusable delay and for a reasonable period of time thereafter and Buyer shall accept performance hereunder. No penalty of any kind shall be effective against Seller for excusable delays in performance.
KEENE INDUSTRIAL SOLUTIONS (KIS)
TERMS AND CONDITIONS OF SALE FOR EQUIPMENT, PARTS, FIELD SERVICES, AND REPAIRS
EFFECTIVE MAY 31, 2023
As used herein, “performance” shall include, without limitation, engineering, design, fabrication, shipment, delivery, assembly, installation, testing, and warranty repair or replacement as applicable. If any such delay(s) lasts for a period longer than ninety (90) days in the aggregate, then Buyer may cancel this Agreement for convenience and Buyer shall compensate Seller pursuant to the provisions of Section 20 below.
Seller shall assume the defense of any claim or suit for infringement of any United States patent brought against Buyer to the extent such suit charges infringement of an apparatus claim by equipment sold to Buyer under the Agreement, provided (i) said equipment is built entirely to Seller’s design, (ii) Buyer promptly notifies Seller in writing of the claim or the filing of such suit and (iii) Seller has been given the opportunity by Buyer to settle or to defend the claim or suit, or to make changes in the equipment for the purpose of avoiding infringement.
To maintain delivery schedules and to best utilize Seller’s manufacturing capacity, Seller reserves the right to have all or any part of Buyer’s order engineered, manufactured, assembled and/or tested at any of Seller’s, its subsidiary’s or licensee’s plants anywhere in the world.
- A. Buyer’s acceptance of any deliverable(s) shall not be unreasonably withheld or delayed. Subject to the other provisions of this Agreement, Buyer may reject or revoke acceptance of deliverables only for material defects that substantially impair the value of the same. In the event of Buyer’s rejection or revocation, as provided for in this Section 7-A, Seller shall be provided a reasonable opportunity to cure any cause for rejection or revocation. As such, Seller, at its option and as Buyer’s exclusive remedies, shall cure the same by either; (i) repairing the deliverable with any shipping, customs, duties, levies, taxes or other charges being assessed to Buyer’s account, (ii) refunding an equitable portion of the contract price, or (iii) furnishing replacement equipment or parts, as necessary at the original shipping point.
- B. If factory inspections are required at Seller’s or its supplier’s place of manufacture, then Buyer or their representative shall as a result of their factory pre-shipment audit inspection furnish to Seller their list of audited findings of contractually “non-compliant” items within three (3) business days following Buyer’s factory pre-shipment audit inspection. Only those findings shall constitute a reason for Buyer to delay the release of the noncompliant item(s). Buyer’s failure to provide Seller with Buyer’s list of audit findings within the said three (3) business day period shall constitute Buyer’s unconditional authorization for Seller to ship the same to Buyer. For non-compliant items not listed or those found upon subsequent inspections, Seller, at its option, shall remedy the same so as to be compliant either prior to or after shipment. Nothing in this paragraph 7-B is intended to modify Seller’s warranty obligations and Buyer’s remedies, each as provided for in this Agreement.
- A. The specifications of the equipment require it to be operated at all times within certain parameters and may call for the use of governors, controllers, fluid conditioning and/or cleaning or other devices to insure that the operation remains within the parameters specified within the Agreement. Buyer agrees and understands that the equipment must be stored, installed, operated, and maintained within such parameters. For example, Seller assumes no responsibility for any variations in Buyer’s operating conditions that are not specified in this Agreement such as temperature, acidity, moisture content, and/or composition, among other parameters, of any fluid or gas coming into this equipment.
- B. At all times, whether such work is the subject of a warranty claim made pursuant to Section 9 below or non-warranty work, in the event that the equipment is to be worked on at Buyer’s site, Seller’s employees shall be given reasonable free and unobstructed access to the site and the equipment. Buyer shall provide, free of charge, safe transport to/from remote, offshore, or any restricted access locations to Seller’s employees, as well as meals and lodging accommodations at the Buyer’s site, when such are not readily available, equal to those given to its own employees. Buyer shall preserve and adequately maintain parts and tools necessary to enable completion of the Seller’s work. Buyer shall furnish safe and proper working conditions and safe storage for Seller’s property related to Seller’s services during the term of Buyer’s need thereof. When delays in the work are caused by Buyer, the time and expense caused by the delay will be charged to Buyer. When applicable and except as otherwise specifically agreed to in writing by Seller, Buyer shall furnish all necessary labor, cranes, special tools not furnished by Seller, parts, materials, steam, electricity, gas oil, water, and other materials and supplies required to repair and operate the machinery. Except as otherwise specifically agreed to in writing, the responsibility of Seller’s employees shall be limited to performing technical advisory services. Seller shall not be required to provide any supervision of Buyer’s employees, subcontractors, or other agents.
- C. Buyer shall supply to Seller the required Material Data Sheets (MSDS) per Federal Regulation 29CFR1910.1200 Hazardous Communications (or their equivalent in the applicable local jurisdiction) for each hazardous material substance which Seller’s employees may contact in the course of their work assignment.
- A. Except as provided for in Section 9-C below, Seller warrants that the equipment and parts manufactured by Seller and delivered hereunder will be free from defects in material and workmanship and will conform to the specifications agreed to in writing. Seller warrants its equipment and parts for a period of thirty (30) days from the date of initial start-up or ninety (90) days from the date of shipment, whichever occurs first. Buyer shall immediately report in writing to Seller any claimed defect promptly upon discovering the same. After receiving such notice from Buyer and substantiation by Seller of the claim as being within the warranty, Seller shall, at its option: (i) repair Buyer’s equipment with any shipping, customs, duties, levies, taxes, or other charges being assessed to Buyer’s account, (ii) refund an equitable portion of the contract price, or (iii) furnish replacement equipment or parts, as necessary at the original shipping point. Buyer agrees that any non-warranty work or services done at the request of Buyer shall also be exclusively governed by these terms and conditions even if Buyer later declares the same to be a warranty claim covered by the same. In no event will Seller at any time be responsible for disassembling, and/or reassembling, uninstalling and/or reinstalling any equipment.
- B. Seller warrants that its work when performed and services when rendered will meet all of the specific requirements, if any, of this Agreement and will be done in a good and workmanlike manner. Seller warrants its work and/or services for a period of three (3) months from completion of work and/or services. Any claims for defective work must be made in writing immediately upon discovery, and in any event, within three (3) months from the date of completion by Seller. After notice from Buyer and substantiation by Seller of the claim as being within the warranty, Seller shall, at its option: (i) repair Buyer’s equipment at the original shipping point, (ii) refund an equitable portion of the contract price, (iii) furnish replacement equipment or parts, as necessary, at the original shipping point, or (iv) in the case of service, re- perform the service. In no event will Seller at any time be responsible for disassembling, and/or reassembling, uninstalling and/or reinstalling any equipment.
- C. With respect to major equipment supplied but not (engineered or) manufactured by Seller, Seller will fulfill its warranty obligations by solely securing warranty rights covering this major equipment not less than the warranty rights described in this Section and Buyer agrees to be bound by the same limitations and conditions as set forth in this Section 9. Seller agrees to be Buyer’s primary contact and advocate on any warranty claim for such equipment, and to make reasonable effort on behalf of Buyer to pursue claims against the applicable original manufacturer of such major equipment. Substantiation of warranty claims for such major equipment, however, shall be by the original manufacturer of the equipment. As such, Seller shall provide a remedy to Buyer only to the extent that the claim is substantiated and remedied by the original supplier of the equipment.
- D. Seller shall not be liable for the cost of any repair, replacement, or adjustment to the equipment or parts made by Buyer and for labor performed by Buyer or others.
E. No equipment or part furnished by Seller shall be deemed to be defective as a result of Buyer’s failure to properly store, install, operate, or maintain the equipment or parts in accordance with good industry practices or specific recommendations made by Seller and/or within the inherent operating limitations of the equipment and/or parts, all of which are Buyer’s responsibilities.
F. Any performance warranty on equipment, parts, field services, or repairs must be specifically agreed to in writing by Buyer and Seller and incorporated into the applicable Purchase Order and shall be subject to the terms and conditions of this Agreement. The effects of corrosion and/or erosion due to any fluid or gas as well as normal wear and tear are specifically excluded from Seller’s warranty and responsibilities.
G. If Buyer in any way directly or indirectly instructs Seller to make specific modifications to Seller’s equipment or parts or those of Seller’s vendors, then Buyer further agrees that Buyer’s decision to make such modifications was made without any reliance, representation, direction suggestion, or warranty being offered or given by Seller and that the decision to proceed with such modifications is at Buyer’s sole risk and cost. Buyer agrees that such modifications shall be governed by the terms and conditions of the then current version of Seller’s “Agreement for Modification to Equipment” which is hereby incorporated into this Agreement by reference.
H. THE FOREGOING WARRANTIES AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES WHETHER WRITTEN, ORAL, IMPLIED, OR STATUTORY. SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION OF ANY KIND. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AR HEREBY DISCLAIMED.
A. Buyer may request changes in the work to be performed. However, Buyer and Seller must first agree in writing upon the increase or decrease in the amount due under the Purchase Order or in the time required for performance, if any, prior to the Seller implementing the changes to the work. However, with respect to time and material work, Buyer and Seller expressly agree that a signed time sheet (or other like document) for work that goes beyond the stated amount in any Purchase Order (or other work authorization/approval document) shall constitute a change order and Buyer’s agreement to continue to pay Seller for such additional work at the agreed upon rates, all of which shall continue to be exclusively governed by the terms and conditions of this Agreement. Cancellation of this Agreement in whole or any order or any portion thereof associated with the equipment constituting the deliverables shall be subject to Seller’s Schedule of Cancellation Costs as set forth in KIS’s form number “KIS001,” (hereinafter the “Form”, “KIS001” or as otherwise referenced in this Agreement) that is in effect at the time that Seller issues its quotation and which is incorporated into this Agreement by reference. However, if different cancellation charges are agreed to by the Parties in writing, then the Parties agree that said different cancellation charges are hereby incorporated into this Agreement by reference and the same shall instead govern, supersede, and replace those set forth in KIS’s Form KIS001.
B. With respect only to repairs and parts (and provided different cancellation charges are not specifically provided for in KIS’s proposal and/or quotation), if Seller receives Buyer’s written cancellation notice at least thirty (30) days in advance of the delivery/performance date associated with the same, then Buyer agrees to immediately pay Seller the greater of 75% of the stated value or actual value of the parts and/or repairs being cancelled. If Seller receives less than thirty (30) days advance written notice, then Buyer agrees to immediately pay Seller 100% of the stated value of the same. In addition, if Buyer at any time cancels any field services, then Buyer agrees to immediately pay Seller’s invoice in full for all field services completed as of the actual date that Seller receives Buyer’s cancellation notice plus 15% of the stated value (as provided for in this Agreement) of those field services that would have been performed but for Buyer having cancelled the same or the demobilization costs, whichever is higher.
C. If Seller secures any foreign currency hedge (e.g. forward contracts, currency options, swaps or similar instruments) to cover foreign exchange rate variations due to an order being in a currency other than currency(ies) of the country(ies) in which Seller manufactures or procures the equipment or parts that are the subject of the order and if the order is cancelled or suspended, all losses incurred to settle such hedges shall be added to Seller’s Schedule of Cancellation Costs (i.e. KIS001) or the cancellation charges agreed to by the parties in writing.
- 1. THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE AND, NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE TOTAL AGGREGATE LIABILITY OF SELLER WITH RESPECT TO ANY CLAIMS UNDER THIS AGREEMENT OR REGARDING THE EQUIPMENT, SERVICES, WORK, SPARE OR REPLACEMENT PARTS AND/OR SERVICES AS FURNISHED HEREUNDER, WHETHER BASED IN CONTRACT, INDEMNITY TORT, STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE PRICE PAID FOR THE UNIT OF EQUIPMENT, PARTS, OR SERVICES UPON WHICH ANY SUCH CLAIM IS BASED.
- SELLER SHALL NOT BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR (A) ANY
CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, OR ANY OTHER INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT OR OUT OF ANY BREADK THEREOF, OR (B) FOR ANY DAMAGES (DIRECT OR INDIRECT) RESULTING FROM LOSS OF USE, LOST PROFITS OR REVENUE, INTEREST, LOST GOODWILL, WORK STOPPAGE, IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NONOPERATION, INCREASED EXPENSES OF OPERATION, COST OF PURCHASE OF REPLACEMENT POWER OR CLAIMS OF BUYER OR CUSTOMERS OF BUYER FOR SERVICE INTERRUPTION AND/OR ANY OTHER SIMILAR TYPES OF DMAGES, WHETHER OR NOT SUCH LOSS OR DAMAGE IS BASED ON CONTRACT, INDEMNITY, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF SELLER IS ADVISED OF THE POSSIBILITY OF THE SAME IN ADVANCE.
BUYER AND SELLER EACH (AS APPLICABLE, THE “INDEMNITOR”) AGREE TO DEFEND, INDEMNIFY AND HOLD THE OTHER, THE OTHER’S AFFILIATES, AND THE OFFICERS, DIRECTORS, EMPLOYEES, REPRESENTATIVES, CONTRACTORS, SUBCONTRACTORS, AND GEENTS OF ALL THE FOREGOING (THE “INDEMNIFIED PARTIES”) HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS OR CAUSES OF ACTION:
- 1. EXCEPT AS PROVIDED IN SECTION 11.B.2 BELOW, FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS OR REVENUE (WHETHER DIRECT OR INDIRECT LOSSES), AND LOST OR DELAYED PRODUCTION LOSSES OR ANY OTHER LOSSES REFERRED TO IN SECTION 11A.2 ABOVE INCURRED BY THE INDEMNITOR, WHETHER DIRECTLY, INDIRECTLY OR OTHERWISE, INCLUDING BY VIRTUE OF ANY SUCH CLAIMS OR CAUSES OF ACTION ASSERTED BY ANY THIRD PARTY AGAINST THE INDEMNITOR, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR ON ANY OTHER THEORY OF LAW AND REGARDLESS OF THE NEGLIGENCE OF THE INDEMNIFIED PARTIES AND EVEN IF INDEMNITOR IS ADVISED OF THE POSSIBIILITY OF SUCH DAMAGES IN ADVANCE, AND
2. FOR ANY THIRD PARTY PERSONAL INJURY AND/OR PHYSICAL PROPERTY DAMAGES, BUT SOLELY TO THE EXTENT CAUSED BY INDEMNITOR’S NEGLIGENCE.
Before purchasing the same, Buyer shall advise Seller in writing if any deliverables will be used in a nuclear facility. Thereafter, if Seller elects to sell the deliverables, then Buyer shall, prior to such use, secure insurance or a governmental indemnity protecting Seller and its suppliers against all liabilities and claims. Buyer further agrees to defend, indemnify, and hold Seller and its suppliers harmless from any damage, including loss of use, in any manner, arising out of a nuclear incident, even if due in whole or in part to the negligence of Seller or its suppliers.
The construction, validity and performance of this Agreement and all non-contractual obligations arising from or connected with this Agreement shall be interpreted in accordance with the laws of the state of Texas of the USA, excluding its conflict of laws provisions (including the United Nations Convention on the International Sale of Goods “UNCISG”). Headings are for convenience only and shall be given no force nor effect.
Whenever a dispute arises between the parties, relating to or arising out of this Agreement, the parties agree to attempt to have their senior management amicably settle the matter. The parties agree that any dispute that is not settled in a timely manner (whether for breach of contract, tort, products liability, payments or otherwise) shall be resolved by binding arbitration before a panel of three arbiters under the Commercial Dispute Resolution Procedures of the American Arbitration Association. Each party shall appoint one arbiter. The two appointed arbiters shall then select the third arbiter. A majority vote of the three arbiters shall be considered a final decision by the panel. The arbitration award shall be a speaking award setting out the reasons for the same in writing. However, in no event shall said panel of arbiters expand nor restrict any of the Party’s respective rights or obligations beyond those as provided for in this Agreement. In addition, to the extent that each party prevails, said party shall be awarded that proportion of its reasonable costs and expense (including attorney’s fees) that it actually incurred in arbitrating the matter. Judgment upon the award may be entered in any court having jurisdiction. The parties shall cooperate in providing reasonable disclosure of relevant documents. The site of such arbitration shall be in Baytown or Houston, Texas.
The provisions of Sections 1, 2, 3, 4, 5, 7 , 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 20, and 21 shall survive the termination, expiration, or cancellation of this Agreement.
Prices quoted by Seller shall be subject to adjustment in the event of substantial rises in the price of materials due to any cause not within Seller’s control or not avoidable by reasonable diligence. Seller shall promptly notify Buyer of any actual change in Seller’s cost of any material that would result in such a price adjustment. Material cost adjustments made by Seller, pursuant to this paragraph, shall become effective ten (10) days from the date that Seller sends its written notice of the same to Buyer. At Buyer’s request, Seller shall provide Buyer with written substantiation and verification of any material cost changes resulting in a price adjustment. Unless otherwise noted in the same, quotations are valid for thirty calendar days.
1. Buyer shall indemnify and hold Seller harmless against any expense or loss or other damage resulting from infringement of patents or trademarks arising from Seller’s compliance with any designs, specifications or instructions of Buyer or Seller’s use of any third party drawings supplied by Buyer as provided for in paragraph B below. Unless otherwise agreed to in writing by Seller and Buyer, Seller exclusively retains all ownership right, title and interest in any intellectual property (“Licensed Materials”), including but not limited to software, that is included in or with the deliverables, and any inventions, developments, improvements or modifications pertaining thereto. Buyer shall not disclose Seller’s designs, software, manufacturing drawings, plans, standards, specifications, or other confidential information to any third party without Seller’s prior written consent nor use the same to the detriment of Seller.
2. Seller grants to Buyer a non-sublicensable, transferable (as limited herein), perpetual, nonexclusive, worldwide license to use the Licensed Materials solely to install, operate, and maintain the deliverables in strict compliance with the terms of this Agreement (“End User License”). The End User License is transferable to a third party via the rightful sale or transfer of the deliverables, provided that third party has agreed to be bound to the terms ofr this Agreement as though an original party to the same. Buyer, and any third party rightfully receiving the Licensed Materials from Buyer as provided for under this Agreement, agrees to not sublicense, distribute, transfer or provide access to the Licensed Materials except as provided for in the End User License.
3. Buyer agrees to not do any of the following: (i) decompile, reverse engineer, disassemble, modify, reduce the Seller’s software to human perceivable form (e.g. source code or any intermediate language); (ii) provide the software to a third party in any form other than the unaltered binary executable form provided by the Seller, (iii) merge the software with other software, modify or create derivative works based on the software; (iv) remove, obscure, or alter any notice of the copyright or other propriety legends on the software; (v) use, or allow the use of, the software in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations.
4. If Buyer provides Seller with any third party drawings and/or information in connection with Seller’s maintenance, modification and/or repair of any third party’s equipment, then Buyer represents and warrant and agrees that (i) Buyer has the right to use and copy any and all information, including drawings, that Buyer supplies to Seller pursuant to this Agreement, and (ii) Buyer has the right to authorize and hereby does authorize Seller, to use and copy any information, including drawings, that Buyer supplies to Seller to enable Seller to perform services and supply parts and equipment pursuant to this Agreement; and (iii) unless Seller is informed otherwise in writing, all information provided by Buyer to Seller pursuant to this Agreement is free and clear of any proprietary rights of third parties; and (iv) Buyer shall defend, indemnify, and hold Seller and its suppliers harmless from and against all claims and damages asserted by any third party.
Before Seller or Buyer disclosed their and/or any third party’s confidential information to the other, the Parties agree to first execute a mutually agreed upon confidentiality agreement.
A. The Buyer hereby commits that the equipment, parts, technology or software purchased from the Seller will not be exported or re-exported in violation of any United States embargoes or sanctions. Further, the Buyer commits that these goods will not be exported or re-exported in violation of United States export control law, and that they will not be diverted contrary to any United States law.
B. The Buyer agrees that it and its employees or representatives will not, directly or indirectly, in the name of, on behalf of, or for the benefit of Seller, offer, pay, promise to pay, or authorize the payment of any money or offer, give, promise, to give or authorize the giving of anything of value, to any official, agent or employee or any government or governmental agency, or to any political party or official, employee or agent thereof, or any candidate for political office, for the purpose of influencing any act or decision of such person in their official capacity, or for the purpose of inducing such persons to use their official capacity to influence any act or decision of their government or any instrumentality thereof, in order to obtain or retain business, or provide a business advantage related to this Agreement or in any way violate any provision of the FCPA. In the event that Buyer fails to honor its obligations in this paragraph, and in addition to Buyer defending, indemnifying and holding Seller harmless from and against any fines, penalties and/or damages resulting from the same, Seller may, at its discretion, terminate the contract and receive compensation in accordance with the Seller’s cancellation schedule.
If Seller receives a credit report from an independent agency that indicates that Buyer’s credit worthiness is in jeopardy and if Buyer’s written response to Seller’s request for adequate assurances does not reasonably satisfy Seller’s concerns, then Buyer agrees to within (30) days of Seller’s written notice put into place for Seller’s benefit security instruments that are reasonably satisfactory to Seller. Buyer further agrees that Seller may suspend its performance or treat Buyer’s failure to put into place said security instruments as though Buyer has cancelled the Agreement for convenience and as such Buyer agrees to compensate Seller pursuant to Seller’s Schedule of Cancellation Cost (i.e. KIS001) or cancellation charges as specifically provided for in this Agreement.
A. If Buyer suspends, delays, or otherwise encumbers (a “Suspension”) Seller’s performance under this Agreement for a period of time that in the aggregate exceeds sixty (60) days, then unless otherwise agreed to in writing by Seller, Seller may, at its option, either: 1) treat such Suspension as though Buyer cancelled this Agreement for convenience and as such Buyer agrees to pay Seller for such deemed cancellation pursuant to Section 10 and such other charges as specifically provided for in this Agreement, or 2) if Buyer requests in writing, and Seller accepts such request, resume performance provided that Buyer also agrees in such request to pay Seller for all reasonable costs and expenses incurred related to the Suspension and the resumption of performance and to reschedule all delivery and milestone dates as required by Seller. If Seller treats a Suspension as though Buyer cancelled this Agreement for convenience, Seller may make arrangements to deliver the affected goods or work-in-process to Buyer or to a third party at the cost and risk of Buyer. Upon such election or upon such delivery, transfer of title and full risk of loss shall pass to Buyer. Buyer agrees to pay all handling, transportation, storage, and insurance costs associated with the delivery to and storage by such third party and shall pay Seller or such third party, as applicable, any invoices for the same. Buyer shall also reimburse Seller for reasonable costs and expenses incurred as a result of any Suspension by Buyer that does not in the aggregate exceed sixty (60) days.
B. Buyer may at any time cancel this Agreement for convenience by providing Seller with Buyer’s prior written notice to the same. If Buyer cancels this Agreement for convenience, then Buyer agrees to compensate Seller pursuant to Seller’s Schedule of Cancellation Cost (i.e. KIS001) or cancellation charges as specifically provided for in this Agreement.
C. Any Cancellation Costs due and paid under this Agreement, as well as any sums due Seller for resuming its performance following a Suspension, shall be paid in the currency(ies) quoted by Seller for the portion(s) of the Agreement being Suspended.
In addition to the provisions of Section 20 relating to Suspensions, Buyer further agrees that whenever Seller is otherwise authorized and/or permitted (pursuant to the terms of this Agreement) to ship and/or store the equipment and/or parts (i.e. the goods) on its behalf, Buyer agrees that such costs and expense incurred to effect said shipments and/or the storage of the goods shall be at Buyer’s dole cost and expense. Buyer agrees that any third party involved in storing or shipping the goods may directly bill Buyer and that Buyer will promptly pay said invoiced costs and expense in full. In all cases Buyer further agrees that transfer of title and full risk of loss to the goods shall pass to Buyer upon Seller’s delivery of the same to the third party and that Seller shall have no further obligation with respect to delivering the goods. Thereafter, Buyer will look solely to said third party to deliver the goods to Buyer. Buyer agrees to be solely responsible for insuring the goods from and against any loss and/or damage to the same
END OF TERMS AND CONDITIONS