Terms & Conditions for Sale

Seller reserves the right to amend these Terms and Conditions for Sales of Products and Services in its sole discretion.

NOTICE: Sale of any Products or Services is expressly conditioned on Buyer's assent to these Terms and Conditions. Any acceptance of Seller's offer for Products and/or Services is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer. No facility entry form shall modify these Terms and Conditions even if signed by Seller's representative. Any order or Seller’s performance shall constitute Buyer's assent to these Terms and Conditions. Unless otherwise specified in a quotation, Seller's quotation shall automatically expire thirty (30) days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s acceptance.

1. Definitions
1.1 "Buyer" means the entity, including an authorized Seller distributor, to which Seller is providing Products or Services under the Contract.

1.2 "Contract" means either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by Seller in writing, for the purchase and sale/provision of Products or Services, together in either case with these Terms and Conditions, the Express Limited Warranty, any Distributor Agreement (“Distributor Agreement”) by and between Buyer and Seller which is in effect as of the Contract Date in the event Buyer is an authorized Seller distributor (the “Distributor”), Seller's final quotation, the agreed scope(s) of work, and Seller's order acknowledgement. In the event of any conflict, the Distributor Agreement shall take precedence over other documents included in the Contract if the Buyer is a Distributor and if the Buyer is not a Distributor then these Terms and Conditions will have the highest precedence, followed in order in each case by the Express Limited Warranty, the agreed scope(s) of work, any contract agreement signed by the parties, Seller’s Order Acknowledgment, Seller’s final quotation, and the purchase order.

1.3 "Contract Price" means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.

1.4 “Express Limited Warranty” means CFR Engine, Inc.’s (“CFR”) Express Limited Warranty in effect on the effective date of the Contract.

1.5 "Hazardous Materials" means any toxic or hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good, radioactive material, petroleum or petroleum-derived products or byproducts, or any other chemical, substance, material or emission, that is regulated, listed or controlled pursuant to any applicable national, state, provincial, or local law, statute, ordinance, directive, regulation or other legal requirement of the United States ("U.S.") or the country of the Site.

1.6 "Insolvent/Bankrupt" means that a party is insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy, insolvency, dissolution or liquidation laws.

1.7 "Products" means the equipment, parts, materials, supplies, Software, and other goods Seller has agreed to supply to Buyer under the Contract.

1.8 "Seller" means the entity providing Products or performing Services under the Contract.

1.9 "Services" means the services Seller has agreed to perform for Buyer under the Contract.

1.10 "Site" means the premises where Products are used or Services are performed, not including Seller's premises from which it performs Services.

1.11 "Software" means a computer program or data collection held on a physical playback or storage device from where the program can be recalled, played back or communicated in some other way, either directly or with the aid of additional equipment.

1.12 "Terms and Conditions" means these "Terms and Conditions for Sale of Products and Services” (Form 20151), including any relevant addenda pursuant to Article 18, together with any modifications or additional provisions specifically stated in Seller's final quotation or specifically agreed upon by Seller in a writing signed by Seller.

2. Payment
2.1 Seller reserves the right in its absolute discretion to change the payment terms and unless otherwise agreed upon in writing, Buyer shall pay Seller for the Products and Services by paying cash in advance for all invoiced amounts in U.S. dollars, without set-off for any payment from Seller not due under this Contract, within thirty (30) days from the invoice date. For each calendar month, or fraction thereof, that payment is late, Buyer shall pay a late payment charge computed at the rate of 1.5% per month on the overdue balance, or the maximum rate permitted by law, whichever is less.

2.2 At Seller's request and sole discretion, Buyer shall at its expense establish and keep in force payment security in the form of an irrevocable, unconditional, signed letter of credit or bank guarantee allowing for pro-rata payments as Products are shipped and Services are performed, plus payment of cancellation and termination charges, and all other amounts due from Buyer under the Contract ("Payment Security"). The Payment Security shall be (a) in a form, and issued or confirmed by a bank acceptable to Seller, (b) payable at the counters of such acceptable bank or negotiating bank, (c) opened at least one hundred twenty (120) days prior to both the earliest scheduled shipment of Products and commencement of Services, and (d) remain in effect until the latest of thirty (30) days after the last scheduled Product shipment, completion of all Services and Seller's receipt of the final payment required under the Contract. Buyer shall, at its expense, increase the amount[s], extend the validity period(s) and make other appropriate modifications to any Payment Security within ten (10) days of Seller's notification that such adjustment is necessary in connection with Buyer's obligations under the Contract.

2.3 Seller is not required to commence or continue its performance unless and until any required Payment Security is received, operative and in effect and all applicable Progress Payments have been received. For each day of delay in receiving Progress Payments or acceptable Payment Security, Seller shall be entitled to a matching extension of the schedule. If at any time Seller reasonably determines that Buyer's financial condition or payment history does not justify continuation of Seller's performance, Seller shall be entitled to require full or partial payment in advance or otherwise restructure payments, request additional forms of Payment Security, suspend its performance or terminate the Contract.

3. Taxes and Duties
Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Contract ("Seller Taxes"). Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Seller or its subcontractors) in relation to the Contract or the performance of or payment for work under the Contract other than Seller Taxes ("Buyer Taxes"). The Contract Price does not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Contract Price without reduction for Buyer Taxes. Buyer shall provide to Seller, within one (1) month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.

4. Deliveries; Title Transfer; Risk of Loss; Storage
4.1 Seller shall deliver Products to Buyer FCA Seller's named facility (Incoterms). Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within ten (10) days after receipt.

4.2 For shipments that do not involve export, title to Products shall pass to Buyer upon delivery in accordance with Section 4.1. For export shipments from a Seller facility or warehouse outside the U.S., title shall pass to Buyer upon delivery in accordance with Section 4.1. For shipments from the Seller facility or warehouse in the U.S. to Buyer in another country for re-sale, title shall pass to Buyer upon delivery in accordance with Section 4.1. For shipments from the Seller facility or warehouse in the U.S. directly to Buyer in another country, title shall pass immediately to Buyer after each item departs from the territorial land, seas and overlying airspace of the U.S. The 1982 United Nations Convention of the law of the Sea shall apply to determine the U.S. territorial seas. Notwithstanding the foregoing, Seller grants only a license, and does not pass title, for any Software provided by Seller under this Contract, and title to any leased equipment remains with Seller.

4.3 Risk of loss shall pass to Buyer upon delivery pursuant to Section 4.1, except that for export shipments from the U.S., risk of loss shall transfer to Buyer upon title passage.

4.4 If any Products to be delivered under this Contract or if any Buyer equipment repaired at Seller's facilities cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer or its other contractors, Seller may ship the Products and equipment to a storage facility, including storage to the place of manufacture or repair, or to on agreed freight forwarder. If Seller places Products or equipment into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller's invoices, and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products and repaired equipment available to Buyer for delivery.

4.5 If repair Services are to be performed on Buyer's equipment at Seller's facility, Buyer shall be responsible for, and shall retain risk of loss of, such equipment at all times, except that Seller shall be responsible for damage to the equipment while at Seller's facility to the extent such damage is caused by Seller's negligence.

5. Warranty
5.1 The Products shall be delivered free from defects in material and workmanship and that Services shall be performed in a competent, diligent manner as further set forth in the standard Express Limited Warranty which has been provided to Buyer and to which Buyer acknowledges its receipt and agreement.

5.2 In the event a defect in the Products or Services shall arise as provided in Section 5.1 above within the warranty period as set forth in the Express Limited Warranty (the “Warranty Period”) and such defect is attributable to Seller and/or CFR, Seller or its designees shall within a reasonable period of time, at Seller’s sole option, repair or replace with new or refurbished Products or components thereof, the Products or Services (or defective portion thereof) or refund a portion of the purchase price attributable to defective portion in accordance with this Contract (the “Warranty”). This is not a warranty of performance, but a limited warranty as to the condition of the Products and Services at the beginning of the Warranty Period.

BUYER’S SOLE AND EXCLUSIVE REMEDY UNDER THE WARRANTY SHALL BE LIMITED TO, AT SELLER’S SOLE DISCRETION, THE REPAIR OR REPLACEMENT WITH NEW OR REFURBISHED PRODUCT OR COMPONENTS THEREOF, OF ANY DEFECTIVE PRODUCTS OR SERVICES OR PART THEREOF, OR A REFUND OF A PORTION OF THE PURCHASE PRICE PAID BY BUYER FOR THE DEFECTIVE PRODUCTS OR SERVICES IN EXCHANGE FOR BUYER’S RETURN OF THE DEFECTIVE PRODUCTS AND/OR SERVICES TO SELLER, FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES OF ANY NATURE. IN NO EVENT SHALL SELLER’S OR CFR’S LIABILITY HEREUNDER OR OTHERWISE ARISING RELATIVE TO THE SALE OF THE PRODUCTS AND SERVICES EXCEED IN ANY EVENT OR UNDER ANY THEORY OR CAUSE OF ACTION, THE PURCHASE PRICE PAID BY BUYER TO SELLER FOR THE DEFECTIVE PRODUCTS AND SERVICES.

THE WARRANTY HEREIN IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES OF SELLER, THE MANUFACTURER/PROVIDER OF THE PRODUCTS/SERVICES INCLUDING CFR, AND ANY OTHER ENTITY INVOLVED IN THE DESIGN, MANUFACTURE, SALE, PROVISION OR SERVICING OF THE PRODUCTS, SERVICES (OR ANY PORTION THEREOF) AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES AND RELATED COMPANIES (HEREINAFTER COLLECTIVELY REFERRED TO AS THE “MANUFACTURING AND SELLING COMPANIES”), EXPRESS, IMPLIED OR STATUTORY, OR OTHERWISE CREATED UNDER APPLICABLE LAW, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY AND ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE. THERE ARE NO EXPRESS WARRANTIES OTHER THAN THOSE CONTAINED HEREIN, AND ANY REPRESENTATIONS AS TO PERFORMANCE AND OTHER MATTERS, EXCEPT AS CONTAINED HEREIN, WERE FOR ILLUSTRATIVE PURPOSES ONLY AND DO NOT CONSTITUTE A WARRANTY. IN NO EVENT SHALL SELLER AND/OR THE MANUFACTURING AND SELLING COMPANIES INCLUDING CFR BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY, TREBLE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, LOSS OF REVENUES, MONETARY REQUESTS RELATING TO RECALL EXPENSES AND REPAIRS TO PROPERTY INCLUDING THIRD-PARTY CLAIMS, OR DAMAGES RELATED TO INJURIES TO PERSONS OR PROPERTY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER OR NOT CAUSED BY OR RESULTING FROM DEFECTS IN THE PRODUCTS/SERVICES, THE NEGLIGENCE OF SELLER AND/OR THE MANUFACTURING AND SELLING COMPANIES, BREACH OF CONTRACT, STRICT LIABILITY FOR INJURIES TO PERSON OR PROPERTY, OR OTHER TORT. IN ADDITION, THE WARRANTY SHALL NOT APPLY TO ANY PRODUCTS/SERVICES OR PORTIONS THEREOF WHICH HAVE BEEN SUBJECTED TO ABUSE, MISUSE, IMPROPER INSTALLATION, MAINTENANCE OR OPERATION, ELECTRICAL FAILURE OR ABNORMAL CONDITIONS; IN THE EVENT BUYER AND/OR ANY OPERATOR FAILS TO COMPLY WITH ANY OPERATIONAL OR MAINTENANCE GUIDELINES OR REQUIREMENTS; PHYSICAL ABUSE OF THE PRODUCTS OR ANY COMPONENT THEREOF; ACTS OF VANDALISM BY ANY PERSONS OTHER THAN SELLER, ITS EMPLOYEES, AGENTS, OR SUBCONTRACTORS; WHERE PARTS OR COMPONENTS OF THE PRODUCTS ARE CHANGED OR MATERIALS USED WHICH DO NOT CONFORM TO SELLER’S ORIGINAL SPECIFICATIONS; WHERE THE DEFECT IS CAUSED BY DESIGNS OR SPECIFICATIONS PROVIDED BY BUYER; ACCIDENTS OR DAMAGE RESULTING FROM, INCLUDING, BUT NOT LIMITED TO, FIRE, WATER, WIND, HAIL, LIGHTNING, ELECTRICAL SURGE OR FAILURE, EARTHQUAKE, THEFT OR SIMILAR CAUSES NOT CAUSED OR CONTRIBUTED TO BY THE SOLE NEGLIGENCE OF SELLER OR ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS; AND TO PRODUCTS WHICH HAVE BEEN TAMPERED WITH, ALTERED, MODIFIED, REPAIRED OR REWORKED BY ANYONE NOT APPROVED BY SELLER. Buyer assumes all risk and liability resulting from the use of Products, whether used singly or in combination with other goods and/or services. Seller shall be given reasonable and prompt opportunity to examine any claim by the Buyer. Notwithstanding anything to the contrary in the Contract, Seller shall not be responsible for, and shall incur no liability with respect to, any information including, but not limited to, specifications, designs and drawings supplied by Buyer or any of its subcontractors to Seller. THE PARTIES ACKNOWLEDGE AND AGREE THAT THE LIMITATION OF DAMAGES AND EXCLUSIONS OF WARRANTIES PROVISIONS SET FORTH IN THIS PARAGRAPH SURVIVE EVEN IF THE EXCLUSIVE WARRANTY SET FORTH ABOVE IS DEEMED TO FAIL OF ITS ESSENTIAL PURPOSE. All descriptions, specifications and/or illustrations of the Products in catalogues, brochures and/or price lists or otherwise provided by Seller, CFR and/or its representatives are intended for general guidance only and the Seller is not responsible for any errors or omissions therein or for any loss or damage resulting from reliance on them. No agent, employee or representative of Seller or the Manufacturing and Selling Companies has the authority to bind Seller or the Manufacturing and Selling Companies to any affirmation, representation or warranty concerning the Products sold hereunder, and unless such affirmation, representation or warranty made by an agent, employee or representative is specifically included within the Contract, it will not form part of the basis of the Contract and shall not in any way be binding upon Seller or the Manufacturing and Selling Companies or enforceable by Buyer. Seller’s warranties hereunder are extended to and shall be for the sole and exclusive benefit of the first end user of the Products. The warranties are not assignable or otherwise transferable to any subsequent Buyer or user of the Products and any sale or other transfer of the Products or any such attempted assignment and transfer of any warranty shall void Seller’s warranties, and Seller shall thereafter have no further obligation or liability with regards thereto.

6. Confidentiality
6.1 Seller and Buyer (as to information disclosed, the "Disclosing Party") may each provide the other party (as to information received, the "Receiving Party") with Confidential Information in connection with this Contract. "Confidential Information" means (a) information that is designated in writing as "confidential" or "proprietary" by Disclosing Party at the time of written disclosure, and (b) information that is orally designated as "confidential" or "proprietary" by Disclosing Party at the time of oral or visual disclosure and is confirmed to be "confidential" or "proprietary" in writing within twenty (20) days after the oral or visual disclosure. In addition, prices for Products and Services shall be considered Seller's Confidential Information.

6.2 Receiving Party agrees: (i) to use the Confidential Information only in connection with the Contract and use of Products and Services, (ii) to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party or CFR. Notwithstanding these restrictions, (a) Seller may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Contract, (b) a Receiving Party may disclose Confidential Information to its auditors, (c) Buyer may disclose Confidential Information to lenders as necessary for Buyer to secure or retain financing needed to perform its obligations under the Contract, and (d) a Receiving Party may disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non-disclosure commitment from any such subcontractors, auditors, lenders or other permitted third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible and liable for any unauthorized use or disclosure of the Confidential Information. Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Contract entitles Receiving Party to retain an item of Confidential Information. Seller may also retain one (1) archive copy of Buyer's Confidential Information.

6.3 The obligations under this Article 6 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party's knowledge, subject to a confidentiality obligation to Disclosing Party, (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information.

6.4 Each Disclosing Party warrants that it has the right to disclose the information that it discloses. Neither Buyer nor Seller shall make any public announcement about the Contract without prior written approval of the other party. As to any individual item of Confidential Information, the restrictions under this Article 6 shall expire five (5) years after the date of disclosure. Article 6 does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.

7. Intellectual Property
7.1 Seller shall defend and indemnify Buyer against any claim by a nonaffiliated third party (a "Claim") alleging that Products or Services furnished under this Contract in and of themselves when used as intended by Seller and CFR, infringe a patent in effect in the U.S., an EU member state or the country of the Site (provided there is a corresponding patent issued by the U.S. or an EU member state), or any copyright or trademark registered in the country of the Site, provided that Buyer (a) promptly notifies Seller in writing of the Claim, (b) makes no admission of liability and does not take any position adverse to Seller, (c) gives Seller sole authority to control the defense and settlement of the Claim, and (d) provides Seller with full disclosure and reasonable assistance as required to defend the Claim.

7.2 Section 7.1 shall not apply and Seller shall have no obligation or liability with respect to any Claim based upon (a) Products or Services that have been modified, or revised, (b) the combination of any Products or Services with other products or services when such combination is a basis of the alleged infringement, (c) failure of Buyer to implement any update provided by Seller that would have prevented the Claim, (d) unauthorized use of Products or Services, (e) Products or Services made or performed to Buyer's or its customers’ specifications, (f) Products that have not been used as intended by Seller; or (g) in the practice of any process. If a suit is brought against Seller, CFR and/or any of their respective Affiliates based upon any exception identified in 7.2, Distributor shall defend, and indemnify Seller, CFR and their respective Affiliates from and against any and all claims, losses or damages arising therefrom.

7.3 Should any Product or Service, or any portion thereof, become the subject of a Claim, Seller may at its option (a) procure for Buyer the right to continue using the Product or Service, or applicable portion thereof, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b), take back infringing Products or Services and refund the price received by Seller attributable to the infringing Products or Services less wear and tear.

7.4 Article 7 states Seller's exclusive liability for intellectual property infringement by Products and Services.

7.5 Each party shall retain ownership of all Confidential Information and intellectual property it had prior to the Contract. All new intellectual property conceived or created by Seller or Buyer in the performance of this Contract, whether alone or with any contribution from Buyer, shall be owned exclusively by CFR Buyer agrees to deliver assignment documentation as necessary to achieve that result.

8. Indemnity
Buyer shall indemnify and hold Seller, CFR and their respective parents and affiliated companies, and their respective employees and agents harmless from and against all third party claims, damages and expenses (including attorneys’ fees) under any theory including tort, product liability, negligence, (ordinary or gross), warranty, contract, statute, or otherwise arising out of the use, operation, maintenance, repair, storage, sale, processing or other disposition of the Products and/or Services, if the action or inaction of the Buyer or its employees, representatives, customers, or agents, including a breach of the Distributor Agreement, or if the Buyer’s or its customers’ specifications, was a cause of the injuries or damages giving rise to the claims against the Seller, CFR and/or their respective affiliates. Seller (as an "Indemnifying Party") shall indemnify Buyer (as an "Indemnified Party") from and against claims brought by a third party, on account of personal injury or damage to the third party's tangible property, to the extent caused by a Product or Service which does not comply with the Warranty that arises during the Warranty Period. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Seller, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of Seller's indemnity obligation, no part of the Products or Site is considered third party property.

9. Insurance
During the term of the Contract, Buyer shall maintain for its and Seller’s and CFR’s protection the following insurance coverages: i) Worker's Compensation, Employer's Liability and other statutory insurance required by law with respect to work related injuries or disease of employees of Seller in such form(s) and amounts) as required by applicable laws; (ii) Automobile Liability insurance with a combined single limit of $1,000,000.00; and (iii) Commercial General Liability or Public Liability insurance for bodily injury and property damage with a combined single limit of $2,000,000.00. Buyer shall have Seller and CFR named an additional insured under such policies of insurance. If required in the Contract, Buyer shall provide a certificate of insurance reflecting such coverages.

10. Excusable Events
Seller shall not be liable or considered in breach of its obligations under this Contract to the extent that Seller's performance is delayed or prevented, directly or indirectly, by any cause beyond its reasonable control, or by armed conflict, acts or threats of terrorism, epidemics, strikes or other labor disturbances, or acts or omissions of any governmental authority or of the Buyer or Buyer's contractors or suppliers. If an excusable event occurs, the schedule for Seller's performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. If acts or omissions of the Buyer or its contractors or suppliers cause the delay, Seller shall also be entitled to an equitable price adjustment.

11. Termination and Suspension
11.1 Buyer may terminate the Contract (or the portion affected) for cause if Seller (i) becomes Insolvent/Bankrupt, or (ii) commits a material breach of the Contract which does not otherwise have a specified contractual remedy, provided that: (a) Buyer shall first provide Seller detailed written notice of the breach and of Buyer's intention to terminate the Contract, and (b) Seller shall have failed, within thirty (30) days after receipt of the notice, to commence and diligently pursue cure of the breach.

11.2 If Buyer terminates the Contract pursuant to Section 11.1, (i) Seller shall reimburse Buyer the difference between that portion of the Contract Price allocable to the ordered Products and Services not yet delivered by Seller and the actual amounts reasonably incurred by Buyer to complete that scope, and (ii) Buyer shall pay to Seller (a) the portion of the Contract Price allocable to Products and Services completed, (b) lease fees incurred, and (c) amounts for Services performed before the effective date of termination. The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at Seller's then-current standard time and material rates. The remedies provided for in this Section 11.2 shall be Buyer’s exclusive remedy in the event of a termination pursuant to Section 11.1.

11.3 Seller may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if Buyer (i) becomes Insolvent/Bankrupt, or (ii) materially breaches the Contract, including, but not limited to, failure or delay in Buyer providing Payment Security, making any payment when due, or fulfilling any payment conditions.

11.4 If the Contract (or any portion thereof) is terminated for any reason, Buyer shall immediately pay Seller for all orders for Products and Services performed before the effective date of termination, plus expenses reasonably incurred by Seller in connection with the termination. The amount due for Services shall be determined in accordance with the milestone schedule (for completed milestones) at rates set forth in the Contract (for work toward milestones not yet achieved and where there is no milestone schedule), is applicable or, where there are no milestones and/or rates in the Contract, at Seller's then-current standard time and material rates. The foregoing remedy shall be in addition to any other remedy available to Seller under the Contract or under applicable law.

11.5 Either Buyer or Seller may terminate the Contract (or the portion affected) upon twenty (20) days advance written notice if there is an excusable event (as described in Article 10) lasting longer than one hundred and twenty (120) days. In such case, Buyer shall pay to Seller amounts payable under Section 11.4, excluding the cancellation charge for uncompleted Products.

11.6 Buyer shall pay all reasonable expenses incurred by Seller in connection with a suspension, including, but not limited to, expenses for repossession, fee collection, demobilization/remobilization, and costs of storage during suspension. The schedule for Seller's obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.

12. Compliance with Laws, Codes and Standards
12.1 Seller shall comply with laws applicable to the manufacture of Products and its performance of Services. Buyer shall comply with all applicable laws including those related to the application, sale, marketing, operation, use and disposal of the Products and Services.

12.2 Seller's obligations are conditioned upon Buyer's compliance with all U.S. and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by Buyer and specified as the country of ultimate destination on Seller's invoice.

12.3 Notwithstanding any other provision, Buyer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import licenses, environmental impact assessments, and foreign exchange authorizations, required for the lawful performance of Services at the Site or fulfillment of Buyer's obligations, except that Seller shall obtain any license or registration necessary for Seller to generally conduct business and visas or work permits, if any, necessary for Seller's personnel. Buyer shall provide reasonable assistance to Seller in obtaining such visas and work permits.

13. Environmental, Health and Safety Matters
13.1 Buyer shall maintain safe working conditions at the Site, including, without limitation, implementing appropriate procedures regarding Hazardous Materials, confined space entry, and energization and de-energization of power systems (electrical, mechanical and hydraulic) using safe and effective lock-out/tog-out ("LOTO") procedures including physical LOTO or a mutually agreed upon alternative method.

13.2 Buyer shall timely advice Seller in writing of all applicable Site-specific health, safety, security and environmental requirements and procedures. Without limiting Buyer's responsibilities under Article 13, Seller has the right but not the obligation to, from time to time, review and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the Site.

13.3 If, in Seller's reasonable opinion, the health, safety, or security of personnel or the Site is, or is opt to be, imperiled by security risks, terrorist acts or threats, the presence of or threat of exposure to Hazardous Materials, or unsafe working conditions, Seller may, in addition to other rights or remedies available to it, evacuate some or all of its personnel from Site, suspend performance of all or any part of the Contract, and/or remotely perform or supervise work. Any such occurrence shall be considered an excusable event. Buyer shall reasonably assist in any such evacuation.

13.4 Operation of Buyer's equipment is the responsibility of Buyer. Buyer shall not require or permit Seller's personnel to operate Buyer's equipment at Site.

13.5 Buyer will make its Site medical facilities and resources available to Seller personnel who need medical attention.

13.6 Seller has no responsibility or liability for the pre-existing conditions of Buyer's equipment or the Site. Prior to Seller starting any work at Site, Buyer will provide documentation that identifies the presence and condition of any Hazardous Materials existing in or about Buyer's equipment or the Site that Seller may encounter while performing under this Contract. Buyer shall disclose to Seller industrial hygiene and environmental monitoring data regarding conditions that may affect Seller's work or personnel at the Site. Buyer shall keep Seller informed of changes in any such conditions.

13.7 Seller shall notify Buyer if Seller becomes aware of (i) conditions at the Site differing materially from those disclosed by Buyer, or (ii) previously unknown physical conditions at Site differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. If any such conditions cause an increase in Seller's cost of, or the time required for, performance of any part of the work under the Contract, an equitable adjustment in price and schedule shall be made.

13.8 If Seller encounters Hazardous Materials in Buyer's equipment or at the Site that require special handling or disposal, Seller is not obligated to continue work affected by the hazardous conditions. In such an event, Buyer shall eliminate the hazardous conditions in accordance with applicable laws and regulations so that Seller's work under the Contract may safely proceed, and Seller shall be entitled to an equitable adjustment of the price and schedule to compensate for any increase in Seller's cost of, or time required for, performance of any part of the work. Buyer shall properly store, transport and dispose of all Hazardous Materials introduced, produced or generated in the course of Seller's work at the Site.

13.9 Buyer shall indemnify Seller for any and all claims, damages, losses, and expenses arising out of or relating to any Hazardous Materials which are or were (i) present in or about Buyer's equipment or the Site prior to the commencement of Seller's work, (ii) improperly handled or disposed of by Buyer or Buyer's employees, agents, contractors or subcontractors, or (iii) brought, generated, produced or released on Site by parties other than Seller.

14. Changes
14.1 Each party may at any time propose changes in the schedule or scope of Products or Services. Seller is not obligated to proceed with any change until both parties agree upon such change in writing. The written change documentation will describe the changes in scope and schedule, and the resulting changes in price and other provisions, as agreed.

14.2 The scope, Contract Price, schedule, and other provisions will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change, after Seller's proposal date, in Buyer's Site-specific requirements or procedures, or in industry specifications, codes, standards, applicable laws or regulations. However, no adjustment will be made on account of a general change in Seller's manufacturing or repair facilities resulting from a change in laws or regulations applicable to such facilities. Unless otherwise agreed by the parties, pricing for additional work arising from such changes shall be at Seller's time and material rates.

14.3 It shall be acceptable and not considered a change if Seller delivers a Product that bears a different, superseding or new part or version number compared to the part or version number listed in the Contract.

15. Limitations of Liability
15.1 In no event shall Seller or CFR be liable for special, incidental, indirect, punitive, treble, exemplary or consequential damages whether for breach of the Contract, breach of warranty, tort or otherwise. The total liability of Seller and CFR for all claims arising under the Warranty or otherwise related to a defective Product or Service shall not exceed the remedy provided for in Section 5 and the Express Limited Warranty. The total liability of Seller and CFR for any and all other claims of any kind arising from or related to the formation, performance or breach of this Contract, or any Products or Services, shall not exceed thirty percent (30%) of the Contract Price of the subject Services and/or Product delivered in the six (6) months immediately preceding the event giving rise to the claim. Any liability under the Contract including the Distributor Agreement shall terminate two (2) years after the delivery or non-delivery of the Services or Product thereof or other event giving rise to the claim. Any release, limitation of liability or other exculpatory language contained in the Contract (including the Distributor Agreement to which these Terms and Conditions are attached and incorporated) shall apply regardless of the fault, negligence, or strict liability of the Seller.

15.2 NOTWITHSTANDING WHAT MAY BE OTHERWISE PROVIDED IN THE CONTRACT, SELLER AND CFR SHALL NOT BE LIABLE FOR BUYER’S LOSS OF PROFIT OR REVENUES, LOSS OF USE OF EQUIPMENT OR SYSTEMS, INTERRUPTION OF BUSINESS, COST OF REPLACEMENT POWER, COST OF CAPITAL, DOWNTIME COSTS, INCREASED OPERATING COSTS, ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, TREBLE, EXEMPLARY OR PUNITIVE DAMAGES, OR CLAIMS OF BUYER'S CUSΤΟΜΕRS FΟR ΑΝΥ ΟF ΤΗΕ FΟRΕGΟΙΝG ΤΥΡΕS ΟF DΑΜΑGΕS.

15.3 All Seller and CFR’s liability under the Contract shall end upon expiration of the applicable Warranty Period, provided that Buyer may continue to enforce a claim for which it has given notice prior to that date by commencing an action or arbitration, as applicable under this Contract, before expiration of any statute of limitations or other legal time limitation but in no event later than one (1) year after expiration of such Warranty Period.

15.4 Seller and CFR shall not be liable for advice or assistance concerning any Products, systems or work which is not required pursuant to this Contract, the furnishing of such advice or assistance shall be deemed gratuitous and shall not subject Seller or CFR to any liability whether in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise.

15.5 If Buyer is supplying Products or Services to a third party, or using Products or Services at a facility owned by a third party, Buyer shall either (i) indemnify and defend Seller and CFR from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth in this Article 15, or (ii) require that the third party agree, for the benefit of and enforceable by Seller and CFR, to be bound by all the limitations included in this Article 15.

15.6 For purposes of this Article 15, the term "Seller" means Seller, its affiliates, subcontractors and suppliers of any tier, and their respective employees. The limitations in this Article 15 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict Seller's liability.

16. Governing Law and Dispute Resolution
16.1 This Contract shall be governed by and construed in accordance with the laws of the State of New York, U.S.A. without reference to conflicts of laws principals, and shall not be governed by the provisions of the 1980 U.N. Convention on Contract for the International Sale of Goods, which is hereby expressly excluded and disclaimed.

16.2 All disputes arising in connection with this Contract, including any question regarding its existence or validity, shall be resolved in accordance with this Article 16. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to a meeting of appropriate higher management, to be held within twenty (20) business days after the giving of written notice. If the dispute is not resolved within thirty (30) business days after the giving of written notice, or such later date as may be mutually agreed, either party may commence arbitration administered by the American Arbitration Association (“AAA”) in accordance with its commercial rules except as modified herein. The number of arbitrators shall be one (1), selected in accordance with the AAA rules, unless the amount in dispute exceeds the equivalent of U.S. $5,000,000.00 in which event it shall be three (3). When three (3) arbitrators are involved, each party shall appoint one (1) arbitrator, and those two (2) shall appoint the third within thirty (30) days, who shall be the Chairman. The seat, or legal place, of arbitration, shall be the County of Waukesha, State of Wisconsin. Any arbitration shall be conducted in the English language. In reaching their decision, the arbitrator(s) shall give full force and effect to the intent of the parties as expressed in the Contract, and if a solution is not found in the Contract, shall apply the governing law of the Contract. The decision of the arbitrator(s) shall be final and binding upon both parties, and neither party shall seek recourse to a law court or other authority to appeal for revisions of the decision.

16.3 Notwithstanding the foregoing, each party shall have the right at any time, at its option and where legally available, to immediately commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Contract, to seek a restraining order, injunction, or similar order to enforce the confidentiality provisions set forth in Article 6 and/or the nuclear use restrictions set forth in Section 19.1, or to seek interim or conservatory measures. Monetary damages shall only be available in accordance with Section 16.2.

17. Inspection and Factory Tests
CFR will apply its normal quality control procedures in manufacturing Products. Seller shall attempt to accommodate requests by Buyer to witness CFR's factory tests of Products, subject to appropriate access restrictions, if such witnessing can be arranged without delaying the work.

18. Services
If Seller provides any Services, parts, Software, field services or commissioning services to Buyer, the Service Addendum shall apply. If there is any conflict between these "Terms and Conditions for the Sale of Products and Services” (Form 20151) and the terms of any addendum incorporated pursuant to this Article 18, the terms of the addendum shall take precedence with respect to the applicable scope.

19. General Clauses
19.1 Products and Services sold by Seller are not intended for use in connection with any nuclear facility or activity, and Buyer warrants that it shall not use or permit others to use Products or Services for such purposes, without the advance written consent of Seller. If, in breach of this, any such use occurs, Seller (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, and, in addition to any other rights of Seller, Buyer shall indemnify and hold Seller (and its parent, affiliates, suppliers and subcontractor(s)) harmless against all such liability. Consent of Seller to any such use, if any, will be conditioned upon additional terms and conditions that Seller determines to be acceptable for protection against nuclear liability.

19.2 Seller may assign or novate its rights and obligations under the Contract, in whole or in part, to any of its affiliates or successor legal entities and may assign any of its accounts receivable under this Contract to any party without Buyer's consent. Buyer agrees to execute any documents that may be necessary to complete Seller's assignment or novation. Seller may subcontract portions of the work, so long as Seller remains responsible for it. The delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without Seller's prior written consent (which consent shall not be unreasonably withheld) shall be void.

19.3 Buyer shall notify Seller immediately upon any change in ownership of more than fifty percent (50%) of Buyer's voting rights or of any controlling interest in Buyer. If Buyer fails to do so or Seller objects to the change, Seller may (a) terminate the Contract, (b) require Buyer to provide adequate assurance of performance (including but not limited to payment), and/or (c) put in place special controls regarding Seller's Confidential Information.

19.4 If any Contract provision is found to be void or unenforceable, the remainder of the Contract shall not be affected. The parties will endeavor to replace any such void or unenforceable provision with a new provision that achieves substantially the same practical and economic effect and is valid and enforceable.

19.5 All provisions or obligations contained in this Agreement which by their nature or effect are required or intended to be observed or performed after expiration, cancellation or termination of this Agreement shall survive and remain binding upon and for the benefit of the parties including without limitation the following Articles: 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 18, 19 and 20.

19.6 The Contract represents the entire agreement between the parties. No oral or written representation or warranty not contained in this Contract shall be binding on either party. Buyer's and Seller's rights, remedies and obligations arising from or related to Products and Services sold under this Contract are limited to the rights, remedies and obligations stated in this Contract. No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing.

19.7 Except as provided in Article 15 (Limitations of Liability) and in Section 19.1 (no nuclear use), this Contract is only for the benefit of the parties and CFR, and no other third party shall have a right to enforce any provision of this Contract.

19.8 This Contract may be signed in multiple counterparts that together shall constitute one agreement.

20. U.S. Government Contracts
20.1 This Article 20 applies only if the Contract is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government.

20.2 Buyer agrees that all Products and Services provided by Seller meet the definition of "commercial-off-the-shelf" ("COTS") or "commercial item" as those terms are defined in U.S. Federal Acquisition Regulation ("FAR”) 2.101. To the extent the U.S.’s Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Contract, the country of origin of Products is unknown unless otherwise specifically stated by Seller in this Contract. Buyer agrees any Services offered by Seller are exempt from the U.S.’s Service Contract Act of 1965 (FAR 52.222-41). Buyer represents and agrees that this Contract is not funded in whole or in port by the U.S.’s American Recovery Reinvestment Act funds unless otherwise specifically stated in the Contract. The version of any applicable FAR clause listed in this Article 20 shall be the one in effect on the Effective Date of this Contract.

20.3 If Buyer is an agency of the U.S. Government, then as permitted by FAR 12.302, Buyer agrees that all paragraphs of FAR 52.212-4 (except those listed in 12302(b) are replaced with these Terms and Conditions. Buyer further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price.

20.4 If Buyer is procuring the Products or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Buyer agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price