Air Liquide General Terms and Conditions
The items described in the purchase order (referred to separately and collectively as the “Equipment”) are hereby offered for sale at prices to be established by Air Liquide Advanced Technologies U.S. LLC (“Seller”). This offer and its acceptance by any “Buyer” shall be governed by all of the terms and conditions stated herein. Buyer’s order for any Equipment described in its document, when communicated to Seller, verbally or in writing, shall constitute acceptance of this offer. All descriptions, quotations, proposals, offers, acknowledgements, acceptances and sales of Seller’s products are subject to and shall be governed exclusively by the terms and conditions stated herein. Buyer’s acceptance of any offer to sell is limited to the terms and conditions stated herein. Any terms or conditions proposed by Buyer in any Buyer document that are in addition to, or inconsistent with, the terms or conditions stated herein are hereby objected to. No such additional, different or inconsistent terms or conditions shall become part of the contract between Buyer and Seller unless expressly accepted in writing in advance by Seller. Seller’s acceptance of any offer to purchase by Buyer is expressly conditional upon Buyer’s assent to all the terms and conditions stated herein, including any terms or conditions stated herein that are in addition to, or inconsistent with, those contained in Buyer’s offer. Acceptance of Seller’s Equipment shall in all events constitute such assent.
All payments to Seller shall be made at the locations indicated on Seller's invoice. All invoices shall be payable net cash by Buyer within thirty (30) days of the date of the invoice, unless otherwise expressly stated in Seller’s applicable commercial proposal (the “Commercial Proposal”). Buyer shall pay all taxes, except Seller’s income tax. Seller may collect from Buyer on any delinquent balance a charge at a rate of the lesser of: (1) 1.5% per month or (2) the maximum rate permitted by law. Payments 60 days or more past due may result in Buyer being placed on credit hold. The Buyer will be released from credit hold only when all outstanding payments are satisfied.
2. Delivery and Installation
Unless otherwise expressly stated in the Commercial Proposal, attached hereto as Exhibit A, the Equipment shall be delivered FCA Seller’s facility, (INCOTERMS 2010) and Buyer shall be deemed to have accepted the Equipment on the day of such delivery. Transport shall be arranged by Buyer at Buyer's expense, including but not limited to obtaining transportation and other applicable permits, licenses and authorizations. If the Equipment is of the kind that requires installation, Buyer shall be responsible, at Buyer’s expense, for site preparation (if any) and installation of the Equipment (including securing all applicable permits) unless otherwise agreed in writing by Seller, in Exhibit A or otherwise.
3. Use, Maintenance and Alterations
Buyer shall not alter or replace any part of the Equipment without the prior written authorization of Seller. In the event that Buyer (1) makes any alteration or replacement of any part with components that are not identical to the original components, without Seller's prior authorization in writing, or (2) uses or operates the Equipment other than in the manner specified in the applicable Seller’s operating manual or instructions (the “Operating Manual”), any warranty with respect to the Equipment shall terminate. The scope of work as defined in the attached Commercial Proposal shall not be changed by Buyer during project execution except by way of a mutually agreed change order that makes appropriate adjustments to the delivery schedule and/or price. If either Party proposes a change order, the Party requesting such order shall send notice to the other Party the proposed change order, and the Parties agree to discuss the change order terms within 10 business days after such notice. If the Parties cannot agree on the scope or contract adjustments for a change order, then the Parties shall conduct mediation in accord with section 9.5 herein to resolve the change order issue. Changes in applicable laws or regulations during the performance of the Agreement shall entitle Seller to an appropriate change order to ensure compliance.
4. Risk of Loss and Insurance
Risk of loss and title to the Equipment or any part thereof shall pass to Buyer upon delivery in accord with Section 2 herein. Prior to receipt by Seller of full payment of the price, Buyer, at its own expense, and for the benefit of Seller, shall insure the Equipment from the date of delivery to Buyer against risk of loss or damage from any 2 June 2018 cause, including but not limited to fire and theft, for not less than the price. Seller shall be specified as a loss payee with respect for such insurance coverage and Buyer shall furnish to Seller a certificate evidencing such insurance coverage.
IF THERE IS ANY INJURY, INCLUDING DEATH, LOSS OR DAMAGE TO THE PERSON OR PROPERTY OF ANY THIRD PARTY (INCLUDING EMPLOYEES OF ANY THIRD PARTY) RESULTING DIRECTLY FROM: (1) SELLER’S PRESENCE AT INSTALLATION LOCATION, AND (2) THE NEGLIGENCE OF SELLER, THEN SELLER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE BUYER.
EXCEPT AS OTHERWISE SET FORTH IN THE PRECEDING PARAGRAPH, BUYER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER AND ITS EMPLOYEES AND AFFILIATES FROM AND AGAINST ANY AND ALL CLAIMS MADE BY ANY PARTY (INCLUDING, BUT NOT LIMITED TO, ALL COSTS, EXPENSES, SUITS, DAMAGES, LIABILITIES, LOSSES, FINES, PENALTIES AND REASONABLE ATTORNEY FEES AND COURT COSTS) THAT DIRECTLY OR INDIRECTLY ARISE IN CONNECTION WITH:
(A) THE LOSS OR DAMAGE TO THE PERSON OR PROPERTY OF ANY PARTY (INCLUDING EMPLOYEES OR AGENTS OF ANY PARTY), OR ANY THIRD PARTY, RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT,
(B) THE EQUIPMENT TRANSFERRED TO BUYER PURSUANT TO THIS AGREEMENT,
(C) USE OF THE EQUIPMENT,
(D) ANY ALTERATION OR ADDITION TO THE EQUIPMENT OR REPLACEMENT OF PARTS WITHOUT PRIOR WRITTEN AUTHORIZATION OF SELLER, AND
(E) BREACH OF THE REPRESENTATION PROVIDED HEREIN IN SECTION 9.6. THIS INDEMNIFICATION OF SELLER SHALL APPLY REGARDLESS OF THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILFULL MISCONDUCT OF SELLER, TO THE FULLEST EXTENT PERMITTED BY LAW. THE INDEMNIFICATION OBLIGATIONS OF THIS AGREEMENT SHALL SURVIVE THE EXPIRATION, TERMINATION, OR CANCELLATION OF THIS AGREEMENT.
6. Warranties, Hazards and Limitations of Liability
Subject to any and all limitations contained in this Agreement (including but not limited to this Section 6), Seller provides a Mechanical Warranty (including Services) and Performance Warranty, collectively “Warranty” set forth in this Agreement.
6.1 Limited Mechanical Warranty.
Seller warrants the Goods sold by Seller to Buyer against defects in material and workmanship for a period of twelve (12) months from system startup, or eighteen (18) months from shipment, whichever occurs first. The limited warranty set forth herein does not extend to repair or replacements resulting from normal wear and tear, including consumables such as filter elements, adsorbents, fuses and depleting sensor elements. All removal, installation and shipping costs for Equipment needing warranty work will be borne by the Buyer. Equipment provided by Seller as a repair or replacement during the applicable warranty period and not as a general consumable shall be warranted against defects in material and workmanship for the remainder of the applicable warranty period or (90) days from the date of shipment, whichever is longer.
Seller acknowledges that Buyer may assign this Agreement, including the Warranty, to another party (“New Owner”) through an assignment document in form and substance acceptable to Seller in advance, at which point any warranty claims shall be brought only by New Owner, and Seller shall have no further liability to Buyer. Upon such assignment, New Owner shall be deemed to be the “Buyer” for all purposes hereunder and Seller’s obligations and liabilities hereunder shall be to New Owner only, and New Owner shall be bound by all of the terms and conditions herein.
Seller is not liable for any claim made after the expiration of the applicable Warranty period. All warranties provided by Seller are void if the Equipment is operated improperly, including but not limited to:
(i) pollution of the site with contaminants;
(ii) improper maintenance or improper storage;
(iii) operation of the Equipment above specified feed gas temperature limits;
(iv) operating the Equipment such that the membrane inlet pressure is above maximum design pressure;
(v) failure to follow system installation guidelines;
(vi) improper handling of the Equipment;
(vii) attempts to modify the Equipment (or any part thereof);
(viii) failure to upgrade the Equipment (or any part thereof) within six months following Seller's notification of a problem/corrective action; or
(ix) failure to operate the Equipment according to instructions in the Operating Manual.
Further, Buyer must provide a complete written description of the problems and provide copies of operation and maintenance documentation.
SELLER MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Buyer acknowledges that there are hazards associated with the use of the Equipment and the gases produced from the Equipment. Buyer shall be responsible for training its employees, customers and all others exposed to such hazards in the proper uses of the Equipment and for taking all appropriate actions to warn and protect such individuals. Buyer acknowledges its understanding that the gases produced by the Equipment are classified by the U.S. Occupational Safety and Health Administration (“OSHA”) as hazardous chemicals and that OSHA regulations require Buyer to develop and implement a written chemical hazard communications program for its employees regarding all hazardous chemicals. Buyer acknowledges that Supplier has supplied (or will supply) Buyer with certain Material Safety Data Sheets (“MSDSs”) relating to the gases produced by the Equipment, and that more MSDSs are available from Seller on request. Buyer understands that the Equipment must not be used without consulting the MSDSs, and Buyer will ensure that all employees, customers and others who may be exposed to the gases produced by the Equipment reference the MSDSs.
6.3 Damage Limitations.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL A PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND INCLUDING, WITHOUT LIMITATION, LOSS OF USE, LOSS OF PROFITS, OR INCREASED OPERATION OR PRODUCTION COSTS, EVEN IF FORESEEABLE AND ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
IN NO EVENT SHALL SELLER’S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS OF ANY KIND FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION ALL CLAIMS FOR WARRANTIES, EVER EXCEED THIRTY-FIVE PERCENT OF THE PURCHASE PRICE ACTUALLY PAID BY BUYER TO SELLER PURSUANT TO THIS AGREEMENT.
BUYER MUST NOTIFY SELLER OF ANY CLAIM WITHIN 30 DAYS OF THE EVENT GIVING RISE TO SUCH CLAIM OR SUCH CLAIM IS WAIVED. THE LIMITATIONS CONTAINED IN THIS SUBSECTION 6.3 SHALL APPLY REGARDLESS OF WHETHER THE CLAIM FOR DAMAGES IS BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE.
ANY AGREED AMOUNT OF LIQUIDATED DAMAGES BY SELLER TO BUYER PURSUANT TO AGREED TERMS THAT MAY OR MAY NOT BE SET FORTH IN THIS AGREEMENT (INCLUDING EXHIBITS) SHALL BE CONSIDERED AS A FINAL REMEDY TO BUYER, AND BUYER SHALL HAVE NO RECOURSE BEYOND SUCH AGREED LIQUIDATED DAMAGES.
AS USED IN THIS SECTION THE TERM “BUYER” AND “SELLER” SHALL INCLUDE NOT ONLY THE PARTY TO THIS AGREEMENT BUT ALSO ALL OF ITS AFFILIATES. THE PROVISIONS GOVERNING DAMAGE LIMITATIONS AND INDEMNITY SET FORTH IN THIS AGREEMENT SHALL SURVIVE EXPIRATION, TERMINATION, OR CANCELLATION OF THIS AGREEMENT.
6.4 Compliance with laws.
Buyer shall comply with all laws, ordinances and regulations relating to the Equipment and all other aspects of Buyer’s business and operations, including any applicable licensing, permitting and registration obligations and environmental laws. Buyer agrees to comply with all applicable U.S. export control laws, rules and regulations. Without limiting the foregoing, Buyer agrees that it will not transfer any export controlled item, data or services, to include transfer to foreign persons employed by or associated with, or under contract to Buyer or Buyer’s subcontractors or suppliers, without the authority of an export license, agreement or applicable exemption or exception.
7. Proprietary Information and Confidentiality
Buyer acknowledges that technology related to the Equipment constitutes proprietary information belonging exclusively to Seller (the “Proprietary Information”). Buyer hereby covenants that it shall maintain the Proprietary Information in confidence and shall not disclose, or permit any of its employees or agents to disclose, any Proprietary Information to any person without the prior written consent of Seller, except to Buyer’s employees, officers, directors, agents or representatives who are directly involved in the purchase or use of the Equipment and who agree to be bound by the provisions of this Section 7 in the same manner as Buyer.
If Buyer resells any of the Equipment, Buyer agrees to require the purchaser of the Equipment to be contractually bound by Sections 3, 5, 6, 7 and 8 of this Agreement. Any such purchaser, however, shall not be considered a thirdparty beneficiary of this Agreement.
9. Additional Terms
Buyer must receive Seller's prior written consent to assign this Agreement. This Agreement shall be binding on, and inure to the benefit of, the parties and their respective successors and permitted assigns.
9.2 Applicable Laws.
The laws of the State of Delaware govern this Agreement, without regard to its choice of law provisions. The invalidity or unenforceability of any provision of this Agreement under any applicable laws shall not affect the validity or enforceability of any other provision of this Agreement. The state and federal courts of Delaware shall have exclusive jurisdiction for any claim or dispute relating to this Agreement or the Equipment, and the Parties hereby consent to such jurisdiction and venue.
9.3 Entire Agreement.
This Agreement, together with the attached Exhibits, constitutes the entire Agreement between the parties with respect to the subject matter. No provision of any Buyer purchase order or other Buyer document shall be construed to modify this Agreement. Any modifications of this Agreement must be in writing, signed by both parties and dated. Any terms or conditions proposed by Buyer in any Buyer document that are in addition to, or inconsistent with, the terms or conditions stated herein are hereby objected to by Seller. Such additional, different or inconsistent terms or conditions shall not become part of the contract between Buyer and Seller unless expressly accepted in writing in advance by Seller. Seller’s acceptance of any offer to purchase by Buyer is expressly conditional upon Buyer’s assent to all the terms and conditions stated herein.
While general information regarding this Agreement and the transactions contemplated herein may be exchanged by the parties electronically, the parties expressly agree not to conduct the transactions contemplated by this Agreement by electronic means, unless specified otherwise herein. All notices given in connection with this Agreement must be in writing and sent to the party’s place of business addresses indicated on the first page of this Agreement or any substitute address that the Party may provide to the other by notice hereunder. In the case of Seller, such notice shall be sent to the attention of the Air Liquide Director of Biogas Sales. Notice shall be considered to be given on the date it is sent by prepaid US mail or, if personally delivered, on the date of such delivery.
Prior to filing any legal action, except to prevent the running of any applicable statute of limitations, all claims or disputes regarding this Agreement or the Equipment shall be submitted to non-binding mediation. If the parties cannot agree to a mediator, one will be selected pursuant to American Arbitration Association rules. The mediation shall take place in Delaware.
9.6 Representations and Termination for Breach.
Buyer represents that Buyer is contractually free to enter into this Agreement and to perform hereunder and shall indemnify, defend and hold harmless Seller against all damages Seller may suffer if Buyer’s representation is not correct. Seller may suspend or terminate this Agreement as a result of Buyer’s material breach of this Agreement, and in the event of such termination, warranties otherwise provided herein shall be canceled.
9.7 Termination for Convenience.
In the event that Buyer terminates this Agreement for any reason other than a breach by Seller, Seller is entitled to recover all of Seller’s costs and commitments for work expended or items purchased by Seller in carrying out the Agreement (the “Seller Investment”), plus a fee of fourty-five percent (45%) of the Seller Investment.
10. Excuse of Performance
Except for Buyer's obligations to make payments for all amounts due hereunder, neither Party shall be liable for nonperformance or delay in performance of the terms of this Agreement when and to the extent such failure of or delay in performance is due to an event or combination thereof which is beyond the reasonable control of the Party claiming such impairment, including, for example, and without limitation, acts of God, acts of third parties, failure to maintain necessary governmental approvals or permits, rain, fires, floods, hurricanes, tornados, impacts due to weather, earthquakes, labor difficulties, bankruptcy of a Party or Seller, accidents regarding equipment, breakage of equipment that is not due to Seller’s improper maintenance, Seller’s inability to secure sufficient power, natural gas, utilities, labor or materials, inability to obtain any necessary land use agreements ("Force Majeure Event"); provided, however, that an economic downturn or low sales volume due to market conditions suffered by a Party or any of its affiliates will not be deemed to be a Force Majeure Event. The Party making such claim will notify the other Party in writing as soon as reasonably possible after the occurrence of a Force Majeure Event. Such notice will provide reasonable detail as to the nature and expected duration of such Force Majeure Event. However, the failure or delay of a Party in giving such notice shall not be deemed to invalidate or otherwise affect the duration or validity of the Force Majeure Event. Seller may suspend performance during the Force Majeure Event. If the conditions of the Force Majeure Event persist beyond three months, Seller may terminate this Agreement without further obligation. In that event, Buyer shall pay for that portion of the goods or services representing Seller’s costs and commitments for work previously expended and for items purchased by Seller on Buyer’s behalf.
11. Fees and Expenses
In addition to the provisions of Section 1-10 above, the following shall apply as well to any services, including for example, Equipment start-up, field supervision, or other services (“Services”) performed by or on behalf of Seller 6 June 2018 (such Services being set forth in the Commercial Proposal of Exhibit A):
11.1 Fees and Expenses.
Buyer agrees to pay Seller, within 30 days of receipt of Seller’s invoice, the following charges for the Services, except as modified by the Commercial Proposal (which shall take precedence): (a) (i) Seller’s per diem charge specified in the Commercial Proposal per 8-hour man-day, Monday through Friday; (ii) one and a half (1.5) times the pro-rata per diem rate for each hour in excess of 8 hours; and (iii) two (2) times the per diem rate for weekends and holidays, as the case may be, for each Seller technical advisor for each whole or part of a calendar day from the date of departure from Seller’s home office up to and including the date of return to Seller’s home office; and (b) an amount equal to Seller’s other direct expenses, such as travel, living and communication expenses, incurred in connection with such Services.
Standby Time, defined herein as time up to 8 hours per day, during which Seller’s representative, during the course of his or her assignment, is available to work but is not working because of circumstances beyond the reasonable control of Seller, including but not limited to weather conditions, but excluding his or her own sickness or injury, and shall be billed at the rates set forth herein. Daily travel time to and from lodging, as well as time for meals, will be included and billed as part of the workday. International air travel shall be at Business Class level of service. Domestic travel shall be at Coach or Economy Class level of service. The per diem charge may be subject to adjustment by Seller. The per diem charge does not include any taxes which may now or hereafter be applicable to, or be imposed upon, the Services. Buyer shall pay all such taxes, except Seller’s income tax. Buyer agrees to pay or reimburse Seller any such taxes which Seller is required to pay or collect or which are required to be withheld by Buyer.
If Buyer’s account is not paid in full by the above-referenced payment day, Seller may, at Seller’s option, exercise any one or more of the following (in addition to any other remedies available to Buyer): (a) require Buyer, as a condition of continuing to receive Services, to prepay for Services plus a specified part of the past due amounts as specified by Seller; (b) collect from Buyer on any delinquent balance a charge at the rate of one and one-half percent (1.5%) per month or, if less, the maximum rate permitted by law; (c) cease providing any or all of the Services; and/or (d) terminate this Agreement.
11.2 Nondisclosure and Restriction on Use.
Seller and Buyer shall respect the confidentiality of each other’s commercial or technical data disclosed to each other during the performance of the Services. Seller’s technical data shall only be used for the detailed design, procurement, construction, operation and maintenance of the facilities for which the Services are furnished. Materials marked “Confidential” will be maintained confidential by Buyer. Buyer will not copy any Services materials provided by or on behalf of Seller without Seller’s prior written approval.
11.3 Responsibilities of Buyer.
Buyer will at all times remain solely responsible for the facilities for which the Services are furnished. Buyer has the sole responsibility for accepting or rejecting Seller’s recommendations. Buyer will give Seller access to the facilities where the Services are to be performed by Seller and otherwise cooperate with Seller, as reasonable and appropriate, in connection with the supply of Services under this Agreement.
11.4 Services Warranty and Limitation of Liability for Services.
SELLER WARRANTS THAT THE SERVICES WILL BE PERFORMED IN A GOOD AND WORKMANLIKE MANNER. SELLER MAKES NO OTHER SERVICES WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES. SELLER’S SOLE LIABILITY AND BUYER’S SOLE REMEDY FOR ANY DAMAGES FOR SERVICES PERFORMED BY OR ON BEHALF OF SELLER OR SELLER’S FAILURE TO PERFORM SERVICES, SHALL BE LIMITED, AT SELLER’S OPTION, TO THE REFUND OF FIFTY PERCENT (50%) OF THE PURCHASE PRICE OF THE SERVICES IN QUESTION OR REPERFORMANCE OF THE SERVICES IN QUESTION. BUYER MUST NOTIFY SELLER OF ANY SERVICES CLAIM WITHIN 30 DAYS OF THE EVENT GIVING RISE TO SUCH CLAIM OR SUCH CLAIM IS WAIVED.