Dear Customer,
Thank you for your inquiry. Please find enclosed our corresponding offer.
If you have any further questions, please do not hesitate to contact us.
Quotation no.: 136213173
Responsible: MATT LUCHETTA
Best regards
Draeger Inc.
This document has been electronically generated and is valid without a signature.
Customer
SOUTH SAN FRANCISCO FIRE DEPARTMENT
480 N CANAL ST
SOUTH SAN FRANCISCO CA 94080-4603
Draeger Inc. Remit to: Remit to: Remit US Wire Transfers to:
Our Tax ID: 23-1699096 LOCKBOX (Standard USPS) LOCKBOX (Overnight) Account Name: Draeger Inc. 3135 Quarry Road; Telford, PA 18969 Draeger, Inc. FIS Lockbox Processing Account Number: 00-494-936 An Equal Opportunity Employer M / F / V / H PO Box 13369 Lockbox #13369 Transit Routing: 021001033 Telephone 800-437-2437 Newark, New Jersey 100 Grove Road SWIFT: BKTRUS33 http://www.draeger.com 07101-3362 Suite E Deutsche Bank Trust Company Americas West Deptford, NJ 08066 60 Wall Street 25th Fl, New York, NY 10005 Quotation
Customer no. Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer 91172728
SOUTH SAN FRANCISCO FIRE DEPAR
480 N CANAL ST
SOUTH SAN FRANCISCO CA 94080-4
Your request
RFQ REVISION DATE: 09/25/2023
Ship-To party 91172728
SOUTH SAN FRANCISCO FIRE DEPT
480 N CANAL ST
SOUTH SAN FRANCISCO CA 94080
Telephone: 626-614-7975
E-mail: [email protected]
0010 1 EA 1903015 GAS DETECTION REPLACEMENT &
SERVICE 49,620.99 49,620.99
- Includes site install and service by
Dräger personnel.
- 12-month limited parts warranty.
- Fully replace Gas Detection for Burn
Tower.
- Nine (9) Draeger Polytron Gas
Detector replacements, includes
calibration and connection to existing
control system
- Calibration kit with zero and span gas
included for regular monthly calibration by
customer
- Reuse wiring and conduit between gas
detectors and control panels.
- Reuse gas detector stainless shrouds
and panels.
- Perform overall system service to clean,
test and inspect all gas and electrical
components. Perform detailed technical
inspection to confirm scope of system
upgrade is correct. Pricing information for
subsequent work activities may be
revised following this visit.
Note: This work must be performed to
continue with items 20 and/or 30.
0020 1 EA 1903015 REPLACE EXTERIOR ESTOP 3,955.45 3,955.45 - Material supply only. See line 0070 for
lump sum cost of install and
commissioning by Dräger personnel.
- 12-month limited parts warranty.
- Exterior Estop identified as requiring
replacement.
- 7x total E-stops located at the Training
Tower. 6x interior and 1x exterior.
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no. Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
PLEASE SUBMIT / REFER TO THIS
QUOTATION WHEN PLACING YOUR
ORDER
- Interior E-stop condition is okay and is
not included in replacement
- If additional E-stops are desired to be
replaced this item may be incremented
for multiple units.
- Reuse wiring and conduit between
E-stop and control panels.
- Renew or replace any conduit fittings
showing signs of corrosion
Fire Props Control System Upgr
Full Building System Service. Upgrade of
existing fire training systems to include
the following features:
- Item 10 must be completed prior to or in
conjunction with this work
- Interior Burn Building: Pendant upgrade,
replace body/switches, upgrade
communications to Wifi protocol
- Interior Burn Building: Control Panel
upgrade, new touch-screens, upgrade
control screen program. WiFi enable for
WLAN, upgrade to tablet / iPad control.
(iPad not included)
- Interior Burn Building: Replace building
industrial panels with stainless steel
NEMA panels, reuse gas valve trains and
controls. Reuse building services /
conduit / pipe where possible. Reinstall
conduit / piping where necessary.
NOTE: selection of this option will require
several tear-out and reinstallation trips,
and access to the burn building for ~10
weeks (burn building will be out of
commission for 10 weeks).
0040 1 EA 1903015 COVER HALLWAY GAS DETECTOR 711.00 711.00 Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no. Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
0030 1 EA 1903015 FIRE PROPS CONTROL SYSTEM
UPGRADE 238,143.73 238,143.73
- Material supply only. See line 0070 for
lump sum cost of install and
commissioning by Dräger personnel.
- 12-month limited parts warranty.
- Gas Detector Panel on Level 2 identified
as corroded.
- 9x total Gas Detectors located at the
Training Tower. 6x in burn rooms and 2x
in hallways.
- Burn Room Gas Detectors have
additional Stainless Steel Cover Panel.
These are in good condition and not
included in replacement
- Similar Stainless Steel Cover Panel to
be installed on hallway gas detector to
prevent further corrosion
- Reuse wiring and conduit between Gas
Detector and control panels.
- Renew or replace any conduit fittings
showing signs of corrosion
Note: Gas Detector replacement was
previously advised based on obsolete
model of Gas Detector in use. This Cover
Panel does not address this.
0050 1 EA 1903015 GAS DETECTOR COVER PANEL 711.00 711.00 - Material supply only. See line 0070 for
lump sum cost of install and
commissioning by Dräger personnel.
- 12-month limited parts warranty.
- Gas Detector Panel on Level 4 identified
as corroded.
- 9x total Gas Detectors located at the
Training Tower. 6x in burn rooms and 2x
in hallways.
- Burn Room Gas Detectors have
additional Stainless Steel Cover Panel.
These are in good condition and not
included in replacement
- Similar Stainless Steel Cover Panel to
be installed on hallway gas detector to
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no. Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
prevent further corrosion
- Reuse wiring and conduit between Gas
Detector and control panels.
- Renew or replace any conduit fittings
showing signs of corrosion
Note: Gas Detector replacement was
previously advised based on obsolete
model of Gas Detector in use. This Cover
Panel does not address this.
0060 1 EA 1903015 REPLACE EXHAUST FAN 40,916.82 40,916.82 - Material supply only. See line 0070 for
lump sum cost of install and
commissioning by Dräger personnel.
- 12-month limited parts warranty.
- Exterior Exhaust Fans identified as
requiring replacement.
- 3x total Exhaust Fans located at the
Training Tower
- If some Fans are not desired to be
replaced this item may be reduced for 1
or 2 units.
- Reuse wiring and conduit between
Exhaust Fan and control panels.
- Replace Exhaust Fan disconnect, speed
sensor mounted at fan location
- Renew or replace any conduit fittings
showing signs of corrosion
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no. Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
0070 1 EA 1903015 INSTALLATION & COMMISSIONING 116,768.13 116,768.13 - Line 0020 must be completed prior to or
in conjunction with this work
- 12-month limited parts warranty.
- Dräger scope for site installation to
include equipment rentals, disposal of old
equipment, connection, commissioning
- Dräger scope excludes site prep and
site utilities / supply (underground conduit
and pipe, permits, inspections
- Dräger scope includes travel-cost
provisions for installing line items 0010 -
0060 in one trip. (i.e. travel costs in the
case of separate purchases/installation
will be quoted separately). Overall, this
work will require two trips, and access to
the burn building for ~2 weeks minimum
(meaning the burn building will be out of
commission for 2 weeks).
- "Scope-of-work Split" to be confirmed
along with technical spec at time of
contract.
- Timing of installation to be confirmed
along with schedule at time of contract.
- Please note: Dräger highly recommends
full supply system testing. Pressure
testing of piping, inspection of tank farm,
and inspection of electrical supply prior to
our install. Failure of either the
tank-farm/propane supply, or the
electrical supply will delay install and
incur additional costs.
- Damaged equipment, failed equipment,
any unforeseen component replacement,
labor charges for service will be quoted at
standard rates.
--------------------------------------- ----------- ----- ------------ Net value excl. Sales Tax 462,914.12
+ Net Sales Tax 44,519.17
--------------------------------------- ----------- ----- ------------ Total amount 507,433.29
======================================= =========== ===== ============ Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no. Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
0080 1 EA 1903010 FREIGHT TO CUSTOMER SITE 12,087.00 12,087.00 Payment terms:
30 days after invoice date
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no. Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
PLEASE CHECK THIS QUOTE CAREFULLY FOR
ACCURACY IN PRICING, PART # AND
DESCRIPTION. Contact Customer Service
immediately if there are any discrepancies. This
acknowledgement and note constitutes the entire
agreement with respect to the contemplated
transaction and supersedes all previous
negotiations, proposals, writings, advertisements,
or publications.
Draeger, Inc. and the Customer agree that the
purchase of any product or service pursuant to
this document is subject to the attached terms
and conditions, which are incorporated by
reference.
Offer valid until: 12/28/2023
Delivery time to be coordinated with customer
training schedule and burn building availability.
Subject to project backlog at time of order entry.
A. 25% of total project price will be invoiced on
notice to proceed.
B. 50% of total project price will be invoiced when
equipment is shipped.
C. 25% will be invoiced when installation and
training are complete and system is handed over.
In the event Customer is not ready for product to be
delivered on the confirmed delivery date, Customer
must notify Draeger, Inc. 30 days prior to confirmed
delivery date to reschedule. If Customer fails to
provide notification, Draeger, Inc. may invoice
Customer for products and any additional costs to
hold product until Customer is ready for delivery.
Pos. Quant. Part no. Description Unit price Total price
USD USD
Quotation
Customer no. Quotation no. Date of offer
91172728 136213173 09/28/2023
Please reference on inquiries
Payer
Notes:
1) Please note prevailing wages are included in this
quotation.
2) All funds are in US Dollars.
3) Bonding price, if required, not included.
4) Price information valid 90 days from date on form.
Pricing is subject to change once quotation is past
validity.
5) Any building or electrical contractor permits are
responsibility of customer and are not included.
6) Warranty is 12 months after handover.
7) Training Systems which have completed fabrication
but cannot be delivered due to delays on the part of
the customer, may be charged a Storage Fee in the
amount of 2% of the project value, to be assessed
every thirty days after an initial 30-day free storage
period has passed, until delivery is possible.
8) Milestone Payment terms:
1 U.S. Terms and Conditions of Sale (Safety)
Effective – July 2023
4877-6831-8559, v. 4
DRAEGER, INC. TERMS AND CONDITIONS OF SALE (SAFETY)
1. GENERAL. These terms and conditions are integral to the agreement governing the sale and purchase of goods (“Goods”) and service (“Service”) between the seller, Draeger, Inc. (“Draeger”), and the purchaser (“Customer”). Goods and Service are referred to herein collectively as “Product.” The agreement governing this sale and purchase of Product (“Agreement”) consists of the following, all of which are hereby incorporated herein by reference: (i) these terms and conditions, (ii) the written sale or service agreement, if any, signed by Draeger and Customer (referred to herein singularly as “Party” and collectively as the “Parties”), including schedules thereto, that is in effect on the date the applicable Purchase Order (“PO”) is delivered to Draeger, and any amendments thereto (“Contract Document”), (iii) any price quote (“Quote”), and (iv) any PO submitted by Customer with respect to a Quote; provided, however, Draeger shall not be bound by any terms, conditions, or other provisions in a PO that are different from, in addition to, or inconsistent with, the other provisions of this Agreement.
2. PRICES.
(a) Prices are as stated in the Contract Document. If no Contract Document is in effect at the time the order is filled, the prices shall be as stated on the applicable Quote; provided, that such Quote is valid at that time. In all other cases, prices are those currently in effect on Draeger’s standard price list at time of shipment. Unless otherwise stated in writing by Draeger, prices include the cost of standard domestic packing. Prices exclude charges for freight, unloading, storage, insurance, taxes, excises, fees, duties, or other charges related to Product. Customer shall bear the cost of all applicable sales, use, property, excise, and manufacturer’s taxes and any duties, license, or similar fees, which may be imposed upon the sale, use, or performance of the Product. (b) If this Agreement is for multiple years, then the prices set forth herein are fixed only for the first 12 months hereof. Thereafter, Draeger may adjust the prices (“Price Adjustment”), pursuant to a proposed Price Adjustment notice (“Price Adjustment Notice”). Draeger shall provide the Price Adjustment Notice to Customer, in writing, specifying the adjustment, no less than 90 days in advance of a proposed Price Adjustment (“Price Adjustment Notice Period”). If Customer objects to the proposed Price Adjustment during the Price Adjustment Notice Period, then, notwithstanding anything else in this Agreement to the contrary, Draeger may cancel this Agreement with 60 days’ notice without penalty (“Price Termination Notice”). During the 60-day Price Termination Notice period, Customer may continue to purchase Products at the thencurrent price. If Customer does not object to the proposed Price Adjustment, then such proposed Price Adjustment shall go into effect on the date stated in the proposed Price Adjustment Notice and shall be incorporated herein by reference. Draeger shall fill all POs received prior to the effective date of the Price Adjustment or, if earlier, the termination of this Agreement, at the then-current prices. Unless otherwise agreed to by Draeger and Customer, all other terms, conditions, and provisions of this Agreement shall continue unchanged and remain in full force and effect after any such Price Adjustment.
A Price Adjustment does not obligate any of the Parties to agree to any other modification of this Agreement.
3. PAYMENT TERMS.
(a) Unless otherwise agreed in writing, Customer shall make payment in full without any set-off (for any reason) no later than 30 days from the date of invoice in United States Dollars (“USD”). Partial shipments of Goods shall be invoiced as shipped.
Draeger reserves the right to require (i) payment in advance, (ii) cash on delivery, or (iii) a modification of credit terms.
(b) Notwithstanding the foregoing, payment on advance orders paid by credit card shall be charged and paid for at that time of the order. All payments made with personal credit cards may include an administrative fee of up to 2.8% of the value on the invoice. Payments made through corporate purchasing credit cards may include an administrative fee of up to 2.5% of the value on the invoice. (c) Draeger reserves the right in the event of late payment: (i) to suspend all deliveries or Service or to cancel any of its outstanding obligations under this Agreement; or (ii) to charge interest on the late payment calculated on a day-to-day basis until the actual date of payment at the lower of (A) an annual rate of 12% or (B) the maximum rate allowed by law. Such remedies are in addition to any other rights or remedies available to Draeger under the law.
(d) If Customer pays less than the full amount due, the payment will be applied toward the outstanding balance. Draeger’s acceptance of part of the amount due shall not interfere with Draeger’s right to recover the balance of the amount due or right to pursue any other right or remedy under the law.
(e) All POs are subject to credit approval by Draeger.
4. DELIVERY, INSTALLATION, RISK, AND TITLE.
(a) Title to, and risk of loss for, the Goods shall pass to Customer upon delivery as determined on the basis of FCA (INCOTERMS 2020) prepay and add all related transportation and insurance costs as a separate line item to the invoice to Customer unless Customer provides their own transportation provider and/or account number in which case the delivery is determined on the basis of EXW (INCOTERMS 2020). Upon passage of title of the Goods from Draeger to Customer or, if earlier, the date as of which Draeger makes a commercially reasonable attempt to deliver Goods, Customer shall be responsible and liable for, and agrees to defend and indemnify Draeger against, all claims, injuries, losses fines, penalties, damages, or costs resulting from Customer’s storage, handling, disposal, release, use, or resale of the Goods or their containers. (b) Delivery, installation, and completion dates are only approximate and Draeger will not be liable for failure to meet such dates. Notwithstanding the foregoing, Draeger shall use reasonable efforts to meet quoted delivery, installation, and completion dates. Partial shipments may be made at Draeger’s sole discretion or, with Draeger’s consent, at Customer’s request.
(c) Unless stated otherwise in writing by Draeger, freight and transportation costs, including standard ground transportation, packing, custom duties, and other similar charges, shall be borne as follows: (i) for PO orders equal to or less than $15,000, Customer shall bear all such costs, (ii) for PO orders greater than $15,000, Draeger shall bear all such costs. Notwithstanding the foregoing, in the event Customer requests an expedited order, Customer shall bear the additional costs. (d) Customer shall use commercially reasonable efforts to allow for timely delivery of Goods, including, without limitation, providing instructions, granting access during Customer’s business hours (or such other time agreed by the Parties), and obtaining any required licenses or permits.
(e) Installation costs, if applicable, are included in the price of Goods, unless indicated as a separate Service on the Contract Document or Quote.
Customer is responsible for ensuring that the installation site is fully prepared prior to installation and for bearing all costs necessary to prepare site for installation in accordance with Draeger’s instructions, including, without limitation, (i) engaging in any required labor, (ii) acquiring any required materials, (iii) to the extent applicable, ensuring that the Customer’s network (A) meets any Draeger specific requirements, and (B) is fully functioning as mandated by all manuals and other instructions requested of Customer by Draeger, and (iv) ensuring compliance with all governmental requirements, including without limitation, all certifications and approvals for installation and operation. Customer shall provide to Draeger or its subcontractor, as applicable, access to the installation site and, if required, safe and secure space on site for storage of Goods and equipment prior to and during installation.
5. ACCEPTANCE. Customer shall inspect Goods received and notify Draeger of any Nonconforming Goods prior to acceptance. Goods shall be deemed to be accepted by Customer 15 days from date of delivery; provided, however, that (i) if earlier, acceptance shall occur immediately on the first day Customer uses Product, or (ii) with respect to Goods requiring installation (other than connection to Customer network), acceptance shall occur on the earlier of 5 days after installation or 30 days after delivery.
Installation shall be deemed to be completed upon final verification under Draeger’s standard procedures that Goods meet all applicable written performance obligations. For this purpose, “Nonconforming Goods” means (i) Goods that are different from those identified on the PO confirmation or (ii) Goods with label or packaging that incorrectly identifies contents. Draeger shall, at its sole discretion, replace Nonconforming Goods with conforming Goods or credit or refund the price of Nonconforming Goods. Such remedy is the exclusive remedy for Nonconforming Goods. Draeger shall bear the shipping costs related to return and replacement of Nonconforming Goods.
6. CHANGES AND RETURNS.
(a) POs may not be changed or canceled after PO is accepted by Draeger. (b) Draeger reserves the right, subject to written notice, to substitute Goods or change specifications of Goods, which, in Draeger’s judgment, does not materially affect the installation, performance, function, or price thereof. Goods may only be returned with prior authorization from Draeger. Eligible returns must follow the Customer Material Return Process in effect at the time of return as specified at https://www.draeger.com/Library/Content/RMA-Process-Safety-2023.pdf and which is hereby incorporated herein by reference (“RMA Process”). Unless warranty applies or in the case of a Nonconforming Good, restocking fees of up to 25% may apply.
7. DELAY OR FAILURE TO PERFORM OBLIGATIONS.
(a) Draeger shall not be deemed to be in breach or otherwise liable for any delay or failure in performance of any of its obligations under this Agreement caused, in whole or in part, by any act or omission of Customer or its agents, subcontractors, or employees. (b) Neither Party shall be liable for failure to perform obligations (except for payment obligations) under this Agreement to the extent that such failure arises out of events beyond its reasonable control including, but not limited to, acts of government or compliance with any governmental laws, rules or regulations, acts of God, war, terrorist threats or acts, civil disturbance, fire, or other casualty, pandemic, strike, labor dispute, or unavailability of labor, carriers, raw materials, power, or supplies. Any delivery date may be extended, at Draeger’s option, to the extent of any delay resulting from any such event.
8. WARRANTY.
(a) Goods. Draeger warrants that under normal use and with prescribed maintenance, storage, and care, Goods are free from defects in material and workmanship for the warranty period. Except as provided in a separate warranty statement in Goods manual or otherwise provided with Goods, the warranty period for new capital equipment is 12 months from date of delivery and disposable and consumable Goods (excluding sensors) are warranted at time of delivery only. All other Goods are warranted for 90 days from (i) date of delivery or (ii) in the case of software, date of implementation signoff, or first productive use. Warranty is conditioned on (i) Customer providing immediate written notice of warranty-related claim to Draeger and following RMA Process, (ii) no repairs, modifications, or alterations being made to Goods other than by Draeger or its authorized representatives, (iii) Customer handling, using, storing, installing, operating, cleaning, and maintaining Goods in compliance with the instructions and specifications provided with Goods or incorporated into this Agreement, (iv) use of Goods only for the use intended by Draeger, (v) defect not related to the attachment of Goods to non-Draeger 2 U.S. Terms and Conditions of Sale (Safety)
Effective – July 2023
4877-6831-8559, v. 4
supplied equipment or to Customer’s network issues, (vi) Customer having fulfilled its payment obligations for Goods, and (vii) an inspection by Draeger that reveals that Customer’s claim is valid under the terms of the warranty. Customer’s remedy for a breach of this warranty is limited to repair, replacement, credit, or refund, at the sole option of Draeger. Repair or replacement may be with parts or product that are new, used, or refurbished. Repairs or replacements shall not interrupt, extend, or prolong the warranty period.
(b) Service. Draeger warrants that the Service shall be performed in a professional manner in accordance with generally recognized industry standards for similar service. Claims for breach of this Service warranty must be submitted to Draeger in writing within 90 days of the completion of Service. Customer’s remedy for breach of Service warranty is limited to reperformance, credit, or refund, at the sole option of Draeger.
(c) Third-Party Product. If this Agreement includes the sale of third-party product not manufactured by Draeger or any of its affiliates, such products are provided to Customer solely at the direction of Customer with no recommendation by Draeger.
Draeger makes no warranty for any third-party product. Customer’s sole warranty for any third-party product, if any, is the original manufacturer’s warranty, which Draeger agrees to pass on to Customer, as applicable. The obligation of Customer to pay Draeger for the third-party product is absolute and unconditional, and Customer waives and releases Draeger from all claims, damages, and losses arising out of such third-party product regardless of any claims Customer may have regarding such third-party product. (d) No Other Warranties. THE WARRANTIES IN THIS SECTION 9 ARE
THE SOLE AND EXCLUSIVE WARRANTIES MADE WITH RESPECT TO
PRODUCT. DRAEGER MAKES NO OTHER WARRANTY EXPRESS OR
IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, TITLE,
THIRD-PARTY NONINFRINGEMENT, COURSE OF DEALING, AND USAGE OF TRADE. DRAEGER DOES NOT WARRANT OR GUARANTEE THAT ANY
PRODUCT WILL BE SECURE FROM CYBER THREATS, HACKING, OR
SIMILARLY MALICIOUS ACTIVITY. DRAEGER DOES NOT WARRANT
ANY CUSTOMER OR THIRD-PARTY PROVIDED NETWORK OR THE
PERFORMANCE OF PRODUCT AS IMPACTED BY SUCH NETWORK
CONNECTION.
9. SERVICE BRIDGE SOLUTION. If Customer’s use of Goods purchased is likely to be interrupted or delayed for an extended period due to the need to service the Goods, delay in delivery, or recall, upon Customer’s request, Draeger may, to the extent available, temporarily place reasonably comparable equipment with Customer for its use until such time as the affected Goods are returned, repaired, or delivered, as applicable.
Such placement is part of Draeger’s warranty, contracted Service, or recall obligations, as applicable, and provided at no additional charge to Customer. Customer’s option for such temporary use of equipment shall mitigate any damages or losses, if any, that would otherwise be incurred by Customer for such period.
10. INDEMNITY. To the extent permitted under applicable law, Draeger and Customer (each as “Indemnitor”) shall indemnify the other Party and its affiliates (collectively “Indemnitee”) from and against all third-party claims alleging bodily injury, death, or damage to the third-party’s tangible property, but only to the extent caused by the Indemnitor’s negligence or willful misconduct. No part of Customer’s sites is considered third-party property for purposes of this indemnity. Indemnitee shall provide Indemnitor with prompt written notice of any third-party claims covered by this Section
10. Indemnitor has the unrestricted right to select and hire counsel and the exclusive right to conduct the legal defense or settle the claim on the Indemnitee’s behalf; subject to Indemnitee’s consent, which shall not be unreasonably withheld or delayed. Indemnitor shall not make any admissions that might be prejudicial to the Indemnitee.
11. INSURANCE. If during the term of this Agreement Draeger may need access to Customer’s premises to perform Service or for other reasons, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum no less than $1,000,000 per occurrence and $5,000,000 in the aggregate with financially sound and reputable insurers. Upon Draeger's request, Customer shall provide Draeger with a certificate of insurance from Customer's insurer evidencing the insurance coverage specified in this Agreement and which names Draeger as an additional insured. Customer shall provide Draeger with 30 days advance written notice in the event of a cancellation or material change in Customer's insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Draeger's insurers and Draeger.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY PARTY BE
LIABLE TO THE OTHER PARTY OR THEIR AFFILIATES, WHETHER IN
CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY,
INDEMNITY, OR ANY OTHER LEGAL THEORY, FOR LOST PROFITS OR
LOST STORED, TRANSMITTED, OR RECORDED DATA, OR FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY
DAMAGES, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WITH
RESPECT TO ANY MATTERS RELATING TO THIS AGREEMENT,
REGARDLESS OF WHETHER THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. DRAEGER’S MAXIMUM LIABILITY
UNDER THIS AGREEMENT IS THE ACTUAL PURCHASE PRICE RECEIVED BY DRAEGER FOR THE PRODUCT THAT GIVES RISE TO THE CLAIM.
13. PATENT, TRADEMARK, AND OTHER INFRINGEMENT CLAIMS. In the event of any claim, suit, or proceeding brought against Customer alleging any Draeger manufactured Good violates any patent, trademark, or copyright about which Customer notifies Draeger in writing within 5 days after Customer becomes aware of the allegation, Draeger shall, at its option and expense, (i) defend such claim, suit, or proceeding, (ii) procure the Customer’s right to use the Good, (iii) remove or modify the Good to avoid infringement, or (iv) allow Customer to return the Good and refund the purchase price paid to Customer less reasonable depreciation for Customer’s use of the Good. In the event of defense of such claim, suit, or proceeding, Customer shall give Draeger information, assistance, and exclusive authority to fully control the defense and settlement of such claim, suit or proceeding. This indemnity shall not apply if Customer modifies or combines, operates, or uses the Good with any product, data, software, apparatus, or program not provided by Draeger and Customer shall indemnify and hold Draeger harmless against any liability or expense, including reasonable attorneys’ fees, incurred by Draeger in connection therewith.
14. RIGHTS IN SOFTWARE, DOCUMENTATION, AND INTELLECTUAL PROPERTY. To the extent software, data, or other documentation or information (collectively, “Software”) is embedded in or delivered with any Goods sold under this Agreement, the sale of such Goods shall not constitute the transfer of the ownership rights in such Software. The Software shall remain Draeger’s property and Draeger grants to Customer a non-exclusive, non-transferable license solely to use the Software for the purpose, and in the manner, for which the Software was designed and produced.
Customer shall not modify, reverse engineer, or create derivative works based on any of the Software, or permit any third party to do so. In addition, to the extent any third-party software is included in the Software, Customer will comply with any third-party software license terms provided by Draeger to Customer. Software that is provided separately to Customer as a Product is not included under this Section 14, but is governed under a separate license agreement, and may be subject to a licensing fee.
15. DATA PROTECTION. The Parties agree to comply with any privacy and data protection laws, including without limitation the General Data Protection Regulation (GDPR), to the extent relevant to the exchange of data between the Parties or storage or exchange of data in connection with Product provided hereunder.
16. TERMINATION. In addition to any remedies that may be provided under these terms and conditions, Draeger may terminate this Agreement or any part thereof with immediate effect upon written notice to Customer, if Customer: (i) fails to pay any amount when due under this Agreement and such failure continues for 30 days after Customer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any obligations of this Agreement, in whole or in part; (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors; or (iv) undergoes a change of control or ownership.
17. CONFIDENTIAL INFORMATION. All non-public, confidential, or proprietary information of Draeger disclosed by Draeger to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Draeger in writing. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure without any confidentiality or restriction on use; or (c) rightfully obtained by Customer on a non-confidential basis from a third-party.
18. OTHER TERMS.
(a) Compliance with Laws. The Parties shall comply with all applicable laws and regulations, including, but not limited to, any laws and regulations relating to the import, or export, of any Product or associated technical data. (b) Benefit and Assignment. Neither Party may assign, subcontract, or delegate any rights or obligations under this Agreement, without the prior written consent of the other Party, unless otherwise stated in this Agreement. Notwithstanding the foregoing, Draeger may assign any of its rights and obligations under this Agreement to one of its affiliates without notice to, or consent of, Customer. This Agreement shall inure to and be binding on the Parties and their respective successors, permitted assigns, and legal representatives. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. (c) Modification. This Agreement may not be changed, modified, or amended, except in writing signed by duly authorized representatives of the Parties. (d) Governing Law, Venue, and Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, without giving effect to any conflict of law provisions. The Parties hereto hereby agree that the application of the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement and is expressly excluded.
Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be brought before a court of competent of jurisdiction located in the Commonwealth of Pennsylvania. The Parties irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. EACH PARTY WAIVES ALL RIGHTS TO
A TRIAL BY JURY IN CONNECTION WITH ANY DISPUTE ARISING UNDER THIS AGREEMENT.
3 U.S. Terms and Conditions of Sale (Safety)
Effective – July 2023
4877-6831-8559, v. 4
(e) Integration and Survival. This Agreement together with any attachments or other documents incorporated by reference herein, constitute the entire agreement. The terms of this Agreement that by their nature are intended to survive its expiration or termination will continue in full force and effect after its expiration or termination. (f) Severability; Headings. No provision of this Agreement, which may be deemed unenforceable, will in any way invalidate any other portion or provision of this Agreement. Section headings are for reference only and will have no substantive effect. (g) Waiver. No waiver of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the Parties. No failure and no delay in exercising, on the part of any Party, any right under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right preclude the further exercise of any other right.
(h) Relationship of the Parties. The Parties are independent contractors.
Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
(i) Injunction. Customer agrees that the remedies at law may be inadequate to protect Draeger against any actual or threatened breach of Sections 14 or 17 of this Agreement, and, without prejudice to any other rights and remedies otherwise available, Draeger will be entitled to seek injunctive relief.
(j) Limitation of Actions. Any action against Draeger arising out of this Agreement shall be commenced within one year from the date such cause of action has accrued, otherwise the same shall be barred.
(k) Notices.
Notices shall be in writing and shall be deemed served upon receipt and shall be delivered in person or by nationally recognized courier or certified mail to Draeger, Inc. 3135 Quarry Road, Telford, PA 18969, Attention President with a copy to the same address to the attention of General Counsel (such copy shall not constitute service of process).
End of Terms and Conditions of Sale (Safety)