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Sales Agreement # 00000177
Date: March 24, 2023
EQUIPMENT SALES AGREEMENT
SECTION A:
Agreement made on March 24, 2023 ("Contract Date") and entered into by and between Komptech Americas LLC of 6345 Downing Street, Denver, CO 80216 herein referred to as the “Seller” and City of Sunnyvale referred to as “Buyer”. Seller hereby agrees to transfer to Buyer the equipment described in Section B, herein referred to as Equipment, upon the terms and conditions contained in this Agreement.
SECTION B :
EQUIPMENT DESCRIPTION PRICE
Terminator 5200S-E Direct SL-Complete (Stationary) TBD Included with the machine:
1.1 TM 5200 SL Direct
1.2 2 @ 60'' Unders Transfer Conveyors
1.3 Flip Gate
1.4 Steel Package for Shredder and Conveyors Supports
1.5 Supports, Hoppers, Guards, Belt Scrapers
1.6 Electrical Installation
1.7 Mechanical Installation
1.8 Stamped Engineer Drawings
1.9 Project Management and Documentation
1.10 Maint. Platform
1.11 Apron Wall Protections
$1,334,300.00
Delivery and Mechanical/Electrical Installation
$0.00
Start-up Training and Commissioning
$0.00
Total: $1,334,300.00
Estimate Delivery Date: January 2024
Attachment 1
Payment Terms: Other Terms
Notes
This equipment sales agreement and equipment order is subject to a price increase up until the time of delivery. Due to global supply chain constraints, rising material costs and logistics costs and extended delivery times for major components, pricing is subject to change after an official order has been placed. While we will make all commercially best efforts to notify you at least 60 days ahead of the planned delivery date if there will be a price increase and to what extent, we cannot guarantee this. All canceled orders are subject to a cancellation fee of 2% of the purchase price noted on the agreement. This equipment sales agreement and equipment order is subject to a price increase up until the time of delivery. Due to global supply chain constraints, rising material costs and logistics costs and extended delivery times for major components, pricing is subject to change after an official order has been placed. While we will make all commercially best efforts to notify you at least 60 days ahead of the planned delivery date if there will be a price increase and to what extent, we cannot guarantee this. All canceled orders are subject to a cancellation fee of 2% of the purchase price noted on the agreement.
• Transportation
to the customer location listed in Section D.
• Machine Warranty: 2yr / 4000hrs whichever comes first. • NOTE*** Terms Agreement will also need to be executed upon confirmation of options and final sign off of project. •
• 40% Due upon order - $533,720.00
• 50% Prior to shipment from Europe - $667,150.00
• 10% Upon installation no later than 60 days after delivery - $133,430.00 •
• Warranty and Transfer of Risk-
•
• 2 years, 4,000 hours
• Not included within the scope of the warranty are wearable parts and damage resulting from improper use or non- compliance of documentation.
• For minor warranty issues that relate to the replacement of smaller, single constructional and functional elements, the warranty is limited to the free-of-charge replacement of defective parts. • Following completion of the start-up process, but no later than 3 months after delivery/readiness for delivery, the equipment is transferred temporarily to the end customer (temporary transfer). • From this time point on, any risk associated with the operation of the equipment is passed over to the end customer. • The warranty agreed upon commences.
• An acceptance report is compiled for the acceptance procedure. Any remaining work is carried out as part of this acceptance report. Remaining work that does not impact the operation of the equipment must not result in refusal of acceptance.
•
•
• Komptech Sourcewell Contract number - #050119-KMP
• City of Sunnyvale Sourcewell member number- ID# 112774 Attachment 1
SECTION C:
All prices are in USD. Buyer agrees to accept the equipment and pay the balance due per the terms shown above by bank or certified check or by wire transfer to account designated below by Seller. All taxes that apply are the responsibility of the buyer.
Wiring Instructions:
Comerica
C/o Komptech
Americas LLC
1717 Main Street
Dallas, TX 75201
Account #
1883420059
Routing #
111000753
SECTION D:
Equipment shall be deemed received by Buyer when shipped from point of origin; or if any written description in section B above references the unit “where/is”, equipment shall be deemed received by Buyer upon signing the agreement. Delivery of unit will be to the following address:
301 Carl Road,
Sunnyvale,California,94089
United States
At the
buyer’s request, with the buyer’s cooperation, and within a reasonable time following delivery of the equipment not to exceed 60 days, the seller, (at no additional charge to the buyer), will conduct a demonstration of the equipment for purposes of showing that the equipment is operational. Buyer, upon seller's request, will promptly execute an acknowledgment, in a form prepared by the manufacturer, confirming that the equipment is operational; provided, however, that the failure by the buyer to execute said acknowledgment upon seller's request shall not relieve the buyer of its obligation to accept the equipment or any of buyer's other obligations under this agreement if the equipment is, in fact, operational.
SECTION E:
Until such
time as said equipment has been fully paid by the buyer, ownership of equipment shall remain with the seller. Buyer hereby grants to Seller a first priority security interest in the contractual products. Such interest shall remain in force until payment in full of the entire purchase price and any other amounts due to the seller by the buyer. Buyer hereby expressly authorizes Seller to file a financing statement pursuant to the uniform commercial code to establish, perfect, preserve and protect seller’s security interest in the collateral as a legal, valid, and enforceable security interest and lien. The buyer does not possess a right of offset under any circumstance or right of return of said equipment.
Attachment 1
SECTION F:
The seller warrants that the equipment is currently free from any security interest or other lien or encumbrance, that the equipment shall be free from same at the time of delivery, and that seller neither knows nor has reason to know of any outstanding title or claim of title hostile to seller's rights in the equipment.
Seller does not warrant or represent that the equipment incorporates approved activating mechanisms, operator safety devices, safety guards, or other safety features as required by OSHA or any other governmental agency or otherwise. It is Buyer's responsibility that the Equipment be so safeguarded to meet OSHA and any other requirements before placing the Equipment into operation.
The buyer has the right to examine the equipment on arrival and has a reasonable time, not to exceed 7 days following the date of delivery, to notify the seller in writing of any claim for damages, other than operational defects, with respect to the general condition and serviceability of the equipment. Said written notice must specifically set forth the basis of the buyer's claim, and the buyer's failure to either notice seller within the stipulated period of time or to set forth specifically the basis of the buyer's claim will constitute irrevocable acceptance of the equipment. Any stated warranty on equipment does not include the engine. This paragraph is invalid if any written description in section B above references the unit “as/is”.
SECTION G:
This Agreement
shall be governed by the laws of the State of Colorado, without regard to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the laws of the State of Colorado. This Agreement, together with its Exhibits, constitutes the entire agreement between Seller and Buyer with respect to the Equipment, and all representations and warranties not contained in this Agreement shall not be binding upon Seller as a warranty or otherwise.
If Seller's
ability to perform its obligations under this Agreement is substantially interrupted by war, fire, insurrections, riots, the elements, earthquake, acts of God, or, without limiting the foregoing, any other similar cause beyond the control of Seller, Seller shall be relieved of its obligations only to those affected portions of this Agreement for the duration of such interruption.
For the purposes
of this Agreement, any notices and demands required to be given shall be given to the appropriate party in writing, and by certified or regular mail at the last known address of each party or to such other address as either party may hereafter substitute by written notice. In the event any provision of this Agreement is invalidated for any reason whatsoever, the parties agree that this Agreement, except as to such invalidated provision, shall remain to be in full force and effect.
This Agreement
shall benefit and bind Seller and Buyer and their respective successors and assigns.
This Agreement may be executed in two facsimile counterparts, each of which shall constitute an original but all of which shall constitute one and the same agreement
Attachment 1
SELLER:
Komptech Americas LLC
6345 Downing Street,
Denver, CO 80216
\signature1\
ignature1
Signature:
\fullname1\ \title1\
Name (Print): Title
BUYER:
By execution
of this Agreement, Buyer hereby (i) authorizes Seller to order and ship the Equipment, (ii) represents that the person executing this Agreement has the full [corporate] power and authority to do so, and (iii) agrees to comply with and be bound by each of the terms and conditions set forth above.
City of Sunnyvale
456 West Olive Avenue,
Sunnyvale, California 94086,
United States
\signature2\
Signature:
\fullname2\ \title2\ Name (Print): Title
Attachment 1
Project Order Contract
601814311.4
TERMS OF PURCHASE
These Terms of Purchase (“T erms”) are entered into this 1 day of April, 2023, by and between M-L Environmental LLC, and Komptech Americas LLC and/or M-L Holdings Company Environmental Group LLC, each with a place of business at 6345 Downing St, Denver, CO 80216 (“Supplier”), on the one hand, and City of Sunnyvale/SMaRT, with a place of business at 301 Carl Rd. Sunnyvale, CA. 94089 (“Purchaser”), on the other hand.
Purchaser wishes to receive certain Equipment and I nstallation Services from Supplier and Supplier is willing to provide Purchaser with such Equipment and Installation Services in accordance with the terms and conditions provided herein.
In consideration of the premises above, and the terms and conditions herein contained, the Parties agree as follows:
SECTION 1. SCOPE
These Terms, together with all Exhibits attached hereto, constitute the parties’ entire agreement regarding the Equipment and Installation Services provided hereunder (this “ Agreement”) and supersedes all prior or contemporaneous communication and proposals (whether oral, written or electronic) between the parties’ with respect to the Equipment and Installation Services. In addition to these Terms, the Equipment and Installation Services are also subject to additional terms set forth in exhibits to these Terms (each an “ Exhibit” and collectively the “ Exhibits”) covering the particular Equipment or Installation Services described in that Exhibit. In the event of a conflict between these Terms and any terms and conditions in any Exhibit, the terms of the Exhibit will control as to the Equipment and Installation Services to which the Exhibit relates, and these Terms will control in all other respects.
SECTION 2. EQUIPMENT
Subject to the terms and conditions provided in this Agreement, including payment of all Fees, Supplier will provide Purchaser the equipment specified in the Equipment Purchase Agreement / Sales Agreement by and between Komptech Americas and City of Sunnyvale attached hereto as Exhibit 1.
Purchaser has reviewed and approved the technical specifications (“Specifications”) for the Equipment available in previously submitted documents.
SECTION 3. DELIVERY
The Equipment will be delivered within a reasonable time after execution of this Agreement. Supplier shall not be liable for any delays, loss , or damage in transit. Unless otherwise agreed in writing by the parties, Supplier shall deliver the Equipment to the location specified in the applicable Exhibit (the “Delivery Point”) using Supplier’s standard packaging and shipping methods. Delivery terms are specified in the applicable Exhibit. Delivery dates set forth in any Exhibit are estimates in all cases. Unless otherwise agreed in writing by the parties, Purchaser shall take receipt of the Equipment upon the Equipment’s delivery to the Delivery Point and shall be responsible for all loading or unloading costs and provide equipment and labor reasonably suited for receipt of the Equipment at the Delivery Point. Supplier may, in its sole discretion, without liability or penalty, make partial shipments of Equipment to Purchaser.
Each shipment will constitute a separate sale, and Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of an Equipment Purchase Agreement. If for any reason Purchaser fails to accept delivery of any of the Equipment at the Delivery Point, or if Supplier is unable to deliver the Equipment at the Delivery Point on such date because Purchaser has not provided appropriate instructions, documents, licenses, authorizations, or equipment and/or labor for unloading:
(i) risk of loss to the Equipment shall pass to Purchaser; (ii) the Equipment shall be deemed to have been delivered; and (iii) Supplier, at its option, may store the Equipment until Purchaser picks it up, whereupon Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
Attachment 1
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SECTION 4. RISK OF LOSS; INSURANCE; TITLE; SECURITY
a. Unless otherwise specified in the applicable Exhibit, risk of loss passes to Purchaser upon tender of the Equipment to the carrier at the facility of Supplier or its equipment provider, as applicable.
Supplier or its equipment provider, as applicable, shall retain all right, title, and interest in and to the Equipment until full and complete payment of the applicable Fees has been received. Following transfer of risk of loss, Purchaser shall be solely responsible for the Equipment, and all liability, loss or damage to the Equipment and any part thereof occasioned in any manner whatsoever shall be borne by Purchaser. No terms in this Agreement shall operate to extinguish or diminish the liability of Purchaser to Supplier relating to the foregoing.
b. Until title has transferred to Purchaser, Purchaser shall insure the Equipment in favor of Supplier against all reasonably foreseeable risks related to the Equipment, including fire and other hazards generally covered by extended fire coverage insurance, as well as for any other hazards required by Supplier, for the full insurable value of the Equipment. Purchaser shall only obtain insurance policies with carriers whose A.M. Best rating is at least A- and shall name Supplier as an additional insured on a primary and non-contributing basis under such policies. Purchaser shall provide Supplier with a certificate of insurance evidencing such coverage upon request. Until Purchaser provides such a certificate of insurance, however, Supplier may have the Equipment insured for Supplier’s benefit and Purchaser shall be liable for all premiums thereon and shall pay or reimburse Supplier for same. c. Title passes to Purchaser upon payment of the Equipment Fees in full. Without limiting the foregoing, in order to secure the prompt payment of all Fees for each item of Equipment outstanding from time to time with respect to this Agreement, and the performance and observance by Purchaser of all of the provisions of this Agreement relating to the Equipment, Purchaser hereby grants to Supplier a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the Equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code, and such security interest may be recorded by Supplier accordingly.
SECTION 5. SERVICES
Subject to the terms and conditions provided in this Agreement, including payment of all Fees, Supplier will provide Purchaser the services specified in the Ko mptech Americas – Professional Services Offer, attached as Exhibit 6 hereto (“Services”). Purchaser acknowledges and agrees that a portion of the Services, namely the supply, delivery, installation, and commissioning of the Equipment may include certain sub-vendor Equipment and Installation Services, and all warranty services applicable to the sub- vendor Equipment and Installation Services, if any, will be performed by sub- vendor and sub-vendor’s subcontractors (the “Sub-Vendor Services”). See Project Offer for Sub Contractor Inclusions.
SECTION 6. CHANGE ORDERS
Any change in the details of Exhibit 6 or the assumptions upon which Exhibit 6 is based may require changes in the project budget, payment schedule or project schedule. Every such change shall require a written amendment to Exhibit 6 (a “ Change Order”). Each Change Order shall detail the requested changes to the applicable task, responsibility, duty, budget, timeline, or other matter. The Change Order will be executed by either the Supplier or a sub- vendor or both, as applicable, depending on the scope and equipment effected by the contemplated change, and it will become effective upon the execution of the Change Order by both parties, and the Change Order will specify the period of time within which Supplier or Sub-Vendor must implement the changes. All parties agree to act in good faith and promptly when considering a Change Order requested by the other party, but no party is obligated to execute a Change Order. No Change Order shall become effective unless and until it is signed by both Purchaser and Supplier.
SECTION 7. SU SPENSION OF WORK
Attachment 1
Project Order Contract
601814311.4
If any payment required by this Agreement is not made to Supplier as required under this Agreement, Supplier may suspend all Services or delivery of Equipment until such payment is made. Supplier may also suspend Services or deliveries under this Agreement if a dispute over payment for extra work, differing site conditions, changes by Purchaser or other circumstances beyond Supplier’s control , including delays caused by Sub-Vendors to Supplier, will cause the Supplier to suffer substantial financial hardship if Supplier is required to continue the Services. Supplier may request that Purchaser provide written evidence of Purchaser’s ability to pay Supplier for the Services remaining to be performed by Supplier at any time prior to or during performance of this Agreement. Supplier may suspend the Services and any Equipment deliveries under this Agreement if Purchaser fails to promptly provide such evidence.
SECTION 8. SITE ACCESS AND RIGHTS OF WAY
The Purchaser shall timely provide all necessary access to the lands upon which the Services are to be performed, including convenient access to the lands and any other lands reasonably designated as necessary by Supplier for provision of the Services. Purchaser shall continue to provide such access until completion of all Services. Any failure to provide such access shall entitle the Supplier to an equitable adjustment in the Fees and the applicable delivery schedules.
SECTION 9. PRICE AND PAYMENT
a. Purchaser shall (x) pay for the Services at the prices set forth in the Komptech Americas – Professional Services Offer, attached as Exhibit 6 hereto, and in accordance with the Komptech Field Services Rates, attached as Exhibit 7 hereto; and (y) purchase the Equipment from Supplier at the prices set forth in the applicable Equipment Purchase Agreements, attached as Exhibits 1 and 2 hereto (collectively the “Fees”). Unless otherwise agreed by the parties in the applicable Exhibit, all Fees are exclusive of all (i) packaging, transportation costs, and insurance and (ii) sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such charges, costs and taxes; provided, that, Purchaser shall not be responsible for any taxes imposed on, or with respect to, Supplier’s income, revenues, gross receipts, personnel or real or personal property or other assets. b. Unless otherwise specified in the applicable Exhibit, Purchaser shall pay all invoiced amounts due to Supplier within 30 days of the invoice date. Purchaser shall make all payments hereunder in US dollars. Purchaser shall pay interest on all late payments at the lesser of 1.5% per month or the highest rate permissible under applicable law, and a 5% surcharge on any rejected or denied payment due to insufficient funds or other defect preventing processing of that payment. Purchaser shall reimburse Supplier for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
Purchaser shall not withhold or offset any amounts due and payable hereunder for any reason, including any claim or dispute with Supplier.
SECTION 10. CONFIDENTIALITY
Each party (“Recipient”) may receive Confidential Information from the other party (“Discloser”) during the Term of this Agreement. Each Recipient agrees to protect from disclosure such Confidential Information with the same degree of care that it affords its own confidential information, but in no event with less than reasonable care. For purposes of this Agreement, “Confidential Information” means all information regarding a party’s business or affairs, including customer information, marketing information, financial information, data (including software code), business concepts, business strategy, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, and customer lists, whether in oral, written, or electronic form, that is either: (a) designated as confidential; (b) of a nature such that a reasonable person would recognize it as confidential; or (c) disclosed under circumstances such that a reasonable person would know it is confidential. The terms and conditions of this Agreement shall constitute the Confidential Information of each of the parties. The following information will not be considered Confidential Information: (i) information that is publicly available through no fault of the party that was obligated to keep it confidential; (ii) information that was known by a party prior to commencement of discussions regarding the subject matter of this Agreement; (iii) Attachment 1
Project Order Contract
601814311.4
information that was independently developed by a party; and information rightfully disclosed to a party by a third party without continuing restrictions on its use or disclosure. Each Recipient may disclose the Confidential Information: (x) solely to the extent necessary to comply with an order or requirement of a judicial or administrative process, provided that Recipient promptly notifies Discloser and allows Discloser sufficient time to oppose such disclosure; and (y) to its Affiliates in connection with its corporate and financial reporting requirements. Each Recipient will return to Discloser, or destroy (if requested), all of Discloser’s Confidential Information in Recipient’s possession or control and permanently erase all electronic copies of such Confidential Information promptly upon Discloser’s written request or the expiration or termination of this Agreement.
SECTION 11. TECHNOLOGY
Supplier has invested extensive time and money in the Equipment provided under this Agreement and, as between the Parties, the Equipment and all component parts, designs, drawings, specifications, and machinery comprising the Equipment (collectively, the “ Technology”), constitute the valuable trade secrets of Supplier. Purchaser will not, and will not permit any third party to: (a) copy, reproduce, duplicate, or make any drawing of the Technology or any part thereof; (b) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Technology, or any part thereof; or (c) alter, modify, reproduce, or create derivative works of the Technology, or any part thereof.
SECTION 12. TERMINATION
In addition to any remedies that may be provided under this Agreement, Supplier may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with the Agreement, in whole or in part; (c) 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; (d) does not insure the Equipment or provide Supplier certificates evidencing such insurance; or (e) allows the Equipment to be used in an abusive manner or confiscated prior to payment of all Fees. Upon termination by Supplier under this Section, prepaid Fees shall not be refunded, any overdue Fees shall be immediately due and payable, and any Equipment not paid for in full shall be promptly returned to Supplier or Supplier shall be immediately paid in full by Purchaser.
SECTION 13. WARRANTIES
a. Each party represents, warrants, and covenants that: (i) such party has full power and authority to enter into this Agreement and to perform its obligations under this Agreement; (ii) this Agreement is a legal and valid obligation binding upon such party and enforceable in accordance with its terms; and (iii) this Agreement will not conflict with, result in a breach of, or constitute a default under any other agreement to which such party is a party or by which such party is bound. b. Excluding the Sub-Vendor Equipment and the Equipment covered by the Manufacturers’ Warranties (other than as regards the installation to the extent included in the Services ), Supplier warrants to Purchaser that, on delivery, the Equipment will materially conform to Supplier’s published Specifications attached as Exhibits to these Terms. Supplier shall not be liable for a breach of this warranty unless: (i) Purchaser gives written notice of the defect, reasonably described, to Supplier within 5 days of delivery, or in the case of latent defects, within 5 days of the time when Purchaser discovers or reasonably should have discovered the defect; (ii) Supplier is given a reasonable opportunity after receiving the notice to examine such Equipment; and (iii) Supplier reasonably verifies Purchaser’s claim that the Equipment is defective. Supplier shall not be liable for any breach of this warranty falling within the limitations and exceptions set forth in Section 13(d) below. Subject to the foregoing, with respect to any such Equipment subject to a claim under the warranty set forth in this Section 13(b), Supplier shall, in its sole discretion, either: (1) repair or replace such Equipment (or the defective part) or (ii) credit or refund the price of such Equipment at the pro rata contract rate provided that, if Supplier so requests, Purchaser shall, at Supplier’s expense, return such Equipment to Supplier. c. W ar ranties provided by each manufacturer or relating to specific items of Equipment are Attachment 1
Project Order Contract
601814311.4
as set forth in the Commercial & General Conditions attached as Exhibit 8. All such warranties shall be administered through Supplier’s main office, and Supplier agrees to replace, free of charge, during such period any part that fails by reason of a defect in materials or co nstruction. Any Equipment or part belonging to the Equipment but not manufactured by Supplier shall be covered by a warranty limited to the extent of the warranty provided by the manufacturer(s) thereof, on a “pass-through” or assignment basis (the “Manufacturers’ Warranties”). The supply, delivery, installation, and commissioning of the Sparta Equipment shall be covered by the warranty provided by Sub-Vendor(s) attached as Exhibit 8(A) on a “pass-through” or assignment basis. Equipment replaced under the warranties in this Section 13(c) shall be subject to the same warranty terms and shall not extend the warranty of the original Equipment.
Costs of transport and installation of replaced parts are not covered by this warranty. Supplier shall not be liable for any breach of this warranty falling within the limitations and exceptions set forth in Section 13(d) below. Supplier shall assign the Manufacturers’ Warranties and Sub -Vendors’ Warranties to Purchaser and Purchaser shall look directly to such Manufacturers and Sub-Vendor for warranty service and Seller shall have no obligations with respect to such Manufacturers’ Warranties or Sub-Vendors’ Warranties except to facilitate their assignment to Purchaser. d. No warranty under Section 13(b) or 13(c) above is provided with regard to any: (i) parts or materials consumed by the Equipment, such as grease, silicon, Teflon or other coatings, Teflon dye, gasket, knife, etc.; (ii) defects not brought to Supplier's attention during the applicable warranty period; (iii) defects or damage arising from by faulty application or by departure from the advice, standards and recommendations contained in the applicable operating and maintenance manual; (iv) damage related to abuse, improper installation or maintenance, or abnormal conditions of temperature, humidity, dirt, corrosion, etc.; (v) defects due to operation, intentional or otherwise, in excess of the established capacities or in any other inappropriate manner; (vi) any Equipment modified by any party other than an authorized representative of Supplier; (vii) any Equipment damaged through no fault of Supplier; or (viii) any Equipment which Purchaser continues to use despite a known defect, damage, or malfunction following a warranty claim. In addition, Supplier may not be held liable for any costs incurred by the Purchaser in connection with an attempt to repair any supposedly defective Equipment. Supplier does not warrant, by any means and under any circumstances, that the Equipment will meet any minimum performance or other standards expected by the Purchaser. However, if a clause entitled "minimum warranty of performance" is present in an Exhibit, duly accepted in writing by both parties, then the laid out minimum performance will be subject to a warranty by Supplier. e. THE REMEDIES SET FORTH IN SECTIONS 13(b) AND 13(c) ARE PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND SUPPLIER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 13(b) AND 13(c). EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 13(b) AND 13(c), ALL EQUIPMENT AND SERVICES ARE SOLD “AS IS” AND SUPPLIER DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTIES
WHATSOEVER WITH RESPECT TO THE EQUIPMENT AND SERVICES, INCLUDING ANY
WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR
NONINFRINGEMENT, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
f. P URCHASER AGREES AND ACKNOWLEDGES THAT IT IS SKILLED AND
EXPERIENCED IN THE REQUIREMENTS OF EQUIPMENT OF THE TYPE DESCRIBED IN THIS
AGREEMENT AND HAS MADE ITS SELECTION AND DECISION TO ORDER THE EQUIPMENT DESCRIBED HEREIN ON THE BASIS OF ITS OWN JUDGMENT. PURCHASER FURTHER AGREES
AND ACKNOWLEDGES THAT SUPPLIER IS NOT, IN ANY MANNER, PROVIDING PROFESSIONAL ENGINEERING OR ARCHITECTURAL SERVICES TO PURCHASER. NONE OF THE ADVICE,
GUIDANCE OR ANY SERVICES PROVIDED BY SUPPLIER WILL BE DEEMED PROFESSIONAL ENGINEERING, ARCHITECTURAL, OR BUSINESS ADVICE. PURCHASER IS SOLELY RESPONSIBLE FOR PROCURING SUCH ADVICE FROM REPUTABLE SOURCES. ADDITIONALLY,
SHOULD PURCHASER PROCURE ANY SUCH ENGINEERING, ARCHITECTURAL, OR BUSINESS
ADVICE FROM A SUB- VENDOR OR MANUFACTURER OF ANY OF THE EQUIPMENT OR
INSTALLATION SERVICES, SUCH ADVICE IS APART FROM THIS AG REEMENT AND SUPPLIER Attachment 1
Project Order Contract
601814311.4
SHALL NOT BE RESPONSIBLE FOR SUCH ADVICE, NOR WILL IT CREATE ANY LIABILITY FOR SUPPLIER.
SECTION 14. PURCHASER’S RESPONSIBILITY
a. Purchaser shall only use and operate the Equipment in a careful and safe manner, in accordance with the advice, standards and recommendations contained in the applicable operating materials, which the Purchaser acknowledges it has received, read, and understood. Purchaser recognizes that operation of the Equipment entails inherent risks of which Supplier has advised Purchaser and that Supplier has provided instructions for eliminating and/or reducing these risks.
Purchaser is solely and exclusively responsible for all risk, loss, liability, and damages arising out of or relating to Purchaser’s use or storage of the Equipment. Purchaser shall, at its sole expense, indemnify, defend, and hold harmless Supplier and its affiliates, and its and their respective employees, agents, directors, officers, and representatives from and against any and all losses, damages, liabilities, costs, and expenses (including attorneys’ fees and all expenses of litigation) incurred in connection with any judicial or non-judicial claim, action, demand, suit, or proceeding (collectively, “Claims”) against any of them insofar as such Claim arises from or relates to Purchaser’s or any third party’s use or storage, negligent or otherwise, of the Equipment.
b. Purchaser shall ensure that its procurement, possession, and use of the Equipment complies with all federal, state, local, municipal and provincial statutes, standards, codes, ordinances, rules, regulations, and promulgations and Purchaser expressly recognizes that Supplier has no knowledge and makes no advice or representation regarding any such regulations to which Purchaser may be subject. Similarly, Purchaser recognizes that Supplier has no particular knowledge of the specific climatic, soil, or building conditions of the location where the Equipment will be installed. Further, in the event that the Equipment sold to the Purchaser is not in compliance or not appropriate with regard to the above-mentioned conditions, Supplier shall in no way be required to modify or replace the machinery or equipment or any of its components and the Purchaser expressly acknowledges its sole liability in such regard. Purchaser shall obtain, at its sole cost and expense, all necessary permits, licenses, and easements for permanent structures or permanent changes in existing facilities or the operation of the Equipment.
SECTION 15. LIMITATION OF LIABILITY
IN NO EVENT SHALL SUPPLIER BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS,
FINES OR PENALTIES, COSTS OF PROCUREMENT OF SUBSTITUTE SERVICES OR EQUIPMENT,
INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY KIND, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY OR THE BASIS
ON WHICH ANY CLAIM FOR DAMAGES IS BROUGHT, INCLUDING, BUT NOT LIMITED TO, BREACH
OF CONTRACT, TORT OR STATUTE, EVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SUPPLIER’S LIABILITY TO PURCHASER
UNDER OR IN RESPECT OF THIS AGREEMENT EXCEED THE EQUIVALENT OF THE FEES
ACTUALLY PAID FOR THE EQUIPMENT OR SERVICES GIVING RISE TO SUCH LIABILITY , PROVIDED, HOWEVER, THAT SUPPLIER’S LIABILITY TO PURCHASER WITH RESPECT TO SUB- VENDOR EQUIPMENT AND SERVICES WILL IN NO EVENT EXCEED SUPPLIER’S RECOVERY FROM SUB-VENDORS ON ACCOUNT OF THE SUB-VENDORS’ EQUIPMENT AND SERVICES. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 15 WILL NOT APPLY AS TO ANY DAMAGES OR OTHER LIABILITY RESULTING FROM BREACHES OF SECTION 10 (CONFIDENTIALITY), VIOLATION OF SUPPLIER’S RIGHTS IN ITS TECHNOLOGY, OR A PARTY’S INDEMNIFICATION OBLIGATIONS.
SECTION 16 . NOTICE
All notices, reports, consents, authorizations, and approvals to be given by a party under this Agreement will be in writing and will either be via: (1) hand-delivery; (2) Federal Express (or a comparable overnight mail service); or (3) certified mail, return receipt requested, to the other party at its respective addresses or telephone/fax number set forth above. All notices will be effective upon receipt (or when delivery is Attachment 1
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refused) or 3 business days after being deposited in the mail as required above, whichever occurs sooner. Any party may change its address for notice by giving written notice of the new address to the other party.
SECTION 17. GOVERNING LAW AND VENUE
This Agreement will be governed by and interpreted in accordance with the laws of the State of Colorado, without regard to its choice of law provisions. Each party hereto: (a) consents to and waives any objections to personal jurisdiction, service of process, and venue in the federal and state courts located in Denver, Colorado; and (b) agrees that any claim, suit, or proceeding arising out of or relating to this Agreement will be filed and prosecuted only in such courts. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement, and the parties hereby disclaim the application thereof.
SECTION 18. FORCE MAJEURE
Supplier shall not be liable or responsible to Purchaser, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Supplier including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, new or known epidemic or pandemic, lockouts, strikes or other labor disputes (whether or not relating to any party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
SECTION 19. FURTHER ACTS
At any time or from time to time on and after the date of this Agreement, either party shall, at the request of the other party: (a) deliver to the requesting party any records, data or other documents consistent with the provisions of this Agreement; (b) execute, and deliver or cause to be delivered, all such consents, documents or further instruments of transfer necessary to effectuate or perfect a party’s rights granted or otherwise described in this Agreement; and (c) take or cause to be taken all such actions as the requesting party may reasonably deem necessary or desirable in order for the requesting party to obtain the full benefits of this Agreement and the transactions contemplated hereby.
SECTION 20. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Electronic counterpart signatures to this Agreement shall be acceptable and binding.
SECTION 21. ASSIGNMENT
No party may assign this Agreement or any right, interest or benefit under this Agreement without the prior written consent of the other party; provided, however, Supplier may assign this Agreement to a successor who acquires substantially all of its assets or equity through purchase, merger or other transaction without the Purchaser’s consent. Any purported assignment in breach of the foregoing will be null and void. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties hereto and their respective successors and permitted assigns, and nothing in this Agreement confers upon any other person or entity any legal or equitable right whatsoever to enforce any provision of this Agreement.
SECTION 22 . MISCELLANEOUS
Purchaser shall cooperate in good faith with Supplier in all matters relating to Supplier’s provision of the Equipment and Services hereunder and shall respond promptly to any Supplier request to provide direction, information, approvals, authorizations, materials or decisions that are reasonably necessary for Supplier to perform the Services or provide the Equipment in accordance with the requirements of Attachment 1
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this Agreement. Purchaser agrees to ensure that materials or information provided to Supplier are complete and accurate in all material respects. Except as expressly set forth in this Agreement, this Agreement may be amended or modified only by a writing signed by both parties. All waivers by any party under this Agreement must be in writing or later acknowledged by such party in writing. Any waiver or failure by a party to enforce any provision of this Agreement on one occasion will not be deemed a waiver by such party of any other provision or of such provision on any other occasion. If any provision of this Agreement is held to be unenforceable, that provision will be removed to the extent necessary to comply with the law, replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the law, and the remaining provisions will remain in full force. In interpreting and construing this Agreement, "including," "include," "includes" and variations thereof will be construed as if followed by the phrase "without limitation.” The parties hereto are independent contractors, not agents, employees, or employers of the other or joint venturers, and neither acquires hereunder any right or ability to bind or enter into any obligation on behalf of the other.
No term of this Agreement will be construed to confer any third-party beneficiary rights on any non- party.
(SIGNATURES APPEAR ON THE FOLLOWING PAGE)
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by an authorized representative as of the last date written below.
PURCHASER: SUPPLIER:
City of Sunnyvale / SMaRT Facility M-L Environmental LLC, t/a Komptech Americas LLC
By: By:
Name: Name:
Title: Title:
Date: Date:
Attachment 1