EQUIPMENT PURCHASE AND SERVICE AGREEMENT
THIS EQUIPMENT PURCHASE AND SERVICE AGREEMENT is between Woodard & Curran, Inc. (“Buyer”) and Zenon Environmental Corporation, and its parent company, SUEZ Water Technologies & Solutions (collectively, “Seller”). Buyer and Seller, in consideration of the mutual covenants set forth herein, agree as follows:
ARTICLE 1 - THE PROJECT
1.01 Goods and Special Services. Seller shall furnish the Goods and Special Services (also described herein as the “Work”) as specified and indicated herein. The Goods and Special Services to be furnished by Seller are described as follows:
Wastewater membrane replacement of two full systems and long -term support services as specified in Seller’s Proposal, which is attached hereto and i ncorporated herein by reference as if fully set forth, and subject to the requirements set forth in Buyer’s Request for Proposal.
1.02 The Project and Point of Destination. The Project for which the Goods and Special Services to be provided under the Contract Documents may be the whole or only a part is generally described as the following:
City of Victorville S outhern California Logistics Airport MBR Wastewater Treatment Plant (the “Point of Destination”).
1.03 Contract Times. The Goods must be delivered and Special Services must be furnished as follows:
The Goods are to be delivered to the Point of Destination: 20080 Helendale Road, Victorville, CA 92394. Special Services are to be performed at the Point of Destination.
ARTICLE 2 – DEFINITIONS AND TERMINOLOGY
2.01 Defined Terms.
A. Whenever used in the Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to the singular or plural thereof. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms.
1. Agreement--This written instrument that is signed b y both Buyer and Seller covering the Goods and Special Services and which lists the Contract Documents in existence on the Effective Date of the Agreement.
2. Application for Payment --The form acceptable to Buyer which is used by Seller in requesting progr ess and final payments and which is accompanied by such supporting documentation as is required by the Contract Documents.
3. Buyer-- Woodard & Curran, Inc. is the Buyer under the Contract Documents.
4. Change Order--A document which is signed by Seller and Buyer and authorizes an addition, deletion, or revision to the C ontract Documents or an adjustment in the Contract Price or the Contract Times, i ssued on or after the Effective Date of the Agreement.
5. Claim--A written demand or assertion by Buyer or Seller seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms of the Contract.
6. Contract--The entire and integrated written agreement between Buyer and Seller concerning the Goods and Special Services. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral.
7. Contract Documents-- Those items listed in the Agreement. Files in electronic media format of text, data, graphics, and the like are not Contract Documents, and may not be relied on by Seller. Approved Shop Drawings and other Seller’s submittals are not Contract Documents. The terms and condit ions of this Agreement shall not in any way be changed, limited, controlled, or restricted by any oral stat ement or the provision of the Seller’s proposals, forms, letters, or papers that are inconsistent herewith, unless specifically authorized in writing by Buyer. In addition, to the extent that Seller’s proposal is attached or incorporated in this Agreement it is only for the purpose to further define the Work and any of Sel ler’s own terms and conditions are hereby expressly excluded from this Agreement and are not Contract Documents.
8. Contract Price-- The moneys payable by Buyer to Seller for furnishing the Goods and Special Services in accordance with the Contract Documents as stated in the Agreement.
9. Contract Times--The times stated in the Agreem ent by which the Goods must be delivered and Special Services must be furnished.
10. Drawings--That part of the Contract Documents approved by Buyer which graphically shows the scope, intent, and character of the Goods and Special Services to be furnished by Seller.
11. Effective Date of the Agreement--The date on which the Agreement is signed and delivered by the Buyer.
12. Field Order--A written order issued by Buyer which re quires minor changes in the Goods or Special Services but which does not involve a change in the Contract Price or Contract Times.
13. Goods--The tangible and movable personal property t hat is described in the Contract Documents, regardless of whether the property is to be later attached to realty.
14. Laws and Regulations; Laws or R egulations--Any and all applicable law s, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction.
15. Legal Claim -- includes any notice of claim, notice of commencement of legal proceeding, cause of action, damage, loss, lien, liability, judgment, cost or expense (including, wi thout limitation, attorneys' fees and costs, expert witness fees and costs and other litigation, mediation, arbitration or judicial reference expenses), of every kind or nature, whether based on tort, contract, or equitable principles, in any way arising f rom or in any way connected with the performance or nonperformance o f this Contract by Seller or its employees, agents, officers, directors, sharehol ders, representatives, affiliates, independent contractors, suppliers, anyone employed, retained or engaged in any capacity, directly or indirectly, by any of them or for whose acts they may be liable, and its and their successors or assigns.
16. Milestone--A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to the Contract Times.
17. Notice to Proceed -- A purchase o rder issued by Buyer to Seller on which date of issuance the Contract Times commence to run and on which Seller shall start to perform under the Contract.
18. Owner-- The individual or e ntity with whom the Buyer has entered into an agreement to procure t he Goods and Special Services and is the City of Victorville, California.
19. Project--The total undertaking of which the Goods and Special Services to be provided under the Contract are a part.
20. Project Manual--The bound documentary information prepared for bidding and furnishing the Goods and Special Services. A listing of the contents of the Project Manual, which may be bound in one or more volumes, is contained in the table(s) of contents.
21. Proposal- The Seller’s proposal, which is attached hereto as an exhibit to this Agreement.
22. Samples--Physical examples of materials, equipment, or workmanship that are repr esentative of some portion of the Goods and which establish the standards by which such portion of the Goods or Special Services will be judged.
23. Seller--The person furnishing the Goods and Special Services as defined above.
24. Shop Drawings--All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Seller and submitted by Seller to illustrate some portion of the Goods or Special Services.
25. Special Services--Services associated with the Goods to be furnished by Seller as required by the Contract Documents.
26. Specifications--That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards and workmanship as applied to the furnishing of the Goods and Special Services, and certain administrative details applicable thereto.
27. Written Amendment--A written statement modifying the Contract Documents, signed by Buyer and Seller on or after the Effective Date of the Agreement and normall y dealing with the administrative aspects of th e Contract Documents.
ARTICLE 3 - PRELIMINARY MATTERS
3.01 Notice to Proceed. The Contract Times will commence to run upon issuance of the Notice to Proceed by Buyer.
3.02 Designated Representatives. Buyer and Seller shall each designate its representative at the time the Agreement is signed. Each representative shall have full authority to act on behalf of and make bindi ng decisions in any matter arising out of or relating to the Contract.
3.03 Seller’s Review of Contract Documents. Before commencing performance of the Contract, Seller shall carefully study and compare the Contract Documents and check and verify pertinen t requirements therein and, if specified, all applicable field measurements. Sell er shall promptly report in writing to Buyer any conflict, error, ambiguity or discrepancy which Seller may discover and shall obtain a written interpretation or clarification from Buyer before proceeding with any work affected thereby.
3.04 Progress Schedule. Seller shall submit to Buyer an acceptab le progress schedule of activities, including at a minimum, Shop Drawing and Sample submittals, tests, and deliveries as require d by the Contract Doc uments.
No progress payment will be made to Seller until an acceptable schedule is submitted to Buyer.
3.05 Contract Times. The Seller shall submit to the Buyer a schedule in the Agreement or Contract Documents that specifies the t imes, in duration or specific dates, by which the Goods must be delivered and Special Services must be furnished. This schedule may also include, but will not be limited to, the following:
1. All dates or duration time limits for Milestones, if any, for the delivery of Goods and the furnishing of Special Services as stated in the Contract Documents.
2. Dates or duration time limits from commencement of the Contract Times for Submittal of Shop Drawings and samples by the Seller as required by the Contract Documents.
3. Duration time limits allowed by Seller for the prompt resubmittal to the Buyer of Shop Drawings or Samples reviewed and returned by the Buyer.
4. Dates or duration time limits for d elivery of Goods to the Point of Destination and ready for Buy er’s receipt of delivery.
5. Dates or duration time limits for commencing, furnis hing, and completing Special Services to the Buyer following Buyer’s receipt of delivery of the Goods.
ARTICLE 4 - SCHEDULE
4.01 Time of the Essence . All time limits f or Milestones, if any, t he delivery of Goods and the furnishing of Special Services as stated in the Contract Documents are of the essence to the Contract.
4.02 [Intentionally Omitted.]
ARTICLE 5 - CONTRACT DOCUMENTS: INTENT AND AMENDING
5.01 Contract Documents. The Contract Documents comprise the following:
1. This Agreement (pages 1 to 18, inclusive);
2. Exhibit A: [The Seller’s Proposal dated April 6, 2022.];
3. The following which may be delivered or issued on or aft er the Effective Date of the Agreement and are not attached hereto:
a. Notice to Proceed;
b. Written Amendment(s);
c. Change Order(s); and
d. Field Order(s).
B. Any labor, documentation, service s, materials, or equip ment that may reasonabl y be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce t he intended result will be provided, whether or not specifically called for, at no additional cost to Buyer.
5.02 Laws and Regulations, Standards, Specifications and Codes
A. Reference to standards, specifications, manuals, or codes of any technical society, organiza tion, or association, or to L aws and Regulations, whether such reference be specif ic or by implication, shall mean the standard, specification, manual, code, or Laws and Regula tions in effect on the Effective Date of the Agreement, except as may be otherwise specifically stated in the Contract Documents.
B. No provision of any such st andard, specification, manual or code, or any instruction of a supplier shall be effective to change the duties or responsibilities of Buyer, or any of its subcontractors, consultants, agents, or employees from those set forth in the Contract Documents, nor shall any such provision or instruction be effective to assign to Buyer, or any of its consultants, agents, or employees any duty or author ity to supervise or direct the performance of Seller’s obligat ions or any duty or authority to undertake responsibil ity inconsistent with the provisions of the Contract Documents.
5.03 Reporting and Resolving Discrepancies
A. Reporting Discrepancies: If, during the per formance of the Contract, Seller discovers an y conflict, error, ambiguity, or discrepancy within the Contract Documents or between the Contract Documents and any provision of any Law or Regulation applicable to the performance of the Contract or of any sta ndard, specification, manual or code, or of a ny instruction of any supplier, Seller shall promptly report it to Buyer in writing. Seller shall not proceed with the furnish ing of the Goods or Special Services affected thereby until an amendment to or clarification of the Contract Documents has been i ssued. Seller shall not be liable to Buyer for failu re to report any such conflict, error, ambiguity, or discrepancy unless Seller knew or reasonably should have known thereof.
B. Resolving Discrepancies: Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, a mbiguity, or discrepancy between the provisions of the Contract Documents and:
1. the provisions of any standard, specification, manual, code, or instruction (whether or not specifi cally incorporated by reference in the Contract Documents);
2. the provisions of any Laws or Regulations applicable to the furnishing of the Goods and Specia l Services (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation); or
3. the Proposal.
ARTICLE 6 - INSURANCE
6.01 Insurance
A. Seller shall purchase and maintain such liability and other insurance as is appropriate for the furnishing of Goods and Special Services and as wil l provide protection from claims set forth be low which may arise out of or result from Seller’s furnishing of the Goods or Special Services and Seller’s other obligations under the Contract Documents, whether the furnishing of Goods or Special Services, or other obligations are to be performed by Seller, any subcontractor or suppli er, or by anyone directly or indirectly employed by any of them to furnish the Goods or Special Services, or by anyone for whose acts any of them may be liable:
1. claims under workers’ compensation, disability benefits, and other similar employee benefit acts;
2. claims for damages because of bodily injury, occupational sickness or disease, or death of Seller’s employees;
3. claims for damages because of bodily injury, sickness or disease, or death of any person other tha n Seller’s employees;
4. claims for damages insured by reasonably available personal injury liability coverage which are sustained: (i) by any person as a result of an offense directly or indirectly related to t he employment of such person by Seller, or (ii) by any other person for any other reason;
5. claims for damages, other than to the Goods, because of injury to or destruction of tangible property of third-parties ; and
6. claims for damages be cause of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle.
B. The policies of insurance so required by this Paragraph to be purchased and maintained shall:
1. include as additi onal insureds Woodard & Curran , the City of Victorville, th e City of Victorville Redevelopment Agency, the Southern California Logistics Airport Authority and each of their respective officers, directors, members, par tners, servants, attorneys, employees, agents, and other consultants and subcontractors, all of whom shall be listed as additional insureds but only in respect of work performed by or on behalf of the named insured, Seller. Coverage under Seller's policy does not extend to liability arising out of the additional insured's sole negligence. The insurance afforded to these additional insureds shall provi de primary coverage for all claims covered thereby, and as loss payees;
2. include at least the specific coverages and be written for the limits of liability provided below;
3. include on-going operations, products-completed operations hazard and completed operations insurance (including to the additional insureds listed herein);
4. include contractual liability insurance covering all of Seller’s indemnity obligations set forth herein;
5. contain a provision or e ndorsement that the coverag e afforded will not be canceled, terminated, materially changed or renewal re fused until at least ninety (90) days and ten (10) days for non- payment prior written notice has been given to Buyer and Seller and to each other additi onal insured identified in this Article and/or to whom a ce rtificate of insurance ha s been issued (and t he certificates of insurance furnished by the Seller pursuant to this Agreement will so provide);
6. remain in effect at least until final payment and a t all times thereafter when Seller may be correcting, removing, or replacing non-conforming Goods in accordance with the warranty required in the Agreement;
7. with respect to compl eted operations insurance, and any insurance coverage written on a claims- made basis, remain in effect for at least two years after final payment; and
8. contain provisions that in the event of payment of any loss or damage the insurers will have no rights of recovery against any of the additional insureds or loss payees but onl y to the extent that the Bu yer is an additional insured or loss payee.
C. Seller shall provide the following insurance coverages provid ing coverage for the following amounts or greater where required by Laws and Regulations:
1. Workers’ Compensation, and related coverages:
a. State: Statutory
b. Applicable Federal
(e.g., Longshoreman’s): Statutory
c. Employer’s Liability: $1,000,000
2. Seller’s General Liab ility which shall include contractual liability, completed operations and product liability coverages and eliminate the exclusion with resp ect to property under the care, custody and control of Seller:
a. General Aggregate: $5,000,000
b. Products - Completed
Operations Aggregate: $5,000,000
c. Personal and Advertising
Injury: $5,000,000
d. Each Occurrence
(Bodily Injury and Property Damage): $5,000,000
e. Property Damage liability insurance, will
provide XCU coverages $5,000,000
3. Automobile Liability:
c. Combined Single Limit of: $5,000,000
4. Pollution Liability Insurance in an amount of Five Million Dollars ($5,000,000) per occurrence and Five Million Dollars ($5,000,000) in the aggregate, including coverage for damages or claims expense due to the discharge, dispersal, release or escape of asbestos, asbestos containing materials, contaminants or pollutants on site, offsite, or airborne.
D. Prior to commencement of any work under this Agreement, Seller shall deliver to Buyer, with copies to each additional insured listed herein certificates of insurance which Seller is required to purchase and maintain.
Buyer reserves t he right to require Seller to provide endorsements, at a ny time during this Agreement or any extensions thereof.
ARTICLE 7 - SELLER’S REPRESENTATIONS AND RESPONSIBILITIES
7.01 Seller’s Representations. In order to induce Buyer to enter into this Agreement, Seller makes the followin g representations:
A. Seller has examined and carefully studied the Contract Documents and the other related data.
B. If specified or if, in Seller’s judgment, any local condition may affect cost, progress or the furnishing of the Goods and Special Serv ices, Seller has visited th e Point of Destination and become familiar wi th and is satisfied as to the local conditions that may affect cost, progress or the furnishing of the Goods and Special Services.
C. Seller is familiar with and is satisfied as to al l local federal, state and local Laws and Regulations that may affect cost, progress and the furnishing of the Goods and Special Services.
D. Seller has carefully studied and correlated the information known to Seller, and information and observations obtained from Seller’s visits, if any, to the Point of Destination, with the Contract Documents.
E. Seller has given Buyer written notice of all conflicts, errors, ambiguities, or discrepa ncies that Seller has discovered in the Contract Documents, and the written resolution is acceptable to Seller.
F. The Contract Documents ar e generally sufficient to indic ate and convey understanding of all terms and conditions for furnishing Goods and Special Services.
7.02 Supervision and Superintendence . Seller shall be solely responsible for t he means, methods, techniques, sequences, and procedures used in performing its obligations. Seller shall be responsible to see that the completed Goods and Special Services conform to the Contract Documents.
7.03 Labor, Materi als and Equipment . Seller shall provide competent, qualified and traine d personnel in all aspects of i ts performance of the Contr act. All equipment, pro ducts and material incorporated i nto the Goods shall be as specified, or if not specified, shall be ne w, of good quality and prot ected, assembled, used, connected, applied, cleaned and conditioned in accordance with the original manufacturer’s instructions, except as otherwise may be provided in the Contract Documents.
7.04 Compliance with Laws and Regulations, Standards, Specifications and Codes. Seller shall comply with all Laws and Regulations applicable to the furnishing of the Goods and Special Services. All permits, authorizations, and licenses which are required to construct, install and/or oper ate Buyer’s facility or equ ipment, to use the equipment, or to manage and dispose of any wastes, disch arges, and residues resultin g from Buyer’s use of th e equipment, shall be obtained and maintained by Buyer at Buyer’s sole expense. Buyer is responsible f or compliance with all laws and regulations applicable to the storage, use, handling, installation, m aintenance, removal, registration, and labelling of a ll equipment after delivery of the equipment, as well as for the proper management and disposal of all wastes, discharges, and residues.
7.05 Or Equals
A. Whenever an item of material or equipment t o be incorporated into the Goods is sp ecified or descri bed in the Con tract Docu ments by using the name of a propri etary item or the name of a particular supp lier or manufacturer, the specification or description is inten ded to es tablish the type, func tion, appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or “or-equal” item is permitted, other it ems of material or equipment or material or e quipment of other suppliers or manufacturers may be submitted to Buyer for review.
1. If in Buyer ’s sole discre tion, such an ite m of material or equipment proposed by Seller is functio nally equal to that named a nd sufficiently similar so that no change in related work will be requir ed, it may be considered by Buyer as an “or-equal” item.
2. For the purposes of this pa ragraph, a proposed item of material or equipment may be considered functionally equal to an item so named if:
a. in the exercise of reason able judgment, Buyer determines that: 1) it is at least e qual in quality, durability, appearance, strength, and design characteristics; and 2) it will reliably perform at least equally well the function imposed by the design concept of the completed Project as a functioning whole; and b. Seller certifies that: 1) there is no increase in any cost including capital, installation or operating to Buyer; and 2) the proposed item will conform substantially, even with deviations, to the detailed requirements of the item named in the Contract Documents.
B. Buyer’s Evaluation: Buyer will be allowed a reasonable time withi n which to evaluate each proposal or submittal made. Buyer will be the sole judge of a cceptability. No “or -equal” will be or dered, manufactured or utilized until Buyer’s review is complete, which wil l be evidenced by an approved Shop Drawing. Buyer will advise Seller in writing of any negative determination. Notwithstandi ng Buyer’s approval of an “or-equal” item, Seller shall remain obligated to comply with the requirements of the Contract Documents.
C. Special Guarantee: Buyer may require Seller to furnish at Seller’s expense a special performance guarantee or other surety with respect to any such proposed “or-equal.”
D. Data: Seller shall provide all data in support of any such proposed “or-equal” at Seller’s expense.
7.06 Duties. Seller shall b e responsible for all duties arising out of the sale of the Goods and the furnishing of Special Services.
7.07 Shop Drawings and Samples.
A. Seller shall submit Shop Drawings and Samples to Buyer for review and appro val in accordance with the schedule required in this Agreement. All submittals will be identified as r equired and furnished in th e number of printed copies specified in the C ontract Documents. Seller shall provide all submittals in electronic format if requested by the Buyer. The data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified perform ance and design criteria, materials, and si milar data to show Buyer the services, materials, and equipment Seller proposes to provide.
B. Where a Shop Drawing or Sample is required by the Contract Documents, any related work performed prior to Buyer’s approval of the pertinent submittal will be at the sole expense and responsibility of Seller.
C. Submittal Procedures
1. Before submitting each Shop Drawing or Sample, Seller shall have determined and verified:
a. all field measurements (if required), quantities, dimensions, specified performanc e criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; and
b. that all materials are suitable with respect to intended use, fabrication, shipping, handl ing, storage, assembly, and installation pertaining to the furnishing of Goods and Special Services.
2. Seller shall also have reviewed and coordinated each Shop Drawing or Sample with the Contract Documents.
3. Each submitta l shall include a written c ertification from Seller that Seller has reviewed the subject submittal and confirmed that it is in compliance with the require ments of the Contract Documents. Buyer shall be entitled to rely on such certification from Seller.
4. With each submittal, Sel ler shall give Buyer specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This n otice shall be both in a written communication separate from the submittal and by specific notation on each Shop Drawing or Sample.
D. Buyer’s Review
1. Buyer will provide timely review of Shop Drawings and Samples.
2. Buyer’s approval of Shop Drawin gs or Samples will be subject to the standard s set forth in this Agreement. Buyer’s approval will not relieve Seller from responsibility for any variation from the requirements of the Contract Docum ents unless Seller has i n writing called Buyer ’s attention to each such variation at the time of each submittal as required in this Agreement and Buyer has given written approval of each such variation by specific written not ation thereof incorporated in o r accompanying the Shop Drawing or Sample approval.
E. Resubmittal Procedures
1. Seller shall make corrections required by Buyer and shall return the required number of corrected copies of Shop D rawings and submit as requi red new Samples for review and approval. Seller shall direct specific attention in writing to any revisions other than the corrections called for by Buyer on previous submittals.
7.08 Continuing Performance. Seller shall adhere to the progress schedule established herein, and the Goods shall be delivered and the Special Services furnished within the Contract Times specified in the Agreement. Seller shall carry on the work and adhere t o the progress schedule during all disputes o r disagreements with Buyer. No work shall be delayed or postponed pending resolution of any disputes or disagreements.
7.09 Seller’s Warranties and Guarantees
A. Seller warrants and guarantees to Buyer that t he title to the Goods conveyed shall be prope r, its transfer rightful, and free from any security interest, lien, or other encumbrance.
B. Seller warrants and guarantees to Buyer that all Goods and Special Services will confor m with the Contract Documents, including any Samples approved by Buyer , and the Goods will be new, of good quality unless otherwise specified, free from faults and defects, and in conform ance with the Contract Documents. All warrantees, rebates and guaran tees shall expressly run to the benefit of the Owner and Buyer. Buyer shall be entitled to rely on representation of Seller’s warranty and guarantee.
C. Seller’s warranty and guarantee hereunder excludes defects or damage caused by:
1. abuse, improper modification or improper maintenance or operation by persons other than Seller, or
2. normal wear and tear under normal usage.
D. Seller’s obligation to furnish the Goods and Special Services in accordance with the Contract D ocuments shall be absolute. None of the following will constitute an acceptance of Goods or Special S ervices that are non- conforming, or a release of Seller’ s obligation to furnish the Goods and Special Services in accordance with the Contract Documents: (1) observations by Buyer; (2) payment by Buyer of any progress or final payment; (3) use of the Goods by Buyer; (4) any acceptance by Buyer (subject to the provisions of Article 10) or any failure to do so; (5) the issuance of a notice of acceptance by Buyer pursuant to the provisions of Article 10; (6) any inspection, test or approval by others; or (7) any correction of non-conforming Goods or Special Services by Buyer.
E. Seller’s Performance Warranty. In addition to the foregoing warranty, Seller shall also provide the standard and performance-based warranties/guarantees as set forth in Buyer’s Request for Proposal and Seller’s Proposal.
F. Buyer shall within a reasonable time notify Seller of any breach of Seller’s warranties or guarantees. If Buyer receives notice of a suit or claim as a result of such br each, Buyer also may give Seller notice in writing to defend such suit or claim. If Seller fail s to defend such suit or claim, Seller will be bound in any subsequent suit or claim against Seller by Buyer by any factual determination in the prior suit.. Buyer shall make maintenance and operation records available to the Seller upon request during the warranty period. With respect to the provision of Services, Buyer’s remed y shall be either a request to perform or reperform Services and repayment of costs incurred due to Seller’s breach under this Agreement.
G. Seller makes no implied warranties un der this Contract. Other than the Owner, Buyer is not entitl ed to extend or transfer this warranty to any other party.
7.10 Indemnification. T o the fullest extent permitted by Laws and Regulations, Seller shall indemnify , defend, and hold harmless Buy er, Owner, and their respective officers, directo rs, members, shareholders, managers, partners, employees, representatives, agents, affiliates, insurers, successors and assigns from any and all Legal Claims for physical damage to third party property (including the City of Victorville) or injury to perso ns, including death, which may arise out of the negligence or willful misconduct of Seller, or its o fficers, directors, shareholders, partners, employees, agents, consultants, contractors or subcontractors, or anyone for whom Seller is responsible. The p rovisions of this Parag raph will survive the expiration or terminati on of this Contract. The indemnification obligation hereunder shall not be limited in any way by any limitation on the amount o r type of damages, compensation, or benefits payable by or f or Seller or any suppli er under workers' or workman's compensation acts, disability benefit acts, other employee benefit acts or similar acts.
ARTICLE 8 - SHIPPING AND DELIVERY
8.01 Shipping. Seller shal l select the carrier and bear all costs of packag ing, transportation, insurance, special handling and any other costs associated with shipment and delivery. Buyer’s Purchase Order number shall appear on the outside of each package, packing slip, invoice a nd/or allied papers. A packing slip shall be incl uded with each shipment.
8.02 Delivery
A. Seller shall deliver the Goods F .O.B. the Point of De stination in accordance with the Contract T imes set forth in the Agreement . The place of delivery specified herein shall be firm and fixed, provided that Buye r may notify Seller no later than 45 days prior to the scheduled shi pment date of the e quipment of an alternate point of delivery. Provided the parties agree to a change order to take into account any additional cost or delay incurred by Seller in impleme nting this change, the a lternate place of delivery shall become the agreed pla ce of delivery for all purposes under the Contract.
If any part of the equipment cannot be delivered when ready due to any cause not attributable to Seller, Buyer shall designat e a suitable storage location, and Seller shall ship such e quipment to storage. Amounts payable to Seller upon delivery or shipment shall be paid by Buyer along with expenses
incurred by Seller. Se rvices provided herein shal l be charged at the rate prevailing at the ti me of actual use and Buyer shall pay any increase, and Buyer shall pay directly all costs for storage and subsequent transportation
B. Seller shall provide written notice to Buyer at least 15 days before shipment of the manner of shipment and the anticip ated delivery date. The notic e shall also include any instructions concerning special equipment or services required at the Point of Destination to unload and care for the Goods. Sel ler shall also require the carrier to give Buyer at least 24 hours’ notice by telephone prior to the anticipated hour of delivery.
C. Buyer will be responsible and bear all costs for unloading the Goods from carrier.
D. Buyer will assure that adequate facilities are available to receive delivery of the Goods during the Contract Times set forth in the Agreement, or another date agreed by Buyer and Seller.
E. No partial deliveries shall be allowed, unless permitted or required by the Contract Documents or agreed to in writing by Buyer.
8.03 Title and Risk of Loss . Title a nd Risk of loss and insurable interests transfer f rom Seller to Bu yer upon Buyer’s written receipt and acceptance of the Goods. Notwithstanding the foregoing, if Buyer rejects the Goods as non- conforming, the ri sk of loss on such Goods shall remain with Se ller until Seller corrects the non- conformity or Buyer accepts the Goods.
ARTICLE 9 - CHANGES: SCHEDULE AND DELAY
9.01 Changes in the Goods and Special Services. Buyer may at any time, without notice to any surety, make changes in the Contract Documents within the general scope of the Contract. If any such change or action by Buyer affects the Contract Price or Contract Times, Seller shall notify Buyer within 15 days after the occ urrence of the event giving rise thereto, and written supporting data wi ll be submitted to Buyer withi n 45 days after such occurrence. If Seller fails to do so, Seller waives any Claim for such adjustment. Seller shall not suspend performance while Buyer and Seller are in the process of making such changes and any related adjustments.
9.02 Changing Contract Price or Contract Times
A. The Contract Price or Contract Times may only be changed by: (1 ) a Change Order; (2) Written Amendment; or (3) a written unilateral order of Buyer , in which case Seller shall be entitled to an equitable adjustment in Cont ract Price or Contract Times for any reasonable and necessary costs or delays incurred by Seller to accommodate such a change.
B. Seller shall not be en titled to an increase in the Contract Price or an extension of the Cont ract Times with respect to any w ork performed that is not required by the Contract Documents. No course of conduct or dealing between the parties, or express or implied acceptance of a lterations or addition to t he work, and no claim that Buyer has been unj ustly enriched by an y alteration or addition to the w ork, whether or not there is in fact any unjust enrichment, shall be the basis for any claim to increase the Contract Price and/or the Contract Time.
C. Contract Times will not be modified for delays within the control of Seller, including labor strife, transportation shortages or delays at Seller’s facilit ies. Delays attribut able to and within the control of Seller’s subcontractors or suppliers shall be deemed to be delays within the control of Seller.
D. Neither party shall be liable or in breach or default of th eir obligations under this Agreement to the extent performance of such obligations is delayed or prevented by force majeure. Force majeure shall include, but not be limited to: acts of G od, unusually severe weather, fire, terrorism, war (declared or undec lared) epidemics (except for the COVID-19 pandemic, which is foreseeable), insurrection, act of any governmental authority; provided that the cause is beyond the contr ol and without fault or negl igence of the Party s eeking relief under this Section. In the event of any such force majeure, the Party unable to perform its responsibilities hereunder will notify the other Party within twenty-four (24) hours of such force majeure event and will be required to resume performance of its obligations under this Agreement upon cessation of the aforementioned force majeure . Every possible effort will
be made by the Seller to mainta in continued reuse water services at the facilities during the force majeure event, the facility being critical infrastructure.
ARTICLE 10 - BUYER’S RIGHTS
10.01 Inspections and Testing
A. General
1. Buyer shall have the right to perform, or cause to be performed, reasonable inspections and r equire reasonable tests of the Goods at Seller’s facilit y, and at the Point of Destination. Seller shall allow Buyer a reasonable time to perform such inspections or tests. If the Contract Documents or Laws or Regulations of any public body having jurisdiction require any of the Goods or Special Services to be inspected, tested or approved, Seller shall assume full responsibility for arranging and obtaini ng such inspections, tests or approvals, pay all costs in connection therewith, and furnish Buyer the required certificates of inspection or approval. Seller shall also be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for Buyer' s acceptance of Goods or Special Services. Se ller shall give Buyer re asonable notice of the planned s chedule for all required inspections , tests, or approvals. If any construction (or the construction work of others) that is required to be inspected, tes ted, or appr oved is covered by Seller without written concurrence of B uyer, then Seller shall, if requ ested by Buyer, uncover such construction for observation. Uncovering construction shall be at Seller's expense unless Seller has given Buyer timely notice of Seller's intention to cover the same and Buyer has not acted wit h reasonable promptness in response to such notice.
2. Seller shall bear all expenses, except for travel, lodging and subsistence expenses of Buyer’s representatives, for inspections and tests at Se ller’s facility, but Buyer shall be entitled to reimbursem ent from Seller of travel, lodging and subsistence expenses of Buyer’s representatives if the Goods are non-conforming.
3. Buyer s hall bear all expenses, except for travel, lodging and s ubsistence expenses of Seller’s representatives, for inspections and t ests at the Point of Destination , but Buyer shall be entitled to reimbursement from Seller for Buyer’s expenses for reinspection o r retesting if, on the basis of an initial inspection or testing, the Goods are determined to be non-conforming.
4. Seller shall provide Buyer 30 days’ written notice of the readiness of the Goo ds for all inspections, tests, or approvals which the Contract Documents specify are to be observed by Buyer prior to shipment.
5. Buyer will give Seller timely not ice of all specified tes ts, inspections and approvals of the Goods which are to be conducted at the Point of Destination.
6. If, on the basis of any inspe ctions or testing, the Goods appear to be conforming, Buyer will giv e Seller prompt notice thereof. I f on the basis of said i nspections or testing, the Goods appear to be non- conforming, Buyer will give Seller prompt notice thereof and will advise Seller of the remedy Buyer elects under the provisions of Paragraph 10.02.
7. Neither payments made by Buyer to Seller prior to any t ests or inspections, nor any tes ts or inspections shall constitute acceptance of non-conforming Goods, or prejudice Buyer’s rights under the Contract.
B. Inspection on Delivery
1. Buyer will insp ect the Goods upon delivery solely for purposes of identif ying the Goods and general verification of quantities and observation of apparent condition in order to provide a basis for a prog ress payment. Such inspection will not be construed as final or as receipt of any Goods and Special Services that, as a result of subsequent inspections and tests, are determined to be non-conforming.
2. Within ten days of such i nspection, Buyer shall pro vide Seller with written notice of Buyer’s determination regarding conformity of the Goods. In the event Buyer does not provi de such notice, it will be presumed that the Goods appear to be conforming.
3. If, on the basis of the inspection specified herein, the Goods appear to be conforming, Buyer’s notice thereof to Seller will acknowledge receipt of the Goods.
C. Final Inspection
1. After all of the Goods have been incorporated into the Project, tested in accordance with such testing requirements as are specified, and are functioning as intended, Buyer will make a final inspection.
2. If, on the basis of the final inspection, the Goods are conforming, Buye r’s notice thereof will constitute Buyer’s acceptance of the Goods.
3. If, on the basis of the fin al inspection, the Goods are non- conforming, Buyer will i dentify the non- conformity in writing.
10.02 Non-Conforming Goods or Special Services
A. If, on the basis of inspections and testing p rior to delivery, the Goods appear to be non- conforming, or if at any time after Buyer has acknowledged receipt of del ivery and be fore the expiration of the correct ion period described in Paragraph 10.03, Buyer determines that the Goods are non-conforming and/or a defect appears in the Goods, material, or workmanship incorporated in the Goods, Seller shall within five (5) days, without cost to Buyer, either correct by repairing such non -conforming Goods, or, if rejected b y Buyer, remove and replace the non-conforming Goods with conforming Goods, including all work required for reinstallation. Alternatively, Seller shall w ithin five ( 5) days have a plan to repair or r eplace the non- conforming Goods in a time period mutually agreed to with the Buyer at no charge to Buyer.
B. Buyer’s Rejection of Non-Conforming Goods
1. If Buyer elects to reject the Goods in whole or in part, Buyer’s notice to Seller will describe i n sufficient detail the non-conforming aspect of the Goods. If Goods have been delivered to Buyer, Seller shall promptly, and within five (5) days, remove and replace the rejected Goods.
2. Seller shall bear al l costs, losses and direct damages attributable to the removal and rep lacement of the non-conforming Goods as provided in Paragraph 10.02.E.
3. Upon rejection of the Goods, Buyer retains a security interest in the Goods or to the extent of any payments made and expenses incurred in their testing and inspection.
C. Remedying Non-Conforming Goods or Special Services
1. If Buyer elects to permit the Seller to modify the Goods to remove the non- conformance, Seller shall provide within five (5) days a schedul e for such modifications, subject to Buyer’s approval, and shall make the Goods conforming within the time frame approved by Buyer.
2. If Buyer notifies Seller in writing that any of the Special Servi ces are non-conforming, Seller shall within five (5) days provide conforming services acceptable to Bu yer within a schedule ap proved by Buyer. If Seller fails to do so, Buyer may delete the Special Services and reduce the Contract Price a commensurate amount.
D. Buyer’s Acceptance of Non-Conforming Goods. Instead of requiring correction or removal and replacement of non-conforming Goods discovered either before or after final payment, Buyer m ay accept the non-conforming Goods. Seller shall bear all cos ts, losses, and damages attributable to Buyer’s evaluati on of and determination to accept such non-conforming Goods.
E. Seller shall pay all claims, costs, losses, and direct damages, including but not limited to all fees and charges for re-inspection, retesting and for any engineers, architects, attorneys an d other professionals, and all court or arbitration or other dispute r esolution costs arising out of or relating to the non- conforming Goods or Special Services, including the correction or removal and replacement of the non-conforming Goods and the replacement of property of Buyer and others destroyed by the correction or removal and replacement of the non- conforming Goods, or the obtaining of conforming Special Services from others.
10.03 Correction Period. If a non -conformance or defect appears in th e Goods, the material or workmanship incorporated in the Goods, or resulting from completing Special Services related to start-up and acceptance within one (1) year after satisfactory start -up and acceptance, or for such longer period of time as may be prescribed by Laws or Regulations or b y the terms o f any specific provisions of the C ontract Documents, then Seller shall remain responsible for and correct any and all such non- conformities or defects consistent with the provis ions set forth herein. Seller shall also provide the warranties as set forth in Seller’s Proposal. If Seller does not promptly comply with the terms of this Articl e 10, or in an emergency where delay would cause serious risk of loss or damage, Buyer may have the de fective Goods or Special Services corrected or the rejec ted Goods or Special Services removed and replaced, a nd all costs, losses, and damages caused by o r resulting from such removal and replacement (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals, all court or arbitration or other dispute resolution costs, and all costs of repair or replacement of work of others) will be promptly paid by Seller.
ARTICLE 11 - PAYMENT
11.01 Payments to Buyer
A. Buyer shall pay Seller net thirty (30) days from the Buyer’s approval of Seller’s acceptable annual invoice to be submitted by Seller no earlier than June 30 of each annual period, or a mutually acceptable annual invoicing cycle date.
ARTICLE 12 - CANCELLATION, SUSPENSION, AND TERMINATION
12.01 Cancellation. Buyer has the right to cancel the Contract, without cause, at any time pri or to delivery of the Goods by written notice. Cancellation pursuant to the terms of this paragraph shall not constitute a breach of contract by Buyer. Buyer may exercise its right to cancel the contract in full at any time and there will be no further payments or obl igations of Buyer under the Contract Documents. Upon cancellation, Seller shall within fifteen (15) days refund any and all amounts p aid by Buyer prior to the notice of can cellation unless Seller can demonstrate that such amounts have been i ncurred by Sel ler in t he direct fabrication of the Goods through documentation acceptable to Buyer.
12.02 Suspension/Termination of Performance b y Buye r. Buyer has the right to terminate the Agreement or suspend performance of the Contract, without cause, by written notice. Upon suspension under this paragraph, Seller shall be entitled to a mutually agreed upon increase in the Contract Times and Contract Price caused by the suspension, provided that performance would not have been suspended or delayed for causes att ributable to Seller.
12.03 Cancellation or Suspension of Performance by Seller. Seller has no right to cancel the Contract or suspend performance of the Contract, except S eller may suspend the furnishing of the Goods and Special Services only under the following circumstance: (1) Seller has requested in writing assurances from Buyer that future payments will be made in accordance with the Contract, and Buyer has failed to provide such assurances within fifteen days of Seller’s written request.
12.04 Breach and Termination
A. Seller shall be dee med in breach of the Contract if it fails to comply with any material provision of the Contract Documents, including, but not limited to:
a. failure to deliver the Goods or perform the Special S ervices in acc ordance with the Contract Documents,
b. wrongful repudiation of the Contract, or
c. delivery or furnishing of non-conforming Goods or Special Services.
d. it becomes inso lvent, enters voluntary bankruptcy or receivership proceedings or makes an assignment for the benefit of creditors.
B. Buyer may terminate Seller’s right to perform the Contract for cause by declaring a breach should Seller fail to comply with any materi al provision of the Contract Documents. Upon termination, Buyer shal l be entitled to all remedies provided by Laws and Regulations. In the event Buyer believes Seller is in breach of its obligations under the Contra ct, Buyer shall provide Seller with rea sonably prompt written notice setting forth in sufficient detail the reasons for declaring that it believes a breach has occurred. Seller shall have seven days from receipt of the written notice declaring the breach (or such longer period of time as Buyer may grant in writing) within which to cure the alleged breach.
ARTICLE 13 - LICENSES AND FEES
13.01 Intellectual Property and License Fees.
A. In the event the Seller is manufacturing to Buyer’s design, Buyer reta ins all intellectual property rights in such design. Seller shall pay all license fees and royalties and assume all costs incident to the use or the furnishing of the Goods, unless specified otherwise by the Contract Documents.
B. Both Parties agree to keep confidenti al the other Party’s propr ietary non-public information that is marked as “Confidential”, or si milar legend , if any, which may be acquired in connection wi th this Agreement.
Buyer will not, without Seller’s advance written consent, subject e quipment to any type of reverse engineering. Seller retains all of its pre-existing intellectual property rights including copyright which it has in all drawings and data or other deliverables (including the e quipment) supplied or developed under this Agreement. Buyer agrees that it will not file patent applications on the e quipment or any development or enhancement of the e quipment, or of processes a nd methods of using the e quipment, without Seller’s express prior written permission. Buyer further agrees that in any even t any such patents will no t be asserted against Seller or its other buyers based upon p urchase and use of such equipment. Seller grants to Buyer and Owner a non- exclusive, non- terminable, royalty free license to use the intellectual property embedded in equipment delivered to and p aid for by the Buyer, as well as any drawings, design or data delivered to and paid for by the Buyer, for t he purposes of owning, financing, using, operating and maintaining the relevant e quipment at Buyer’s /Owner’s site. Such lic ense may only be assigned to a subsequent owner of the e quipment or to an operations and mainte nance subcontractor. Such license does not extend to the re -creation of the e quipment or the manufacture of spares or consumables by Buyer or third parties. All other work product provid ed by Seller hereunder, other than its pre -existing intellectual property shall be a “ work made for hire ” and the Buyer and Owner shall be vested with all right s of ownership.
13.02 Seller’s Infringement
A. Seller shall indem nify and hold harmless Buye r, Owner and their respective officers, directors, members, shareholders, managers, partner s, employees, representatives, agents, affiliates, insurers, successors and assigns from and against all claims, costs, lo sses, damages, and judgments (including but not limited to all fees and charges of engineers, architects, attorn eys and other professi onals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement or al leged infringement of any United States or foreign patent or copyright by any of the Goods delivered h ereunder. In the event of suit or threat of su it for intellectual property infringement, Buyer will notify Seller within a reasonable time of receiving no tice thereof.
Upon w ritten demand from Buyer, Seller shall be given the opportunity to defend the cla im or suit , including negotiating a settlement. Seller shall have control over such claim or suit, provided that Seller agrees to bear all expenses and t o satisfy any ad verse judgment thereof. I f Seller fails to defend such suit or claim after written demand by Buyer, Seller will be bo und in any sub sequent suit or claim against Seller by Buyer by any factual determination in the prior suit or claim. If Buyer fails to pr ovide Seller the opportunit y to defend such suit or claim after written demand by Seller, Buyer shall be barred from any remedy against Seller for such suit or claim.
If a determination is made that Seller has infringed upon intellectual p roperty rights of another, Seller may obtain
the necessary licenses for Buyer’s benefit, or replace th e Goods an d provide related desi gn and construction as necessary to avoid the infringement at Seller’s own expense.
13.03 Buyer’s Infringement
A. Buyer shall indemnif y and hold harmless Seller, and its officers, directors, members, shareholders, managers, partne rs, employees, representatives, agen ts, affiliates, insurers, successors and assigns from and against all claims, costs, losses, damages, and ju dgments (including but not limited to all f ees and charges of engineers, architects, attorneys and oth er profess ionals and all court o r arbitration or other dispute resolution costs) arising out of or relating to any infringement or alleged infringement of any United States or foreign patent or copyright caused by Seller’s compliance with Buyer’s design of the Goods or Buyer’s use of the Goods in combination with other materials or equipment in any process (unless intent of such use was known to Seller and Seller had reason to know such infringement would result), except for the materials and equipment with respect to the Project . In the event of suit or threat of suit for intellectual property infringement, Seller must within a reasonable time after receiv ing notice there of notify Buyer. Upon writ ten demand from Seller, Buyer shall be given the opportunit y to defen d the claim or suit, including negot iating a settlement. Buyer shall have control over such claim or suit, provided that Buyer agrees to bear a ll expenses and to sa tisfy any adverse judg ment thereof. If Buyer fails to defend such suit or claim after writ ten demand by Seller, Buyer will be bound in any subsequent suit or claim against Buyer by Seller by any factual determination in the prior suit or claim. If Seller fails to provide Buyer the opportunity to defend such suit or claim after writte n demand by Buyer, Seller shall be barred from any remedy against Buyer for such suit or claim.
13.04 Reuse of Documents. Neither Seller nor any other person furnishing any of the Goods or Specia l Services under a direct or indirect contract with Seller shall: (1 ) acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof), including elec tronic media ver sions; or (2) reuse any of such Drawings, Specifications, other documents, or copies t hereof on any other project without written co nsent of Buyer. This prohibition will survive termination or completion of the Contract. Nothing herein shall preclude Seller from retaining copies of the Contract Documents for record purposes.
ARTICLE 14 - DISPUTE RESOLUTION
14.01 Dispute Resolution Method
A. With respect to disputes involving the Owner, Seller shall be bound in the same manner and by the same procedures and findings as between Owner and Buyer set forth herein; accordingly, Seller hereby expressly agrees to submit to the Arbitration process set forth in the prime contract.
14.02 Step Negotiations
A. For disputes not involving Owner, Buyer and Seller agree to the following dispute resolution process:
1. Step Negotiations. The part ies shall attempt in good faith to resolve all disputes ("Controversy") promptly by negotiation, as follows. Any party may give the other party written notice of any Cont roversy not resolved in the normal course of business. Managers of both parties at levels at least one level above the project personnel involved in the Controversy shall meet at a mutually acceptable time and place within five days after delivery of suc h notice, and thereafter as often as they reasonably deem necessary, to exchange relev ant information and to attempt to resolve the Controversy. If the matter has not been resolved within thirty days from the referral of the Controversy to the managers, or if no meeting has taken place within ten days after such referral, either party may initiate mediation as provided he reinafter. All negotiations pursuant to this clause are confidential and shall be treated as compromise and settlement n egotiations purposes of the Federal Rules of Evidence and state Rules of Evidence.
2. Mediation. In t he event that any Controversy arising out of or relating to this Agreement is not resolved in accordance with the procedures provided in the prior paragra ph, such Controv ersy shall be submitted to mediation with a mutually agreed upon mediator. If the med iation process has not resolved t he Controversy within thirty days of the submission of the matter to mediation, or such longer period as the parties may agree
to, the me diation process shall cease. All mediation documents and discussions pursuant to this clause ar e confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and state Rules of E vidence. Nothing herein shall limit the rig hts and remedies that the parties may have under this Agreement or under other legal and equitable proceedings.
ARTICLE 15 - MISCELLANEOUS
A. Whenever any provision of the Contract Documents requires the gi ving of written notice, it will be deemed to have been validly given if delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail , postage prepaid, to the last business address known to the giver of the notice.
B. This Contract is to be governed by the law of the State of California. Any action to enforce or interpret this Agreement shall be commenced or maintained only in the jud icial or administrative tribunal in the juri sdiction of the State of California in San Bernardino County , and each party waives any ven ue, convenient forum, removal, jurisdiction, or other rights to the contrary.
C. Seller shall maintain records during the term of this Agreement and for five (5) years following expiration or termination of this Agreement relating to the Goods or Special Services, time expended and expenses incurred.
Owner and Buyer shall have the right, upon reasonable notice, to examine such records.
D. When any period of time i s referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by t he law of the applicabl e jurisdiction, such day shall be omitted from the computation.
E. All representations, indemnifications, warranties and guarante es made in, required by, or given in accordance with the Contract Documents, as well as all cont inuing obligations indicated in the Contract Documents, will survive final payment, c ompletion a nd acceptance of the Go ods or Speci al Services and termination or completion of the Agreement.
F. All ideas, memoranda, specifications, plans, procedures, draw ings, descriptions, compute r program data, written information and other documents or data eith er created by Seller or provide to Seller by Buyer in connection with this Agreement shall be considered confidential and shall not be released by Seller without Buyer’s prior written authorization, or as required by applicable law. Upon termi nation of this Agreement, Seller shall return to Buyer or destroy all confidential da ta. Seller agrees not to make use the Seller’s name or insignia, photographs relating t o the project or facility, o r any publicity pertaining to the Seller’s services under this Agreement in any magazine, t rade paper, newspaper, television or radi o production or other advertising material or medium of any kind, without the express written pe rmission of Buyer. Seller shall neither disclose the existence, or the terms and conditions, or the subject matter of this Agreement to any party; issue press releases or any other publication regarding the existence, the terms and conditi ons, or the subj ect matter of this Agreement; issue statements as to the existence of a rel ationship between the parties; nor use the B uyer’s, Owner’s or their parents’, affiliates’ or subsidiaries’ corporate names or trademarks.
G. No assignment of thi s Agreement will be made by Seller without t he prior written consent of Buyer. In addition to constituting a de fault under this Agreem ent, any assignment or attempted assignme nt made in violation of this Paragraph will be null and void and the assignee wi ll acquire no ri ghts thereunder. If Buyer chooses in its sole discretion to agree to a consent in writing to an assignment of this Agreement, the assignee will be bound to the terms of this Agreement. If any assignment is made in breach of this Agreement , Seller will be liable to Buyer for all dam ages resulting therefrom. Buyer has the right to assign the Contrac t for furnishing Goods and Special Services hereunder and Seller shall accept such assignment ; the parties acknowledge that consideration has be en provided in c onnection with Buyer’s option to assign this Agreement to Owner or any other party.
H. Buyer and Seller each binds i tself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents.
I. Any provision or part of the Contract Document s held to be void or unenforceable under any Law or Regulation shall be deemed s tricken, and all remaining provisions shall continue to be valid and binding upon Buyer and Seller. The Contrac t Documents shall be r eformed to replace such stricken provision or part thereof
with a valid and enforceable provision that comes as close as p ossible to expressing the intention of the s tricken provision.
J. The Seller hereby certifies that no undiscl osed conflict of inte rest exists with respect to the present Agreement, including any conflicts that may be due to representation of other clients, other contra ctual relationships of the Seller, or any interest in property which the Seller may have. The S eller further certifies that any apparent conflict of interest arising during this Agreement will be immediately disclosed in writing to Buyer.
Violation of th is subsection will be considered as justification for immediate termina tion of this Agreement by Buyer. In the event that the Owner determines that Seller must disclose its financial interests by completing and filing a Fair Political Prac tices Commission Form 700, Statement of Economic Interests, Seller shall file such Form 700 with the Victorville City Clerk’s Office pursuant to the written instructions provided by the City Clerk.
K. The Buyer is empowered to request the Seller to re move any employee or representative of the S eller from working on this project who the Owner determines is not s atisfactorily perfor ming the assigned duties or is demonstrating improper conduct, whether job related or not.
L. In the event any action, suit, or proceeding is brought by Buyer for the enforcement of, or the declaration of any right or obligation pursuant to this Agreeme nt, or as a result of any alleged breach or b reach of this Agreement by Seller, the prevailing party in such suit or proceedi ng shall be enti tled to recover its costs an d expenses, including reasonable attorneys’ fees from the losing party, and any judgment or decree rendered in such a proceeding shall include an award thereof.
M. Buyer shall have access to any books, document s, papers, and r ecords of the Seller which a re pertinent to the Agreement, for the purpose of making audits, examinations, excerpts and transcriptions. Seller shall maintain all required records for five years after final payment is made and all other pending matters are closed.
N. Seller shall comply with Restrictions on Lobbying, P ublic Law 101- 121, Section 319, as supplemente d by applicable regulations. Seller certifies that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible or volunta rily excluded from participation in thi s transaction by any State or Federal department or agency. Seller will not subcontract with any subcontractor or supplier for this project if it or its principal is debarr ed, suspended, pr oposed for debarment, decla red ineligible or voluntarily excluded from participation in this tr ansaction by any State or Federal department or agency. Necessa ry certification forms shall be provided by the Buyer.
ARTICLE 16 – SELLER’S LIMITATION OF LIABILITY
Notwithstanding anything else contained in this Agreement, to the maximum extent permitted by law, and regardless of whether a claim is based in contract (including warranty or indemnity), extra-contractual liability, tort (including negligence or strict liability), statute, equity or any other legal theory:
(a) EXCLUDING SELLER’S THIRD PARTY INDEMNITY OBLIGATIONS FOR DEATH AND
BODILY INJURY, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT AND LIABILITY FOR BREACH
OF CONFIDENTIALITY THE TOTAL LIABILITY OF THE SELLER AND OF ITS INSURER FOR ALL
CLAIMS ARISING OUT OF OR RELATING TO THE PERFORMANCE OR BREACH OF THIS
AGREEMENT OR USE OF ANY EQUIPMENT OR SERVICES SHALL NOT EXCEED FIVE TIMES THE ANNUAL PRICE PAYABLE BY BUYER UNDER THIS AGREEMENT;
(b) IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF
PROFIT OR REVENUES, LOSS OF PRODUCTION, LOSS OF USE OF EQUIPMENT OR SERVICES OR
ANY ASSOCIATED EQUIPMENT, INTERRUPTION OF BUSINESS, COST OF CAPITAL, OR FOR ANY
SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES (COLLECTIVELY, “CONSEQUENTIAL DAMAGES”); PROVIDED, HOWEVER, THIS PROVISION SHALL NOT APPLY TO
ANY CONSEQUENTIAL DAMAGES ASSERTED AGAINST OR INCURRED BY BUYER THROUGH ANY
OTHER PARTY, INCLUDING BUT NOT LIMITED TO OWNER, AND FOR INDEMNITY OBLIGATIONS FOR DEATH AND BODILY INJURY AND GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
IN WITNESS WHEREOF, Buyer and Seller have signed this Agreement in duplicate. One counterpart each has been delivered to Buyer and Seller. All portions of the Contract Documents have been signed or identified by Buyer and Seller or on their behalf.
This Agreement will be effective on [insert date].
Buyer: Seller:
By: By:
[Corpor ate Seal]
Attest:
Address for giving notice: Address for giving notice:
Agent for service of process:
(if Seller is a corporation or a partnership,
attach evidence of authority to sign.)
Designated Representative: Designated Representative:
Name: Name:
Title: Title:
Address: Address:
Phone: Phone:
Facsimile: Facsimile: