PEAC LLC STANDARD
TERMS
AND CONDITIONS
PREAMBLE
THESE STANDARD TERMS AND CONDITIONS entered into by and between the entity identified in
PEAC LLCs proposal ("Buyer" or Customer)
and
Professional Electrical and Automation Consultants LLC (PEAC LLC)
Industry, Inc., a U.S Corporation (PEAC LLC), are effective as of the Effective Date hereof.
These Standard Terms and Conditions
incorporate PEAC LLC
proposal (the Proposal).
ARTICLE 1
DEFINITIONS
As used in this Agreement, the following terms have the meanings set forth below:
Agreement has the meaning set forth in Article 18.1.
Affiliate means, as to a specified Person, any other Person that, directly or indirectly, controls or is
controlled by or is under common control with the Person in question and, with respect to PEAC
LLC or Buyer,
is not a competitor of, or in litigation or
arbitration with, PEAC
LLC or Buyer, as the case may be.
Applicable Laws means all applicable laws, including Environmental Laws, treaties, ordinances, rules,
regulations and interpretations of any Governmental Authority having jurisdiction over the design,
engineering, fabrication, manufacturing, delivery, assembly, erection, installation, and/or the performance of
the Parties obligations under this Agreement.
Applicable Permits means the permits, clearances, licenses, authorizations, consents, filings, exemptions or approvals from or required by any Governmental Authority that are necessary for the performance of the Parties obligations under this Agreement.
Asbestos shall mean
and include
chrysotile, amosite, crocidolite, tremolite
asbestos, anthophyllite
asbestos, actinolite asbestos, and any of these minerals that has been chemically treated and/or altered.
Buyer Caused Delay means any delay in PEAC LLC
or its Subcontractors performance of the Work which
is caused by (i) Buyers or
any
Buyer Partys failure to timely perform its obligations under this
Agreement, or (ii) any other event or cause
which is beyond the control or not the responsibility of PEAC LLC
or any of its
Subcontractors, and is
not
otherwise a Force Majeure Event.
Buyer Party or Buyer Parties or Buyer means Party/Parties with whom
and agreement has been signed or Contract for delivery has been signed and
shall be henceforth called Buyer, This
are the Contract Parties and any Affiliate of Buyer, and any of their respective contractors, subcontractors, employees, laborers, materialmen, agents or representatives which is not a competitor of
PEAC LLC.
Contract Price means the cumulative
price payable by Buyer with respect to all Work which PEAC LLC shall perform or provide in connection with this Agreement, as the same is set forth in Section 4.1 of this
Agreement.
Convenience Termination Payment has the meaning set forth in Section 13.2.
Deliverables means collectively, (a) any Equipment and any Software deliverable to Buyer from PEAC LLC in connection with the Work, and (b) any Work Product.
Effective Date means the last date on which this Agreement became fully executed (either electronically
or otherwise).
Environmental Laws means applicable national, state, commonwealth, provincial, municipal, and local
laws as well as all rules, regulations, codes, standards, permits, directives, or ordinances that impose
liability or standards of conduct (including disclosure or notification requirements) concerning the protection
of human health or the environment,
including, without limitation, all laws affecting, controlling, limiting, regulating, pertaining, or relating to the manufacture, possession, presence, use, generation, storage, transportation,
detection, monitoring, treatment, Release, disposal, abatement,
cleanup, removal, remediation, or handling of Hazardous Materials.
Equipment means the installed physical equipment to be provided by PEAC LLC
as described in greater
detail in the Proposal.
Event of Default has the meaning set forth in Section 13.1.
Final Completion Date means that the date on which all the Work has been completed including all punch list items.
Force Majeure Event has the meaning set forth in Section 10.2.
Governmental Authority means any governmental, judicial, public or statutory instrumentality, tribunal, agency, authority, body or entity, or any political subdivision thereof, having legal
jurisdiction over the matter or Person in question.
Hazardous
Materials means any material, substance, or waste, that, by reason of its composition or
characteristics,
is
hazardous to human health and/or the environment, including any solid waste or
hazardous
waste, as those terms are defined by the Resource Conservation and Recovery
Act of 1976,
as amended, any hazardous substance, as that term is defined by the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended, and any other hazardous, toxic or radioactive chemical, waste, byproduct, pollutant, contaminant, compound, product, material or substance, including without limitation, Asbestos, Asbestos containing materials (ACM), polychlorinated biphenyls,
petroleum (including crude oil or any fraction or byproduct thereof), hydrocarbons, radon, urea, urea
formaldehyde, and any other material that is prohibited, controlled, limited or regulated in any manner under any Environmental Laws.
Import Duties means any taxes, customs duties, tariffs, fees, imposts and governmental charges of any kind that are payable upon or in relation to the importation
of the components of the Equipment into the
Country where the Work is to occur. Import Duties do not include any property,
license, privilege, sales,
use,
excise, value added, gross receipts (including any business,
occupation or similar taxes) and/or
transactional taxes now or hereafter applicable to, measured by, or imposed upon or with respect to the
transaction, the Equipment, or their sale,
their value or their use, or any services performed in connection
therewith imposed by any federal, state or local Governmental Authority in the location where the Work is
to be performed.
Indemnitor has the meaning set forth in Section 14.1.
Indemnitee has the meaning set forth in Section 14.1.
Notice to Proceed shall mean the written notice issued by Buyer to PEAC LLC
stating that PEAC
LLC may
begin the Work.
Party or Parties means, respectively, Buyer, PEAC
LLC or both, as the context requires.
Patent Cooperation Treaty means an international patent law treaty, concluded in 1970, that provides a unified procedure for filing patent applications to protect inventions in each of its more than one hundred
and
forty-five (145) contracting states.
Person or Persons means any individual, corporation, partnership, limited liability company, association,
joint stock company, trust, unincorporated organization, joint venture, government
or political subdivision
or agency thereof.
Proposal means the document that is made part of this Agreement that describes the Work and the pricing
applicable to the Project.
Project is as identified in the Proposal.
Project Site means the particular site designated by Buyer on which the Project shall be located.
Release shall mean any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping, or disposing of any Hazardous Materials into the environment, including the
abandonment or discard of barrels, containers, and other closed receptacles containing any Hazardous
Materials.
PEAC
LLC Parties means PEAC
LLC, any Affiliate of PEAC
LLC, and any of their respective Subcontractors, employees, laborers, materialmen, agents or representatives, and PEAC LLC
Party means any of the foregoing.
Software means any software that is owned or licensed by PEAC LLC or its Affiliates
and
that is separately
deliverable
for
use in the Equipment or in a computer system owned by Buyer or is delivered as firmware
embedded in the Equipment.
Subcontractor(s)" means any Person of any tier supplying material, equipment,
labor, goods or services to PEAC LLC
in connection with the Work and obligations of PEAC
LLC under the Agreement.
Substantial Completion or Substantially Complete means that the Work, or any identifiable portion thereof, is sufficiently complete, in accordance with the provisions of this Agreement relating to the scope
of the Work, such that the Buyer will be able to realize from such Work substantially
all of the practical
benefits intended to be gained therefrom, or
otherwise employ the Work for its intended purpose with only
punch list items remaining.
Termination for Cause has the meaning set forth in Section 13.1.
Warranty or Warranties has the meaning set forth in Section 9.1. Warranty Period has the meaning set forth in Section 9.4.
Work means PEAC
LLC scope of work with respect to the Equipment, major components, spare parts and
associated services and other work supplied by or on account of PEAC
LLC and its Subcontractors pursuant
to its obligations specified in this Agreement and as identified as PEAC
LLC responsibility in the Proposal.
Work Product means the
tangible form of a
report or drawing specifically developed for, commissioned by
and deliverable to Buyer in connection with the Work to be performed by PEAC
LLC under this Agreement
Work Schedule means that certain schedule governing PEAC LLC
provision of the Work as set forth in the
Proposal.
ARTICLE 2
PERFORMANCE OF THE WORK AND OBLIGATIONS OF PEAC LLC
2.1 Work to be Performed by PEAC
LLC.
2.1.1 General.
Buyer hereby retains PEAC LLC
as an independent contractor, not an agent or employee of Buyer,
to perform and provide, or cause to be performed and provided,
and
PEAC LLC hereby agrees to
perform and provide, or cause to be performed or provided, all of the Work specified as being within PEAC
LLC scope of Work, all in accordance with the terms and conditions of this Agreement.
2.1.2
Standard of Care,
The Work shall be conducted
in
a manner consistent with the degree of care and skill ordinarily
exercised by reputable firms performing the same or similar work in the same locale acting under similar circumstances or conditions.
2.2 Scheduling and Monitoring of Milestones.
Except to the extent that PEAC
LLC is entitled to a Scope Change Order or other relief provided
for in this Agreement, PEAC
LLC shall perform its Work in accordance with the Work Schedule. Further, PEAC
LLC shall provide periodic reports to Buyer concerning the status of PEAC
LLC activities,
including information pertaining to the progress
of the Work and any circumstances known
at the time of reporting which could be anticipated to cause a material deviation from the Work Schedule.
2.3 PEAC LLC Documents.
Except as otherwise provided in this Agreement, within fifteen (15) days of receipt of any PEAC LLC document required to be submitted to Buyer for review under this Agreement, Buyer shall notify PEAC LLC of any resulting comments or questions. If Buyer fails to respond within such period, then such drawing or document shall be deemed to have been reviewed and approved by Buyer as submitted. PEAC
LLC shall, within fifteen (15) days of Buyers notification of any comments or questions on any PEAC
LLC document respond to Buyers comments
or questions, provided that PEAC LLC shall not be required to change the
design of
the Equipment pursuant to such Buyer comments or questions.
2.4 Permits.
Buyer
shall obtain and maintain the Applicable Permits required to perform the Work under Applicable Laws. If any Permit (or application
therefor)
requires
further action by Buyer, Buyer shall, upon the request of PEAC LLC, take such action
as is
reasonably appropriate.
2.5 PEAC LLC Labor.
PEAC LLC shall be responsible for the conduct and deeds of its labor and its Subcontractors
labor in the
performance of the Work under this Agreement. However, PEAC LLC
shall not interfere with any members
of any government office, including police, military or security force in the execution of their duties.
2.6 Safety
PEAC LLC may suspend its performance
of the Work at the Project Site, if, in the reasonable opinion of
PEAC LLC, based upon industry standards and PEAC LLC applicable
safety programs, conditions at the Project Site for which PEAC
LLC is not responsible become unsafe for the continued performance
of the Work and such conditions are not rectified by Buyer immediately. PEAC
LLC shall resume its performance of the Work promptly after the unsafe conditions are rectified by Buyer.
PEAC LLC
shall be entitled to a Scope Change Order to compensate
PEAC LLC for the increased
cost of its performance and/or schedule delay resulting from such suspension of the Work.
ARTICLE 3
SUBCONTRACTORS
Buyer acknowledges that PEAC LLC
intends to have portions of the Work performed by Subcontractors qualified to perform such Work pursuant
to written subcontracts between
PEAC LLC and such Subcontractors. No contractual relationship shall exist between Buyer and any Subcontractor with respect
to the Work. PEAC
LLC shall not have any responsibility, duty or authority to direct, supervise or oversee
any
contractors of Buyer, or their work, or to provide the means, methods or sequence of their work or to stop their work.
ARTICLE 4
CONTRACT PRICE AND PAYMENTS TO
PEAC LLC
4.1 Contract Price and Payment.
The total Contract Price is as set forth and defined more specifically in the Proposal.
Buyer shall pay the total Contract Price to PEAC
LLC in accordance
with the Proposal. Each payment, except for the initial payment, shall be made by wire
transfer, pursuant to wire
transfer instructions to be provided by PEAC
LLC to Buyer, within thirty (30) days from the date of the PEAC
LLC invoice therefor or by such other payment
method acceptable to PEAC
LLC.
The Contract Price is based upon Buyer performing its obligations set forth in this Agreement.
The Contract Price, schedule, warranty and guarantee obligations are based upon unrestricted working
hours at, and free access seven (7) days a week, twenty-four (24) hours a day, to the Project Site, including free access to any components requiring assembly by PEAC LLC
as part of PEAC
LLC scope of
Work.
4.2 Taxes.
The Contract Price does not include but
such taxes may be presented as an estimate in the proposal, and Buyer agrees to reimburse PEAC LLC
for, any Import Duties levied
upon the Equipment, or any tax,
or fee (other than net income taxes imposed on PEAC LLC),
property, license, privilege,
sales, use, excise, value added, gross receipts (including any business, occupation or similar taxes) and/or transactional
taxes
now or hereafter applicable to, measured by, or
imposed upon or with respect to the transaction, the Equipment or their sale, their value or their use, or any
services performed in connection therewith
Should Buyer be exempt from any sales and/or use taxes, it shall provide PEAC LLC with valid exemption documentation upon the Effective Date of the Agreement for the State(s) in which the delivery of the Equipment shall take place. PEAC
LLC shall not collect sales and/or use taxes from Buyer if PEAC
LLC is provided such valid exemption documentation for its files
prior to issuing an acknowledgment to a Purchase Order or signing a Contract
based on a valid Proposal.
4.3 Disputed Invoices.
If there is any dispute about any amount invoiced by PEAC LLC,
the amount not in dispute shall be promptly paid and any disputed amount that is ultimately determined to have been payable shall be paid with interest calculated at the rate of one and one-half percent (1.5%) per month, limited by the maximum rate permitted by Applicable Law. The date of the original invoice on which there was a disputed amount shall determine the date upon which the disputed amount first became due and payable, irrespective of whether any
subsequent invoice is issued or reissued in connection
with the resolution and payment of the disputed
amount.
ARTICLE 5
BUYERS RESPONSIBILITIES
5.1 Buyer shall, at its own cost, do the following:
(a)
Designate a
contact person with authority to make decisions for the Buyer,
through a Chamber of Commerce attested signature mandate, regarding the Work and provide PEAC
LLC with information sufficient to contact such person in an emergency;
b)
Coordinate the work of
contractors under Buyers sole control so as not to disrupt the Work
proceeding in an efficient manner;
(c)
Provide or
arrange for 24-hour, 7-day per week access and make all reasonable provisions
for
PEAC LLC to enter any Project Site where Work is to be performed so that Work may proceed in an efficient manner;
(d)
Provide for security for all components of the Work, materials, supplies, other equipment required to assemble, erect, install and commission the Work, and any other property owned or leased by Buyer, PEAC
LLC or any of its Subcontractors located at the Project Site;
(e)
Permit
PEAC LLC to control
and/or
operate all
building controls,
systems, apparatus,
equipment and machinery necessary to perform the Work;
(f)
Furnish PEAC
LLC with blueprints, surveys, legal descriptions, waste management plans and
all other available information
pertinent to the Work and any Project Site where the Work is to be performed as may be reasonably requested by PEAC
LLC;
(g)
Furnish PEAC
LLC with all approvals, permits and consents from Governmental Authorities and others as may be required for performance of the Work, except for PEAC LLC
Permits;
(h) Comply with Applicable
Law
and provide any notices required to be given to any Governmental Authority in connection with the Work, except such notices PEAC
LLC has expressly agreed in writing to give;
(i)
Furnish PEAC
LLC with any contingency plans, safety programs and other policies, plans or
programs related to any Project Site where the Work is to be performed; and
(j)
Provide and maintain at the Project Site: (1) suitable electrical service, including clean, stable,
properly conditioned power, to all Equipment; (2) telephone lines, capacity and connectivity as
required by such Equipment; and (3) heat, light, air conditioning or other environmental controls, and
other utilities in accordance with the specifications for the Equipment.
5.2. Export Import Compliance.
Buyer acknowledges that PEAC
LLC is required to comply with
applicable export / import laws and regulations
relating to the sale, export, import, transfer, assignment, disposal and use of the Equipment,
including any
export / import license requirements. Buyer agrees that Equipment
will not at any time directly or indirectly be
used, exported, imported, sold, transferred, assigned or otherwise disposed of in a manner
which will result in
non-compliance with any export / import laws and regulations. PEAC
LLC continuing performance hereunder is conditioned on compliance with such export / import laws and regulations at all times.
ARTICLE 6
HAZARDOUS MATERIALS
Prior to any Work being conducted at the Project Site, Buyer shall: (a) identify to PEAC LLC
the presence,
location and quantity of ACM at the Project Site; and (b) either certify that the work area associated
with
PEAC LLC scope of Work is free of ACM or take such action as may be required under Environmental Laws
to abate the ACM and, thereafter, certify that the work area associated with PEAC
LLC scope of Work is free of
ACM. PEAC
LLC makes no representation that it is licensed to abate ACM and shall not be obligated to install, disturb, handle, or remove any ACM.
Buyer
represents and warrants that, prior to the execution of this Agreement, Buyer has notified PEAC LLC in writing of any and all Hazardous Materials known to be present on the Project Site and has: (a) expressly
identified the nature and location of such Hazardous Materials to PEAC LLC,
including the provision of a map identifying the same; and (b) provided a copy of any Project Site policies related to such pre-existing Hazardous Materials, including, without limitation,
material safety data sheets, chemical hygiene plans, laboratory
procedures, or other items covered or required to be disclosed or maintained
pursuant to
applicable Environmental Laws.
The Work does not include, either directly or indirectly, performing or
arranging for the detection, monitoring, handling, storage, removal, transportation, disposal, or treatment of Hazardous Materials. If any Hazardous
Materials, including ACM, are encountered at the Project Site, PEAC LLC
shall immediately stop all Work in
the affected area and report the condition to Buyer. Buyer shall promptly, in accordance with all applicable Environmental Laws and at its sole cost and expense, remove or render harmless, or take other actions as may be necessary to remediate the hazards associated with any such Hazardous Material, including, without limitation, signing and listing Buyer (or the appropriate
Buyer Party) as the generator of the Hazardous Materials on any waste manifest that may be required by Environmental Laws. PEAC
LLC Work in the affected area shall not be resumed until Buyer has complied with the foregoing obligations.
If the existence and remedying of Hazardous Materials at the Project Site results in an increase in PEAC
LLC costs and/or
impacts PEAC LLC
ability to meet its obligations, guarantees, or
the
Work Schedule under the
Agreement, PEAC
LLC shall be entitled to a Scope Change Order in accordance with the applicable provisions of Article 8, increasing
the Contract Price and providing an equitable extension of the Work
Schedule and other provisions of the Agreement
affected thereby or otherwise affected by Buyers non- compliance, commensurate
with the time reasonably required to overcome such delay and added cost,
including without limitation, overtime charges for labor and equipment.
Buyer, on behalf of itself, all Buyer Parties, and the predecessors and successors in interest, insurers, and assigns of each of them, shall defend, release, indemnify and hold harmless PEAC
LLC, all PEAC LLC
Parties and the successors and assigns of each of them from and against any and all liability arising under
Environmental Laws or as a result of any Hazardous Materials at or any environmental condition of the Project Site, including, without limitation, fines and penalties, reasonable fees for attorneys, consultants or
other professionals, and the costs of reporting, investigation, monitoring, containment, cleanup, storage, disposal, transportation and any other remedial actions arising under applicable
Environmental Laws that
are incurred by any Indemnitee hereunder
for and as a
result of: (i) death or bodily injury to any
person, (ii)
destruction or damage to any
property, (iii) contamination of or adverse effects on the environment, including
a Release of any kind, (iv) any violation by Buyer or any Buyer Party of Environmental Laws, and/or (v) a breach by Buyer or any Buyer Party of any legal duty arising under applicable Environmental Laws or any obligations
under the environmental provisions of this Agreement. This release and indemnity shall survive the termination
or
expiration of this Agreement and shall be construed as broadly as possible under applicable Environmental Laws.
ARTICLE 7
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, PEAC
LLC SHALL NOT BE
LIABLE TO BUYER OR ANY THIRD PARTY, WHETHER BASED IN CONTRACT, WARRANTY,
TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL OR EQUITABLE
THEORY,
FOR:
LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR OPPORTUNITY,
COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS
OF
INFORMATION AND DATA, LOSS OF POWER, VOLTAGE IRREGULARITIES OR FREQUENCY FLUCTUATION, CLAIMS ARISING FROM THE OTHER PARTYS THIRD PARTY CONTRACTS, OR FOR
ANY
TYPE OF INDIRECT, SPECIAL, LIQUIDATED,
PUNITIVE, EXEMPLARY, COLLATERAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR
TYPE.
PEAC LLC MAXIMUM LIABILITY UNDER THIS AGREEMENT IS THE ACTUAL PURCHASE PRICE
RECEIVED BY PEAC LLC
FOR THE EQUIPMENT THAT GAVE RISE TO THE CLAIM.
EACH PARTY AGREES THAT THE EXCLUSIONS
AND
LIMITATIONS IN THIS ARTICLE 7 WILL PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND MUST BE GIVEN FULL FORCE AND EFFECT, WHETHER OR NOT ANY OR ALL SUCH REMEDIES
ARE
DETERMINED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF
LIABILITY ARE EFFECTIVE EVEN IF EITHER PARTY HAS BEEN ADVISED BY THE OTHER OF THE
POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES
FROM
LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS ARTICLE 7 EXTEND TO
EACH PARTYS AFFILIATES
(AND THEIR EMPLOYEES), PARTNERS, PRINCIPALS,
SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, SUPPLIERS OF ANY TIER (AND THEIR EMPLOYEES), AGENTS, AND SUCCESSORS AND ASSIGNS.
ARTICLE 8
CHANGES TO THE WORK
PEAC LLC shall deliver and/or perform the Work in accordance with the Applicable Laws in effect on the
Effective Date. No change will be made to the scope of Work unless Buyer and
PEAC LLC agree in
writing to the change and any resulting price,
schedule or other contractual modifications associated therewith. If
any
change to any law, rule, regulation, order, code, standard or requirement impacts PEAC LLC
obligations
or performance under this Agreement, PEAC
LLC may request a change order for an equitable adjustment
in
the price and time of performance.
ARTICLE 9
WARRANTY
9.1. Warranties.
PEAC LLC warrants that: (i) the Equipment is free from defects in material and workmanship;
(ii) the
Equipment is in compliance with PEAC LLC's Proposal; and (iii) at the time of delivery, PEAC
LLC has title to the Equipment free and clear of liens and encumbrances (collectively, the Warranties").
The Warranties
do not apply to Software furnished
by PEAC
LLC. The sole and exclusive
warranties
for any Software are set forth in the applicable Software License Agreement or Terms of Use to be provided with the Software.
9.2. Conditions to the Warranties.
The Warranties are conditioned on: (i) no repairs, modifications or alterations being made to the Equipment
other than by PEAC LLC
or its authorized representatives; (ii) Buyer handling, using, storing, installing,
operating and maintaining the Equipment in compliance
with any parameters or instructions in any specifications attached to, or
incorporated into this Agreement; (iii) compliance with all generally accepted
industry standards; (iv) Buyer discontinuing
use
of the Equipment after it has, or should have had,
knowledge of any defect; (v) Buyer providing prompt written notice of any warranty claims within the Warranty Period described below; (vi) at PEAC LLC'
discretion, Buyer either removing and shipping the Equipment or non-conforming part thereof to PEAC LLC,
at Buyer's expense, or granting PEAC LLC
reasonable access to the Equipment to assess the warranty claims; (vii) Equipment not having been subjected to
accident (including Force Majeure), alteration, abuse or misuse;
(viii) Buyer not being in default of any
payment obligation and (viii) Buyer allowing PEAC LLC the opportunity
to review the operating and
maintenance records relating to the Equipment and the facility it is incorporated into, if applicable.
9.3.
Exclusions from Warranty Coverage.
The Warranties do not apply to any equipment not provided by PEAC
LLC under this Agreement.
Any Equipment that is described as being experimental, developmental,
prototype, or pilot is specifically
excluded from the Warranties and is provided to Buyer as is with no warranties of any kind. Normal wear and tear are excluded, including any expendable or
consumable items that comprise part of the Equipment (such as
fuses, light bulbs and lamps).
PEAC LLC does not warrant or guarantee that any Equipment will be secure from
cyber threats,
hacking or similar malicious activity. Equipment that is networked, connected to the internet,
or otherwise connected to computers or other devices must be appropriately protected by Buyer and/or end
user
against unauthorized access.
9.4. Warranty Period.
Buyer must provide written notice of any claims for breach of Warranties by twelve (12) months
from shipment (Warranty Period). Additionally, absent written notice within the Warranty Period, any use or possession of the Equipment after expiration of the Warranty Period is
conclusive evidence that the Warranties have been satisfied.
9.5 Remedies.
Buyer's sole and exclusive remedies for breach of the Warranties
are limited, at PEAC LLC's discretion, to repair or replacement of the Equipment, or its non-conforming
parts, within a reasonable time period, or refund of all or part of the purchase price applicable to the non-conforming part. The warranty on repaired
or replaced parts is limited to the remainder of the original Warranty Period.
Unless PEAC
LLC agrees otherwise in writing, Buyer will be responsible for any costs associated with: (i) gaining access to the
Equipment; (ii) removal, disassembly, replacement, installation, or reinstallation
of any equipment,
materials or structures to permit PEAC
LLC to perform its warranty obligations; (iii) transportation to and from
the PEAC LLC factory or repair facility; and (iv) damage to Equipment components or parts resulting in whole or in part from non-compliance by the Buyer with Section 9.2 hereof or from their deteriorated condition. All exchanged Equipment replaced under this
Warranty will become the property of PEAC LLC.
9.6 Transferability.
The Warranties are only transferable during the Warranty Period and only to the Equipments
initial end-
user.
9.7 THE
WARRANTIES IN
THIS ARTICLE 9 ARE PEAC LLC'S
SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITS OF LIABILITY IN ARTICLE 7 ABOVE.
PEAC
LLC MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE.
ARTICLE 10
DELAYS; EXCUSED PERFORMANCE
10.1 Change in Law and Buyer Caused Delay.
As the Work is performed, conditions
may change or circumstances
outside PEAC LLC'
reasonable control, including without limitation, changes
of Applicable Law and Buyer Caused Delays, may develop which would require PEAC
LLC to expend additional costs, effort or time to complete
the Work, in which case
PEAC LLC will notify
Buyer and an equitable adjustment will be made to PEAC LLC's Contract Price and Work Schedule pursuant to Article 8. In the event conditions
or circumstances require the Work to be suspended or terminated, PEAC
LLC shall be compensated for Work performed and for costs reasonably incurred in connection with the suspension or termination.
10.2 Force Majeure.
If PEAC
LLCs performance is
delayed by any cause beyond its reasonable control (regardless of whether the
cause was foreseeable), including without limitation acts of God, strikes, labor shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, cyber-attacks, terrorist attacks, failure of normal
sources of supply, or acts or inaction of government (Force Majeure Event), PEAC
LLCs time of performance
will be extended by a period equal to the length of the delay plus any consequences of the delay, and PEAC
LLC will get its reasonable costs for such extension of time pursuant to Article 8.
PEAC LLC
will notify
Buyer within a
reasonable time after becoming aware of any such delay.
If PEAC LLC
is entirely prevented from performing the Work for a time period of one hundred eighty (180)
aggregate days as a result of the occurrence of a Force Majeure Event suffered by PEAC
LLC, then either
Party may terminate this Agreement with respect to the Work that has not been performed by the effective
date of such
termination at no cost or penalty, other than Buyers obligation to pay PEAC
LLC either (a) the
sum
set forth in the termination
payment schedule if applicable, or (b) that
portion of the Contract Price reflecting the amount of Work performed, man hours expended and materials acquired at the date of termination.
These charges will also include the expenses associated with the termination, including, but not limited to, any additional expense incurred by reason of termination or cancellation of agreements between PEAC LLC
and its suppliers, and any applicable cost allocated in contemplation of performance. If the
Agreement is terminated
pursuant to this Section 10.2, then PEAC LLC
remaining warranty and performance guarantee obligations shall automatically terminate.
ARTICLE 11
INSURANCE
11.1 Insurance coverage.
(a)
BUYER shall maintain full
liability on direct or consequential damages and shall maintain insurance
coverage in full force
and
effect. The insurance coverage and
limits specified below commencing upon the
Buyers issuance of a Notice to Proceed
and continuing until the Final Completion Date.
Upon
request, Buyer shall provide PEAC LLC
applicable
insurance certificates of such.
(b)
The Buyer shall instruct the insurance carrier to provide PEAC LLC
with thirty (30) days prior notice of cancellation,
termination or material alteration of any insurance
coverage set forth in this Article 11.
In addition, insurance
shall be maintained with insurance companies having an A.M.
Best rating of A- or better
and
a financial size category of VII or higher (or a comparable rating by any other rating entity reasonably acceptable to
Buyer and evidenced by Buyers written confirmation, which acceptance shall not be unreasonably withheld).
11.2 Subcontractors Insurance Coverage.
PEAC LLC shall require the
Buyers insurance to cover its Subcontractors
performing Work at the Project Site and maintain the types,
coverage and limits of insurance which are reasonable
in
accordance with prudent industry practice and
commensurate with the Work to be performed by such Subcontractor.
11.3 Waiver of Rights.
In regard to insurance maintained by either Party, including any property insurance, each such Party hereby waives, for itself and its insurers, all rights of recovery
and
subrogation which may arise against the other Party and its Affiliates as a
result of a payment made by an insurer.
ARTICLE 12
INTELLECTUAL PROPERTY RIGHTS
PEAC LLC shall retain all intellectual property rights in the Deliverables.
Upon receipt of all fees, expenses
and
taxes due in respect of the relevant Work, PEAC
LLC grants to the Buyer a non-transferable, non- exclusive, royalty-free license to copy and use the
documents included in or
with
the Deliverables for their intended purpose only.
If the Deliverables include Software, then
Buyer agrees to take delivery of such
Software subject to any applicable PEAC LLC
or third-party end-user license agreement
(EULA) accompanying such Software, or if no EULA or third-party license accompanies such PEAC LLCs Software, the standard EULA for such PEAC
LLC Software.
ARTICLE 13
DEFAULT, TERMINATION AND SUSPENSION
13.1 Events of Default.
The occurrence of any one or more of the following events shall constitute an Event of Default by a Party hereunder:
(a)
A Party makes a general assignment for the benefit of its creditors, is generally unable to pay its debts as they become due, or becomes the subject of any voluntary or involuntary bankruptcy, insolvency, arrangement,
reorganization or other debtor relief proceeding under any Applicable Laws
and, in the case
of an
involuntary proceeding instituted against a Party by a third
party, the
proceeding is not dismissed or stayed within forty-five (45) days after it is
commenced;
(b)
With regard to Buyer, Buyer fails to pay to PEAC
LLC any required payment, which failure continues for ten (10) days after receipt of written notice thereof from PEAC LLC;
(c)
The Buyer has made a material misrepresentation under the Agreement that is likely to have a material adverse effect on its ability to perform its obligations hereunder, and such representation
is
not made true within thirty (15) days after receipt of written notice thereof from the other Party; or
(d)
A Party is otherwise in material default of any provision of this Agreement or has materially failed
to perform its obligations under this Agreement, provided that if such material default of this Agreement
or material failure to perform this Agreement can be cured within a commercially reasonable timeframe, the defaulting Party shall be permitted
such period of time within which to accomplish such cure, so long as the Party commences
such cure efforts within thirty (30) days after written notice from the other Party and thereafter diligently proceeds to complete
such cure
within such time period.
Upon the occurrence and during the continuation of any Event of Default hereunder, the non-defaulting
Party, in addition to its right to pursue any other remedy given under the Agreement, shall have the right to
terminate this Agreement upon not less than five (5) days prior written notice to the defaulting Party (a
Termination for Cause). A Termination for Cause shall be effective upon the sixth (6th) day following
delivery of the notice with respect thereto.
13.2 Termination
for Buyers convenience.
In addition to any other termination
rights available to Buyer under this Agreement, Buyer shall have the
right to terminate the delivery of Work due to the economic unfeasibility of the Project for Buyer upon fifteen (15) days prior written notice to PEAC LLC.
Buyer shall pay PEAC
LLC either (a) the sum set forth in the termination payment schedule if applicable, or (b) that portion of the Contract Price reflecting
the amount of Work performed, man hours expended and materials acquired at the date of termination. These charges will also include the expenses associated with the termination, including, but not limited
to, any additional
expense incurred by reason of termination or cancellation of agreements between PEAC
LLC and its suppliers and Subcontractors, and any applicable cost allocated in contemplation of performance (the Convenience Termination Payment). All payments of the Contract Price made by Buyer and received by PEAC
LLC prior to the date of termination shall be credited toward the Convenience Termination Payment.
PEAC LLC shall submit
an invoice to Buyer for the Convenience Termination Payment and Buyer shall pay
such invoice by wire transfer within thirty (30) days after the date of such invoice. If the Agreement is terminated
by Buyer pursuant to this Section 13.2, then PEAC LLC remaining warranty and performance
guarantee obligations shall also automatically terminate.
ARTICLE 14
INDEMNITIES
PEAC
LLC
and Buyer (each as an Indemnitor) shall indemnify the other (Indemnitee) from and against all third party
claims alleging bodily injury, death or damage to a third partys tangible property, but only to the
extent caused by the Indemnitors
negligent acts or omissions.
If the injury or damage is caused by the
parties joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of fault. No part of the Equipment(s) or Buyers Project Site is considered third party property.
Indemnitee shall provide the Indemnitor with prompt written
notice of and
shall not acknowledge any third party claims covered by this Article 14. Indemnitor has the unrestricted right to select and hire counsel and
the exclusive right to conduct the legal defense and/or settle the claim on the Indemnitees
behalf.
The
Indemnitee shall not make any admission(s) which might be prejudicial to the Indemnitor and shall not enter
into a settlement without the express permission of the Indemnitor.
ARTICLE 15
REPRESENTATIONS
Each Party represents that on the Effective Date:
(a) Organization and Corporate Action.
PEAC LLC is a corporation duly organized,
validly existing and in good standing under the laws of the State of Florida, USA and is qualified to do business in the jurisdictions in which the Project is
located.
Buyer is
as identified in the Proposal and is duly organized, validly existing and in good standing under the laws of the State or Commonwealth identified in
the Proposal.
Each Party has all necessary
power and authority to execute, deliver and perform its obligations under this Agreement; the execution, delivery and performance by
the Party of this Agreement have been duly authorized by all necessary action on its part; and this Agreement has been duly and validly executed and delivered by the Party and
constitutes the legal, valid and binding obligation of the Party enforceable in accordance
with its terms, except as the enforceability thereof may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws relating to the enforcement of creditors rights generally and by general equitable principles.
(b) No Violation of Law; Litigation.
It is not in violation of any Applicable
Laws
or judgment entered by any Governmental Authority which violations, individually or in the aggregate, would materially and adversely
affect its performance of any of its obligations under this Agreement. There are no legal or arbitration proceedings or any proceeding by or before any Governmental Authority now
pending or (to the best knowledge of the Party) threatened against the Party which, if
adversely determined, could reasonably be expected to have a
material adverse effect on
the ability of the Party to perform under this Agreement.
(c) No Breach.
None of the execution and delivery of this Agreement, the consummation of the
transactions herein contemplated or compliance with the terms and provisions hereof and
thereof shall conflict with or result in a breach of, or require any consent under, the charter
or by-laws of the Party, or any Applicable Laws or regulation, order,
writ, injunction or
decree of any court, or any agreement or instrument
to which the Party is a party, or by which it is bound, or to which it is subject, or constitute a default under any such agreement
or instrument.
ARTICLE 16
PATENT AND COPYRIGHT INFRINGEMENT
PEAC LLC will, at its option and expense, defend or settle any suit or proceeding brought against Buyer
based on an allegation
that any Equipment
or use thereof for its intended purpose constitutes an
infringement of any Patent Cooperation Treaty country members patent or misappropriation of a third partys trade secret or copyright in the country where the Equipment is delivered by PEAC
LLC. Buyer will promptly give PEAC
LLC written notice of the suit or proceeding and the authority, information, and assistance
needed to defend the claims. Buyer shall not acknowledge any such third-party proceedings defined under this Article 16.
PEAC LLC
shall have the full and exclusive authority to defend and settle such claim(s) and will pay the damages and costs awarded in any suit or proceeding so defended. Buyer shall not make any admission(s) which might be prejudicial to PEAC LLC
and shall not enter into a settlement without PEAC
LLC written consent. PEAC LLC
is not responsible for any settlement made without its prior written consent. If the Equipment, or any part thereof, as a result of any suit or proceeding
so defended is held to constitute
infringement, or its use by Buyer is enjoined, PEAC
LLC will, at its option and expense, either: (i) procure for Buyer the right to continue using said
Equipment; (ii) replace it with
substantially equivalent non-infringing
Equipment; or (iii) modify the Equipment so it is
non-infringing.
PEAC LLC will have
no duty or obligation under this Article 16 if the Equipment is:
(i) supplied according to
Buyer's design or instructions
and
compliance therewith has caused PEAC
LLC to deviate from its normal
course of performance; (ii) modified by
Buyer or its contractors after delivery; or (iii) combined by
Buyer or its contractors with devices, methods, systems or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is brought against Buyer. In addition, if by reason of
such design, instruction, modification
or combination,
a suit or proceeding is brought against PEAC LLC,
Buyer must protect PEAC
LLC in the same manner and to the same extent that PEAC LLC has agreed to
protect Buyer under this Article 16.
THIS ARTICLE 16 IS AN EXCLUSIVE STATEMENT OF PEAC
LLC DUTIES AND BUYERS REMEDIES
RELATING TO PATENTS, TRADE SECRETS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY INFRINGEMENT THEREOF.
ARTICLE 17
CONFIDENTIALITY
Both during and
for
a period of ten (10) years after the term of this Agreement, the parties will: (i) treat as confidential all information obtained from the disclosing party, and (ii) use such confidential information for
its
intended purpose only. Confidential information includes all information
compiled or generated by the disclosing party under this Agreement for the receiving party, including but not limited to business
information, manufacturing
schedule information, technical data, drawings, flow charts, program listings, software,
plans and projections. Neither party may disclose or refer to the work to be performed under this
Agreement in any manner that identifies the other party without advance written permission.
However, PEAC
LLC has the right to share confidential information with its Affiliates and subcontractors, provided those
recipients are subject to the same confidentiality obligations set forth herein.
Nothing in this Agreement requires a party to treat as confidential any information which: (i) is or becomes
generally known to the public, without the fault of the receiving party; (ii) is disclosed to the receiving party,
without obligation of confidentiality, by a third party having the right to make such disclosure; (iii) was previously known to the receiving party, without obligation of confidentiality, which fact can be demonstrated
by means of documents which are in the possession of the receiving party upon the date of this Agreement; (iv) was independently developed by receiving party or its representatives, as evidenced by written records, without the use of disclosers confidential information; or (v) is required to be disclosed by law, except to
the extent eligible for special treatment under an appropriate protective order, provided that the party
required to disclose by law will promptly advise the originating party of any requirement to make such
disclosure to allow the originating party the opportunity to obtain a protective order and assist the originating
party in so doing.
Within thirty (30) days from the effective date of termination of this Agreement pursuant to Section 10,2,
13.1 or 13.2 , Buyer shall either (a) return to PEAC LLC
any of PEAC LLC confidential information which had
been in Buyers possession (excluding this Agreement), or (b) certify to PEAC LLC
that all of PEAC
LLC confidential information which had been in Buyers possession has
been destroyed.
ARTICLE 18
MISCELLANEOUS PROVISIONS
18.1 Entire Agreement.
This agreement, including the Proposal and all Exhibits thereto (the Agreement) contains the entire understanding of the Parties with respect to the subject matter hereof and supersedes all prior and/or
contemporaneous agreements and commitments with respect thereto. There are no other understandings, oral or written, nor other terms or conditions and neither Party has relied upon any representation, express or implied, not contained in this Agreement. Any modification to the Agreement must be in writing and executed by both Parties.
18.2 Applicable Law and Jurisdiction.
This Agreement is governed by and construed in accordance with the laws of the
State or Commonwealth where the Project Site is located, without regard to its conflict of laws principles. The application of the
United Nations Convention on Contracts for the International Sale of Goods is excluded. BOTH PEAC
LLC AND BUYER KNOWINGLY, VOLUNTARILY AND IRREVOCABLY WAIVE ALL RIGHTS TO A JURY TRIAL
IN
ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THIS AGREEMENT.
Each Party agrees
that claims and disputes arising out of
this Agreement must be decided exclusively in a
court of competent
jurisdiction located in the
location in which the Project Site is located. Each Party submits
to the personal jurisdiction of such courts for the purpose of litigating any claims or disputes.
18.3 Notice.
All notices, reports, demands, claims, elections, requests and other official communications
required or
permitted by this Agreement or by law to be served upon or
given to a Party by the other Party shall be in writing signed
by the Party giving such notice and shall be deemed duly served, given to and received by
the other Party when delivered by first class registered or certified mail,
return receipt
requested, postage prepaid, or by a nationally recognized courier, in each case addressed to those respective representatives
of each Party as identified in the Proposal.
The Parties, by like notice in writing, may designate, from time to time, another address, addressee or office to which notices shall be delivered pursuant to this Agreement,
which change of address shall become
effective five (5) Business Days after delivery of such Notice.
18.4 No Rights in Third Parties.
Except as otherwise expressly provided herein, this Agreement and all rights hereunder are intended for
the sole benefit
of the Parties and shall not imply or create
any
rights on the part of, or obligations to, any
other Person, except as specifically provided herein with respect to Subcontractors.
18.5 Compliance with Laws.
The Parties agree to comply with all Applicable
Laws, including but not limited to those relating to the manufacture,
purchase, resale, exportation, transfer, assignment or use of
the Equipment.
18.6 Conflicting Provisions.
In the event of any inconsistencies in this Agreement, the following order of precedence in the interpretation hereof or resolution of such conflict hereunder shall prevail:
(1) Duly authorized and executed
Scope Change Orders and written amendments to the Agreement
executed by both Parties, with the latest ones having precedence over the earlier ones;
(2) This Agreement.
Any differing or additional
terms
and conditions in any purchase order or other document are of no force
and
effect unless specifically accepted in writing by the Parties. PEAC
LLC failure to object to any such additional, different or conflicting terms does not operate as a waiver of the terms of this Agreement.
18.7 No Partnership Created.
Nothing contained in this Agreement shall be construed as constituting a joint venture or partnership
between PEAC LLC
and Buyer.
18.8 Captions; Shortened Names for Convenience.
The captions contained in this Agreement are for convenience
of reference only and in no way define, describe, extend or limit the scope of intent of this Agreement or the intent of any provision contained herein. Similarly, the references to Buyer and PEAC LLC
in this Agreement are shorthand used
for convenience
only.
18.9 Counterparts and Facsimile Execution.
This Agreement may be signed in any number of counterparts and each counterpart shall represent a fully executed original as if signed by
both
Parties, with all such counterparts together constituting but one and
the same instrument.
Facsimile or electronic pdf signatures of the Parties shall be deemed to constitute
original signatures and executed facsimile copies hereof shall be deemed to constitute duplicate originals.
18.10 Joint Effort.
Preparation of the Agreement has been a joint effort of the Parties and the resulting document shall not
be construed more severely against one of the Parties than against the other. Each Party represents that it has obtained the professional advice (including legal, tax and accounting advice on Applicable Laws and regulations) as
it
has deemed appropriate or convenient.
18.11 Appendixes.
All appendixes, attachments, or exhibits referenced in this Agreement shall be incorporated into this
Agreement by such reference and shall be deemed to be an integral part of
this Agreement.
18.12 Non-Waiver.
Any waiver by a Party of strict compliance with this Agreement must be in writing,
and any failure by the Parties to require strict compliance in one instance will not waive its right to insist on strict compliance thereafter.
18.13 Modification of Terms.
This Agreement may only be modified by a written instrument signed by authorized
representatives of both Parties.
18.14 Assignment.
Neither Party may assign all or part of this Agreement,
or
any rights or obligations under this Agreement, without the prior written consent of the other; but either Party may assign its rights and obligations, without recourse or consent, to any parent, wholly owned subsidiary, or Affiliate or Affiliates
successor organization
(whether as a result of
reorganization,
restructuring or sale of
substantially all of a
partys assets). However,
Buyer shall not assign this Agreement to: a competitor
of PEAC LLC; an entity
in
litigation with PEAC
LLC; or an entity lacking the financial capability
to satisfy Buyers obligations. Any assignee expressly assumes the performance of any obligation assigned. PEAC LLC may grant a security interest in this Agreement and/or assign
proceeds of this Agreement without
Buyers consent.
18.15 Severability.
If any
provision of this
Agreement is held invalid, illegal or unenforceable, the remaining provisions will not in any
way be affected or impaired. A court may modify
the invalid, illegal
or unenforceable provision to reflect,
as
closely as possible, the Parties original intent.
18.16 Survival.
The articles titled Patent and Copyright
Infringement, Limitation of Liability, Confidentiality, Title and
Risk of Loss, Indemnitees, and Export/Import Compliance,
survive termination, expiration or
cancellation of this Agreement.
End.