AGS Plasma Systems, Inc.


STANDARD TERMS AND CONDITIONS OF SALE

1.0 GENERAL

1.1 AGS Plasma Systems, together with its subsidiaries, is referred to as the “COMPANY”, and the company, agency, person or entity to whom any proposal or quotation is made or sales order is issued and/or from whom any purchase order is received is referred to as the “CUSTOMER." The terms and conditions stated in (a) COMPANY’s proposal, quotation and/or sales order to CUSTOMER, (b) CUSTOMER’S purchase order to COMPANY to the extent accepted by COMPANY and (c) any executed confidentiality or non-disclosure agreement between COMPANY and CUSTOMER, together with these Standard Terms and Conditions of Sale (these “Terms”), shall constitute the entire agreement between COMPANY and CUSTOMER (the “Agreement”).

1.2 The word “Equipment” refers, collectively, to the materials, equipment, products and services (including without limitation hardware and software products and training, programming, maintenance, engineering, parts and repair services) described in the Agreement.

1.3 THE AGREEMENT, AND COMPANY’S OBLIGATIONS TO CUSTOMER, ARE EXPRESSLY LIMITED TO AND CONDITIONED ON CUSTOMER’S ACCEPTANCE OF THESE TERMS. These Terms shall govern in any transaction contemplated by, resulting from or arising out of the Agreement regardless of any terms, conditions or provisions contained in CUSTOMER’s responses, purchase orders or other documents. CUSTOMER is hereby notified that COMPANY objects to and rejects any and all additional, different or inconsistent terms or conditions proposed by CUSTOMER in CUSTOMER’s responses, purchase orders or other documents. CUSTOMER’s acceptance of COMPANY’s proposal, quotation or sales order, including these Terms, may occur in any reasonable manner, including without limitation (a) CUSTOMER’s issuing a purchase order, authorization to proceed, commitment or contract to COMPANY or (b) COMPANY’s commencement of performance under COMPANY’s proposal or quotation with the knowledge of CUSTOMER. No response, purchase order or other document issued by CUSTOMER shall be binding on COMPANY unless accepted in writing by COMPANY.

1.4 Any purchase order received by COMPANY that is not an unqualified acceptance of a proposal, quotation or sales order issued by COMPANY shall not become an Agreement binding upon COMPANY unless accepted in writing by COMPANY.

1.5 Neither performance nor delivery by COMPANY nor receipt by COMPANY of any payment from CUSTOMER shall be deemed an acceptance of any terms or conditions in CUSTOMER’s purchase order or other documents which are in addition to, different from or inconsistent with these Terms.

2.0 ERRORS; TAXES; LICENSES AND PERMITS; HOURS

2.1 COMPANY reserves the right to correct all typographical or clerical errors contained in the Agreement.

2.2 Unless otherwise expressly stated in the Agreement, all federal, state, local and other taxes, including but not limited to sales, use, gross receipts, withholding, excise, VAT, property and any other excise tax or duties or any other similar taxes, levies or assessments arising out of or relating to the Agreement or the Equipment delivered and sold by COMPANY are in addition to the price for the Equipment stated in the Agreement. All such taxes and similar costs shall be paid by CUSTOMER. COMPANY shall have the right at any time to separately bill CUSTOMER for any such taxes and other such costs incurred, and CUSTOMER shall promptly pay or reimburse COMPANY for such taxes and other costs. If applicable, CUSTOMER shall furnish to COMPANY a valid exemption certificate on any Equipment claimed by CUSTOMER to be exempt from sales or use taxes, and shall indemnify COMPANY for all such taxes and any costs, expenses, fines, penalties and attorneys’ fees which may arise from or be associated with such taxes or claim of exemption.

2.3 CUSTOMER shall be solely responsible for procuring all export and other licenses and permits, whether Federal, State or local or those of a foreign government, and payment of all import or export duties, if any, in connection with purchase, shipment, installation and use of the Equipment.

2.4 Unless otherwise expressly stated in the Agreement, freight, delivery, transportation and/or packaging charges are in addition to the prices stated in the Agreement and shall be borne by CUSTOMER.

2.5 Unless otherwise expressly provided in the Agreement, the price has been established on the basis that any services to be furnished by COMPANY’s personnel at CUSTOMER’s installation site will be performed only on days and at times that will not require the payment of overtime or other wage premiums.

3.0 PAYMENT AND TERMS OF PAYMENT

3.1 Payment for the Equipment shall be made by CUSTOMER as and when due under the Agreement. All payments are due ten (10) days after invoice date, unless otherwise expressly stated in the Agreement. CUSTOMER shall make each payment promptly and without defense, offset, backcharge, counterclaim, abatement, suspension, recoupment or deduction . With respect to CUSTOMER’s obligation to make payment under this Section or any other provision of the Agreement, time is of the essence.

3.2 CUSTOMER’S failure to pay to COMPANY any amount when due under the Agreement shall constitute a material breach of the Agreement by CUSTOMER. COMPANY may, at its sole option, thereafter proceed to exercise any or all of the COMPANY’s remedies for breach of contract. In addition, COMPANY may charge and collect from CUSTOMER a late fee equal to one and one half percent (1.5%) of the past due amount for each month, or portion thereof, that such amount remains unpaid.

3.3 If shipment of the Equipment is delayed at CUSTOMER’s direction or due to the inability or refusal of CUSTOMER to accept delivery of the Equipment, then, regardless of the cause of delay, inability or refusal, payment shall become due as if the shipment had been made. COMPANY will store the Equipment, at CUSTOMER’s risk and expense, for a reasonable period of time.

4.0 CHANGES

4.1 CUSTOMER requested changes in connection with the Agreement, including changes in drawings, designs or specifications, or in delivery or any other obligation of COMPANY, must be submitted to COMPANY in writing. Such requested changes will become binding upon COMPANY only upon COMPANY’s prior written approval. Unless otherwise specified in the approval, CUSTOMER shall pay to COMPANY, as and when invoiced by COMPANY, amounts equal to all direct and indirect costs incurred by COMPANY as a result of the changes, plus COMPANY’s standard overhead and profit.

4.2 CUSTOMER assumes the full responsibility for and risk of any changes requested by CUSTOMER.

5.0 TERMINATION

5.1 COMPANY shall have the absolute right to terminate, or to suspend its performance under, the Agreement, or to exercise such other rights and remedies as may be permitted by applicable law, if CUSTOMER breaches or otherwise fails to comply with any of the terms and conditions of the Agreement, including but not limited to any requirement to make progress payments. In the event of such termination or suspension, CUSTOMER shall reimburse COMPANY for any and all costs, expenses and damages resulting from such termination or suspension, including without limitation all costs and expenses incurred by COMPANY in connection with performance and termination of the Agreement.

6.0 DELIVERY; TITLE; SECURITY INTEREST

6.1 Unless otherwise expressly stated in the Agreement, the Equipment shall for all purposes be deemed delivered when the carrier commences loading of the Equipment or any part thereof at COMPANY’s plant or, if the Equipment or any part thereof is placed in storage by COMPANY, when the Equipment or any part thereof is delivered to the warehouseman or storage facility. Upon such delivery, CUSTOMER shall assume responsibility for the care, custody and control of the Equipment, and the risk of loss or damage shall pass to and be borne by CUSTOMER.

6.2 Title to Equipment sold to CUSTOMER shall pass to CUSTOMER only upon payment in full for the Equipment to COMPANY. COMPANY shall retain, and CUSTOMER grants to COMPANY, a security interest in the Equipment until COMPANY’S receipt of payment in full for the Equipment.

6.3 Title to Equipment supplied to CUSTOMER on lease or consignment shall remain with COMPANY, and CUSTOMER is responsible for safeguarding the Equipment from and after delivery to CUSTOMER.

7.0 DELAYS AND FORCE MAJEURE

7.1 Shipping, delivery, service completion and/or performance dates and/or times stated in the Agreement are approximate only, and assume, among other things, prompt delivery by CUSTOMER to COMPANY of all required information and documents, including without limitation approval drawings and all other information necessary for COMPANY to perform its obligations under the Agreement. Unless otherwise expressly stated in the Agreement, COMPANY shall not be liable for any claims for damage or loss by CUSTOMER resulting from any delay in shipping, delivery or performance under the Agreement.

7.2 Any loss, damage, or delay in or failure of performance by COMPANY shall not constitute a default under the Agreement or give rise to a claim for damages if such loss, damage, delay or failure is attributable in whole or in part to any cause or causes beyond the reasonable control of COMPANY. These causes shall include, but are not limited to, any act of God or the public enemy; compliance with any order, decree, law or request of any governmental authority; act of declared or undeclared war; terrorism; public disorder; rebellion; civil unrest; sabotage; fire; flood; explosion; accident; riot; strike; labor difficulty or other concerted act of workmen, whether direct or indirect; shortages; declaration of national emergency; mobilization of industry whereby necessary material and labor are allocated or controlled; or any other cause not within the reasonable control of COMPANY or which COMPANY is unable to avoid by the exercise of reasonable care, whether or not similar to any of the causes specifically enumerated. Upon the occurrence of any such delay, the estimated time for delivery and performance shall be extended for a time equal to the delay time reasonably attributable to such cause. In the event of any such delay, COMPANY shall have the right to apportion its equipment, deliveries and performance among its customers in such manner as it may consider equitable.

8.0 INSTALLATION; TECHNICAL ASSISTANCE AND ADVICE

8.1 Unless otherwise expressly stated in the Agreement, all Equipment shall be installed by and at the expense of CUSTOMER.

8.2 Unless otherwise expressly stated in the Agreement, (a) the price does not include the services of COMPANY’s personnel for start-up, commissioning, training of CUSTOMER’s personnel or furnishing of technical advice relating to CUSTOMER’s use of the Equipment and (b) such services (and travel, living and other incidental expenses associated with such services), if requested by CUSTOMER and approved by COMPANY, will be invoiced to CUSTOMER by COMPANY in accordance with COMPANY’s then prevailing rates and practices.

9.0 WARRANTY AND LIMITATION OF REMEDIES

9.1 Equipment Warranty and Remedy: COMPANY warrants that the Equipment (but not including services or software – see Sections 9.2 and 9.3 below) fabricated and furnished by COMPANY under the Agreement shall be free from defects in workmanship and materials. CUSTOMER’s remedy for breach of this warranty shall be limited, at COMPANY’s option, to either (i) repair or replacement of the non-conforming Equipment, F.O.B. point of repair or replacement; or (ii) repayment of the portion of the price paid by CUSTOMER attributable to such non-conforming Equipment. CUSTOMER shall return the Equipment to such point of repair or replacement as COMPANY may direct, with shipping charges prepaid by CUSTOMER. Dismantling and reinstalling work is excluded from this Equipment Warranty and Remedy.

9.2 Services Warranty and Remedy: COMPANY warrants that any engineering, design or software development and programming services furnished under the Agreement will conform to standards of practice generally accepted in the profession and/or industry for services of a similar nature. If the services provided by COMPANY materially fail to conform to the warranty set forth in the preceding sentence, CUSTOMER’s remedy shall be limited, at COMPANY’s option, to revision, replacement or re-performance, at COMPANY’s expense, of those services which COMPANY reasonably determines fail to so conform.

9.3 Software Warranty and Remedy: COMPANY warrants that any software furnished under the Agreement, when used with the Equipment as provided in the Agreement, shall conform with the specifications set forth in the Agreement or, in the case of standard software, in accordance with published specifications prepared, approved and issued by COMPANY’s headquarters in San Jose, California. If any software furnished by COMPANY hereunder materially fails to conform to the warranty set forth in this Section 9.3, CUSTOMER’s remedy shall be limited to correction of the non-conformance by COMPANY, at COMPANY’s expense. COMPANY makes no representation or warranty, express or implied, that the operation of the software will be uninterrupted or error free, or that the functions contained therein will meet or satisfy CUSTOMER’s intended use or requirements.

9.4 Warranty Period: The warranties set forth in Sections 9.1 and 9.3 above shall be effective for a period ending twelve (12) months after the date of shipment of the Equipment from COMPANY’s plant. The warranty set forth in Section 9.2 above shall be effective for a period ending twelve (12) months after the date of performance of the services.

9.5 Warranty Conditions and Limitations:

(a) CUSTOMER’s right to enforce the foregoing warranties is expressly conditioned upon CUSTOMER notifying COMPANY in writing during the Warranty Period of any alleged defect or non-conformity, stating specifically the nature of the alleged defect or non-conformity. COMPANY shall have the right, upon such notification, to review, inspect and/or examine the Equipment. CUSTOMER shall, at CUSTOMER’s cost, make the Equipment available to COMPANY for inspection purposes at such location, including without limitation COMPANY’s facilities, as COMPANY shall direct.

(b) The foregoing warranties shall not apply if COMPANY’s review, inspection or examination discloses that the Equipment (i) has not been installed, maintained or operated in accordance with COMPANY’s instructions; (ii) has been used by CUSTOMER in a manner or for applications not recommended by COMPANY; (iii) has been repaired, altered or modified by CUSTOMER; (iv) has been subjected to other than normal use, storage, handling, installation, operation or maintenance; or (v) has been damaged by fire, water, act of God, any cause covered by CUSTOMER’s insurance or any other event or occurrence not caused by COMPANY.

(c) The foregoing warranties shall not apply to Equipment, or parts or components thereof, which are not manufactured or processed by COMPANY, or which are purchased by COMPANY from another party or parties. The manufacturer’s warranty for such Equipment, parts or components, if any, shall be assigned to CUSTOMER without recourse to COMPANY.

(d) The foregoing warranties shall not apply to designs, materials or specifications furnished or specified by CUSTOMER and incorporated into the Equipment.

9.6 THE EXPRESS WARRANTIES AND REMEDIES SET FORTH IN THIS SECTION 9 ARE EXCLUSIVE AND ARE CONDITIONED UPON TIMELY NOTIFICATION BY CUSTOMER. THEY ARE GIVEN BY COMPANY AND ACCEPTED BY CUSTOMER IN LIEU OF ANY AND ALL OTHER REMEDIES, WARRANTIES AND GUARANTEES, EXPRESSED OR IMPLIED, AND IN LIEU OF ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY SPECIFICALLY EXCLUDED AND DISCLAIMED.

9.7 COMPANY neither assumes, nor authorizes any representative or other person to assume for it, any warranty obligation or liability other than as expressly set forth in this Section 9. Any change, modification, extension or addition to the foregoing warranties, remedies or limitations shall not be binding upon COMPANY unless in writing and duly executed by an authorized officer of COMPANY.

10.0 LIMITATION OF LIABILITY

10.1 It is specifically agreed that, except as expressly provided in Section 9 above, COMPANY shall have no liability, whether claimed in contract, warranty, equity, tort (including negligence, gross negligence and strict tort liability) or otherwise, for or resulting from any defect or non-conformity in the Equipment.

10.2 COMPANY SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (OR EQUIVALENTS THEREOF NO MATTER HOW CLAIMED, COMPUTED OR CHARACTERIZED) ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ITS PERFORMANCE OR ANY BREACH OF THE AGREEMENT BY COMPANY, OR ARISING OUT OF OR IN CONNECTION WITH ANY BREACH OF WARRANTY OR WITH ANY DEFECT OR NON-CONFORMITY IN THE EQUIPMENT, SERVICES AND/OR SOFTWARE PROVIDED HEREUNDER, REGARDLESS OF WHETHER ANY SUCH LIABILITY SHALL BE CLAIMED IN CONTRACT, WARRANTY, EQUITY, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE AND STRICT TORT LIABILITY) OR OTHERWISE. By way of example of the foregoing limitation of liability, but without limiting in any manner its scope or application, COMPANY shall not be liable for all or any part of the following no matter how claimed, computed or characterized: labor, downtime, loss of profit or revenue, loss of return on investment, cost of capital, loss of operating time or production, loss or reduction of use or value of any facilities (including existing facilities), expense of replacement products or parts, or increased costs of operations or maintenance.

10.3 Any claim or action for breach of the Agreement shall be deemed settled and forgiven in full unless commenced within eighteen (18) months after the date of shipment of the Equipment from COMPANY’s plant or, in the case of services, within eighteen (18) months after the date of performance of said services.

10.4 The limitation of liability contained in this Section shall be effective without regard to COMPANY’s performance, or failure or delay of performance, under any other term or condition of the Agreement.

10.5 In all cases where CUSTOMER is responsible for contracting for the supply of services, facilities or equipment based on drawings, specifications or other engineering data prepared by COMPANY, COMPANY’s liability and obligation shall be limited to correcting COMPANY’s errors, if any, in such drawings, specifications or other engineering data as COMPANY has prepared, and COMPANY will have no liability or obligation for the repair, replacement or alteration of any such service, facility or equipment.

11.0 INDEMNITY

11.1 CUSTOMER hereby agrees to indemnify, defend and hold harmless COMPANY from and against any and all claims, demands, actions, causes of action, damages, liabilities, judgments and costs and expenses, including attorneys’ fees, attributable to bodily injury, sickness, disease or death of any person or persons, or to injury to or destruction of tangible property, including loss of use resulting therefrom, which COMPANY may incur and which may arise out of any act, omission, negligence or gross negligence of CUSTOMER, its representatives, employees, agents or invitees, including but not limited to: failure to properly install and align the Equipment; failure to maintain the Equipment in good and safe working condition; failure to install necessary external guarding, warning signs and labels and/or warning devices; failure to retain in place all guarding and other protective equipment and warning devices and labels furnished by COMPANY or the manufacturer; and failure to properly instruct and train all operators and other CUSTOMER personnel in the safe and proper operation and maintenance of the Equipment. The defense and indemnification obligations set forth herein shall not be limited by any limitation on amount or type of damages, compensation or benefits payable by or for CUSTOMER or a subcontractor of CUSTOMER under any workers’ or workmen’s compensation acts, disability benefit acts or other employee benefit acts.

12.0 RETURN OF STANDARD CATALOG PRODUCTS

12.1 Return of standard catalog products, other than for warranty claims under Section 9, is subject to the following conditions and to Section 12.2:

(a) CUSTOMER must request return by written notice delivered to COMPANY within thirty (30) days after the original shipping date.

(b) A "RETURN GOODS AUTHORIZATION” number must be obtained from COMPANY prior to any return of Equipment and that number must accompany all Equipment returned by CUSTOMER to COMPANY. Equipment not accompanied by a “RETURN GOODS AUTHORIZATION” number may be refused by COMPANY and returned at CUSTOMER’s expense.

(c) CUSTOMER shall prepay shipping charges for Equipment returned to COMPANY.

(d) Equipment returned to COMPANY should be properly crated for shipment, and CUSTOMER shall bear the risk of loss until the Equipment is delivered to, and its return is accepted by, COMPANY.

(e) Equipment returned to COMPANY must be returned in the condition originally received by CUSTOMER and free from damage, use or modification.

(f) All applicable taxes, duties, insurance, and shipping charges shall be the sole responsibility of CUSTOMER.

(g) Equipment returned for other than warranty repair shall be subject to a restocking charge of twenty (20%) percent of the original sales price of the returned item.

12.2 Return of Equipment shall be in the sole discretion of COMPANY.

13.0 SERVICE CALLS

13.1 Unless otherwise expressly stated in the Agreement, service calls by COMPANY’s personnel shall be made at the expense of CUSTOMER.

14.0 INTELLECTUAL PROPERTY

14.1Ownership of and title to all intellectual property rights associated with the Equipment (including without limitation any patents, copyrights or trade secrets in any inventions or software furnished under the Agreement) shall remain with and be vested solely in COMPANY, its subcontractors, suppliers and/or licensors. Neither the Agreement nor COMPANY’s supply of the Equipment hereunder shall constitute an offer, nor imply an obligation on the part of COMPANY, to make any patents, patent rights or copyrights in, or license to manufacture, the Equipment available to CUSTOMER or any third party having a contractual relationship with CUSTOMER.

14.2 All information and intellectual property furnished or supplied to CUSTOMER by COMPANY, its agents or employees pursuant to the Agreement, including but not limited to drawings, specifications, software, techniques and/or inventions (collectively, “Information”) constitute the confidential, proprietary information of COMPANY and/or its subcontractors, suppliers or licensors. CUSTOMER agrees for itself and its successors not to give away, disclose, loan, exhibit or sell to any third party or to any employee not directly employed in the proper use of the Equipment any Information furnished or supplied by COMPANY or reproductions thereof, and CUSTOMER agrees, for itself and its successors, employees, representatives and agents, not to use any such Information except in connection with COMPANY’s use of the Equipment. Any other use of the Information without the express written permission of COMPANY is prohibited and shall be at CUSTOMER’s sole risk and liability. CUSTOMER further agrees to cause every employee, representative or agent having access to such Information to be bound by an appropriate confidentiality agreement binding that employee, representative and agent to the foregoing restrictions in the same manner and to the same extent as CUSTOMER is bound. CUSTOMER agrees that it shall be responsible, and liable to COMPANY, for any loss or damage arising from any use or disclosure of Confidential Information by CUSTOMER’s employees, representatives and agents in violation of this Agreement or in violation CUSTOMER’s confidentiality agreements with CUSTOMER’s employees, representatives and agents. COMPANY assumes no responsibility whatsoever and shall not be held liable for any damages which may be incurred by CUSTOMER by the unauthorized use of any Information provided by COMPANY.

The duty of confidentiality and non-disclosure under this Section 14.2 shall not apply to any Information that: (a) is or becomes public knowledge through no act or omission of CUSTOMER; (b) is received by, or otherwise made available to, CUSTOMER from an independent person or entity which does not owe a duty of confidentiality to COMPANY in connection with the Information disclosed; (c) is already in the possession of CUSTOMER at the time of receipt from COMPANY, as documented by pre-existing records of CUSTOMER; or (d) is developed independently by CUSTOMER without any breach of this Agreement and without reference to or use of any of the Information. Further, if CUSTOMER is required to disclose Information pursuant to any applicable law or judicial or governmental order, it may do so to the extent so required after promptly notifying COMPANY thereof and furnishing to COMPANY any associated subpoena, demand or similar documents and a summary of the circumstances related thereto.

14.3 In the event and to the extent that Sections 14.1 and 14.2 conflict with any other confidentiality or non-disclosure provisions in the Agreement, those other provisions shall control to the extent necessary to resolve such conflicts.

14.4 Subject to the following provisions, COMPANY shall at its own expense defend or, at its option, settle any claim, suit or proceeding brought against CUSTOMER to the extent based on a claim that any Equipment or any part thereof designed or fabricated by COMPANY and furnished and/or licensed hereunder constitutes a direct infringement of any United States patent or copyright existing on the date of shipment of the Equipment by COMPANY. This obligation shall be effective only if (i) CUSTOMER promptly notifies COMPANY in writing of any such claim, suit or proceeding; (ii) CUSTOMER shall have made all payments then due under the Agreement; (iii) CUSTOMER gives COMPANY the sole right to defend or control the defense of the claim, suit or proceeding, including settlement; and (iv) CUSTOMER provides COMPANY with all necessary information and assistance for the defense of said claim, suit or proceeding. If the Equipment is judicially determined to infringe, and the use of such Equipment is enjoined, COMPANY’s obligation under the Agreement will be satisfied if COMPANY, at its option and expense, either: (a) procures for CUSTOMER the right to continue using said Equipment or part thereof; (b) replaces said Equipment or part thereof with non-infringing equipment; (c) modifies the Equipment or part thereof so as to make it non-infringing; or (d) accepts the return of the infringing portion of the Equipment and refunds the purchase price for that portion. In no event shall COMPANY be liable for any consequential damages arising out of any such infringement, including but not limited to damages based upon product output. THIS SECTION 14.4 STATES THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO THE EQUIPMENT’S INFRINGEMENT OF PATENTS AND COPYRIGHTS, AND IS IN LIEU OF ANY WARRANTIES OR OTHER ASSURANCES, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY SUCH INFRINGEMENT OF INTELLECTUAL PROPERTY.

14.5 The agreement to defend and indemnify set forth in Section 14.4 above does not apply to the following: (a) patented processes performed by the Equipment, or other equipment or materials produced thereby; (b) Equipment supplied according to a design other than that of COMPANY or its subcontractors or suppliers; (c) Equipment made in accordance with materials, designs, requirements or specifications furnished or designated by CUSTOMER; (d) any use of the Equipment in combination with other equipment, products or materials not designed or furnished by COMPANY; (e) Equipment modified, changed or altered after delivery to CUSTOMER; or (f) any settlements of a suit or proceeding made without COMPANY’s written consent. If a suit or proceeding is brought against COMPANY solely on account of activities enumerated in items (a), (b), (c), (d) or (e) above, CUSTOMER agrees to defend and indemnify COMPANY in the same manner and to the same extent COMPANY agrees to defend and indemnify CUSTOMER in Section 14.4 above.

14.6 The Equipment to be provided by COMPANY hereunder may include items not designed or developed by COMPANY or its subcontractors or suppliers. COMPANY shall not be liable for any claim, suit or proceeding brought against CUSTOMER based upon a claim that such Equipment or any part thereof infringes any patent, copyright, or license rights. All such Equipment shall carry only the indemnity protection, if any, obtained from the supplier or manufacturer as the case may be.

15.0 LICENSE

15.1 Upon delivery of the Equipment, COMPANY shall grant to and/or procure for CUSTOMER (a) a nonexclusive, nontransferable, royalty-free license to use any proprietary computer software designed and developed by COMPANY and/or its subcontractors or suppliers that is required to operate or maintain the Equipment; and (b) a nonexclusive, nontransferable, royalty-free license to use any inventions or other intellectual property conceived or made by COMPANY which are incorporated into the Equipment; PROVIDED, however, that CUSTOMER shall use any such proprietary software, inventions and/or intellectual property only to operate or maintain the Equipment at CUSTOMER’s plant or facility.

15.2 To the extent that the Equipment incorporates proprietary software, processes and/or products not designed or developed by COMPANY or its subcontractors or suppliers, CUSTOMER shall be responsible for paying any applicable license fees and royalties to the respective owners of the patent rights, copyrights or other intellectual property rights in such Equipment.

16.0 LAW AND FORUM

16.1 The Agreement, its administration and performance, and all rights, obligations, liabilities and responsibilities of COMPANY and CUSTOMER, shall be governed by and construed in accordance with the laws of the State of California, without regard to its choice of law provisions. All claims, disputes, controversies and other matters in question arising out of or related to the Agreement or a breach of the Agreement shall likewise be determined by recourse only to the courts of the State of California, or in the federal district court in San Francisco, California, and CUSTOMER hereby acknowledges and consents to the jurisdiction of said courts to decide said issues. Notwithstanding the foregoing sentence, in the event COMPANY is sued or subjected to any other action or proceedings in any other state or forum, COMPANY shall have the right to join CUSTOMER and prosecute its claims, or any one or more of them, against CUSTOMER in such other suit, action or proceeding.

17.0 SURVIVAL

17.1 The provisions of the Agreement shall, where the context so requires, continue in full force and effect notwithstanding any termination or suspension of the Agreement or the issuance of any payment, and nothing in the Agreement shall affect the rights of COMPANY or the obligations of CUSTOMER hereunder from so continuing in full force and effect.

18.0 MISCELLANEOUS

18.1 The Agreement shall inure to the benefit of and be binding upon the successors, legal representatives and assigns of the parties hereto. Any attempt by CUSTOMER to assign the Agreement, or any part thereof, without COMPANY’s prior written consent shall be null and void.

18.2 The Agreement (a) expresses the complete and final understanding of COMPANY and CUSTOMER with respect to the subject matter of the Agreement, (b) supersedes all prior understandings, writings, representations, letters of intent and CUSTOMER documents and (c) shall not be altered, modified or changed in any way except by an instrument in writing signed by the duly authorized representatives of COMPANY and of CUSTOMER. The Agreement is severable such that the invalidity or unenforceability of any part or provision shall not affect the validity or enforceability of any other part or provision of the Agreement.

18.3 Failure by COMPANY to exercise any or all of its rights under the Agreement in the event of a breach of the Agreement by CUSTOMER shall not be construed as a waiver of any other breach.

18.4 All rights and remedies of COMPANY as set forth in the Agreement shall not be deemed exclusive, but are cumulative to all other remedies and rights of COMPANY arising at law, in equity, common law, case law or statute or otherwise.

18.5 The subject headings and/or titles to Sections of these Terms are to facilitate reference only and do not form a part of and shall not in any way affect the interpretation of these Terms.

19.0 OSHA

19.1 The Equipment supplied by COMPANY is designed to meet OSHA Requirements (as defined below) (a) applicable at the time of COMPANY’s proposal or quotation and (b) without regard to the CUSTOMER’s site environment. If, after the Equipment is installed, CUSTOMER determines that the Equipment at that site does not meet then prevailing OSHA Requirements, any remedial work shall be the responsibility of and be at the expense of CUSTOMER.

19.2 COMPANY shall not be responsible for any failure of the Equipment to comply with the safety requirements of the Occupational Safety and Health Act of 1970 Regulations, as amended (the “OSHA Requirements”) which results from or is a consequence of: (i) CUSTOMER’s failure to use the Equipment in accordance with COMPANY’s instructions; (ii) the alteration, modification or repair of any Equipment by persons other than COMPANY; (iii) the omission of an option or accessory for the Equipment where such option or accessory was available to the CUSTOMER and omitted at the direction of CUSTOMER; (iv) design instructions or specifications furnished by CUSTOMER; or (v) a violation of an OSHA Requirement not in effect on the date of COMPANY’s proposal or quotation.


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