1.Acceptance. This Proposal is subject to written acceptance by the Buyer within 30 days from the date hereof, and, if not accepted within said period of time, this Proposal shall terminate. This Proposal shall become a binding contract if accepted by Buyer within said period of time.
2. Delivery: Any statement relating to date of delivery or date of completion represents Seller’s best estimate, but said date of delivery or completion is not guaranteed. Delay shall not constitute grounds for cancellation or for damages. Unless otherwise herein specified, the equipment shall be delivered F.O.B. point of manufacture.
3. Force Majeure: Seller shall not be liable for any loss or damage of any nature whatsoever incurred or suffered as a result of any failures or delays in performance due to any cause or circumstances beyond its control, including, but not by way of limitation, any failures or delays in performance caused by any strikes, lockouts or labor disputes, fires, acts of God or the public enemy, riots, incendiaries, interference by civil or military authorities, compliance with the laws of the United States or with the orders or policies of any governmental authority, delays in transit or delivery on the part of transportation companies or communication facilities or failures of sources of raw material which are not due to Seller’s neglect in placing orders or seeking alternate sources of raw material. In the event of such delay, the time for delivery or completion shall be extended by a period of time equal to the period of delay plus such time as needed for start-up and/or remobilization. In the event the Force Majeure situation shall extend longer than six months, then in that event Seller shall, at its option, have the privilege of canceling the Contract. In such event, Buyer shall reimburse Seller for all costs and expenses (including overhead costs) which Seller may have reasonably incurred in closing out the Contract, plus an amount as reasonable profits on that portion of the Contract which has been completed.
4. Title and Risk of Loss: Title and risk of loss for the equipment shall pass to Buyer upon delivery of the equipment F.O.B. point of manufacture or upon notice of completion of mechanical erection should Seller be responsible for performing erection. Title to and risk of loss of the equipment shall pass to Buyer in no other way, notwithstanding any agreement to the contrary, including any agreement to pay freight, express, or other transportation or insurance charges.
5. Payment: Terms of payment are net 30 days from date of invoice unless otherwise identified in the proposal. Should any invoice or portion thereof be disputed, only the disputed portion may be withheld pending resolution within a reasonable period of time. All undisputed portions shall be paid within terms. In the event payment by the Buyer is not made when due, Buyer shall pay interest on any overdue amount at the rate of 1.5% per month from the due date until payment without prejudice to any other rights of the Seller.
6. Taxes: Prices stated herein are exclusive of any taxes, excises, or other governmental charges applicable to the equipment herein described. Seller’s invoices shall include as a separate item, any and all taxes, excises or other governmental charges imposed upon Seller by reason of its performance hereunder, except taxes based upon net income of Seller and /or privilege taxes. Buyer shall pay all property and other taxes which may be levied, assessed or charged against or upon the equipment after the date of actual shipment, or placing into storage for Buyer’s account.
7. Warranties: Unless otherwise identified in the proposal, Seller hereby warrants to Buyer that the equipment herein described will be free from any liens or encumbrances, and that good title to said equipment will be conveyed to Buyer. Seller warrants equipment of its own manufacture against defects in material and workmanship under normal conditions of usage and service, notwithstanding corrosion of any type, for eighteen (18) months from date of shipment. Equipment not manufactured by Seller shall receive such warranty, if any, of the manufacturer thereof and which are hereby assigned to Buyer without recourse to Seller; Seller agrees to act as a liaison with a manufacturer of equipment supplied hereunder regarding any warranty claims if requested by Buyer. Subject to the limitation of Section 17 hereof, Seller’s sole obligation and Buyer’s sole remedy under this warranty is limited to and shall be fully discharged by repairing or replacing any defective part F.O.B. point of manufacture. Seller shall not be liable for repair or alterations made without Seller’s prior written approval. Seller shall not be liable for damages or delay caused by defective material or workmanship.
8. Patent Infringement: Except for equipment manufactured by Seller based on specifications or drawings furnished by Buyer, Seller shall, subject to the limitation of Section 17(c) hereof, defend at its expense any suit, action or proceeding brought against Buyer based upon any claim that the equipment supplied hereunder infringes any United States patent which has been issued on or before the date of Seller’s Proposal and pay any damages and costs awarded therein against Buyer, if promptly notified by Buyer in writing of such claim and given authority, information and assistance by Buyer (at Seller’s expense) to conduct such defense. In lieu of defending Buyer in such suit, action or proceeding, Seller may, at its expense and option, either procure for Buyer the right to use the equipment or modify it so that it no longer infringes, or replace it with non-infringing equipment. The foregoing constitutes the entire responsibility and liability of Seller for patent infringement.
9. Changes: Buyer shall have the right during the progress of the work to request in writing, additional work, or deletion of any work covered hereunder; provided, however, that such changes do not materially affect the scope of work, and provided that such changes are not, in the Seller’s judgment, inconsistent with sound engineering principals or the Seller’s guarantees, warranties, and/or responsibilities hereunder. If such changes result in any increase or decrease in the work to be performed by Seller, or the cost thereof, or the cost of equipment and materials to be furnished by the Seller, the resulting change to the contract price shall be agreed upon in writing before such changes are effected; provided, that Seller shall be entitled to continue the performance of its work hereunder regardless of any proposed change until such agreement in writing is made. If such requests for changes and/or such changes result in any delay in the completion of the Seller’s work hereunder, the estimated time of completion shall be correspondingly extended by written agreement between the parties before the changes are effected.
10. Termination: Buyer may terminate the contract for convenience upon notifying Seller in writing of such fact and paying Seller for all costs and expenses (including overhead) incurred by it in performing its work and closing out the same, plus a reasonable profit based on the total price of the Contract.
11. Indemnification: If Seller’s work under the Contract requires its presence on Buyer’s premises, Seller shall indemnify and save Buyer harmless against all losses or claims for bodily injury (including death) and property damage the proximate cause of which is Seller’s willful or wanton acts or its active negligence. Seller’s liability to indemnify and save Buyer harmless shall be limited to and co-extensive with Seller’s insurance.
12. Compliance with laws, codes, standards and regulations:
- a) In the event that the performance required of Seller hereunder violates any applicable law, ordinance or regulation, Seller shall, upon Buyer’s written direction, modify its performance hereunder so as to comply therewith, but any additional cost incurred thereby shall be borne by Buyer
- b) Seller shall follow industrial codes and standards (in effect as of the date of Seller’s Proposal), which are referenced in Buyer’s specifications, insofar as said code or standard is customary within the air pollution control industry.
- c) Buyer has full responsibility for obtaining any licenses, permits and inspections required with respect to installation and use of the equipment herein described.
13. Drawings: All drawings or technical data furnished to Buyer by Seller hereunder shall remain the property of the Seller and Buyer shall have the use of said drawings or technical data for the limited purpose of maintaining and operating the equipment sold hereunder.
14. Waivers: Seller’s waiver of any breach or failure to enforce any of the terms, conditions and specifications of the Contract shall not in any way affect, limit or waive Seller’s right thereafter to enforce and compel strict compliance with every term, condition and specification hereof.
15. Assignment: Neither party may assign the Contract, without the other party’s prior written consent, except either party may assign said contract, without consent, to any corporation owned or controlled by said party or to any corporation into which said party is consolidated or to which the business of said party directly related to the Contract is sold or conveyed.
16. Governing Law: The Contract and the obligations thereby imposed on Seller and Buyer shall be governed by and construed according to the laws of the State of Texas.
- a) THERE ARE NO WARRANTIES ESTABLISHED HEREIN, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THE WARRANTY OR MERCHANTABILITY, EXCEPT THOSE EXPRESSLY STATED IN SECTION 7 ABOVE AND IN ANY “PERFORMANCE GUARANTEE” HERETO ATTACHED.
- b) IN NO EVENT BE IT DUE TO BREACH OF ANY WARRANTY HEREUNDER OR ANY OTHER CAUSE ARISING OUT OF PERFORMANCE OR NONPERFORMANCE OF THE OBLIGATIONS HEREIN, WHETHER ANY SUCH BREACH OR CAUSE BE OR SOUND IN TORT, CONTRACT OR OTHERWISE, SHALL SELLER BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF PROFITS, PLANT DOWNTIME, COST OF REPLACEMENT POWER, OR SUITS BY THIRD PARTIES AGAINST BUYER, EXCLUDING SUITS REGARDING TITLE TO THE EQUIPMENT FURNISHED HEREUNDER, PATENTS UNDER SECTION 8 HEREOF, OR PERSONAL INJURIES OR PROPERTY DAMAGE UNDER SECTION 11 HEREOF.
- c) SELLER’S TOTAL CUMULATIVE LIABILITY HEREUNDER FOR ANY AND ALL REASONS, EXCLUDING ONLY SELLER’S LIABILITY PURSUANT TO SECTION 11 HEREOF, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE CONTRACT PRICE.
18. Entire Agreement: This Proposal, together with such other sheets and documents as may be attached as may be attached hereto or referred to herein, when approved by Seller, shall constitute the entire agreement between the parties. No change in, addition to, or waiver of the terms, conditions and specifications contained herein shall be a binding obligation on Seller unless approved in writing by its authorized representation.